in the Interest of Rachel Marie Circone and Angela Rene Circone, Children ( 2003 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00050-CV

______________________________

 

 

 

IN THE INTEREST OF

RACHEL MARIE CIRCONE AND

ANGELA RENE CIRCONE, CHILDREN

 

 

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On Appeal from the 247th Judicial District Court

Harris County, Texas

Trial Court No. 99-56232

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

          Lori Circone has appealed from an order rendered pursuant to a mediated settlement agreement modifying possession of the children and directing her to pay child support to her former husband, John Circone.

          Lori contends that, during a hearing opposing entry of the mediated settlement agreement, the trial court erred by refusing to allow counsel to question the attorney ad litem about a number of matters concerning his activities in connection with the mediation, that the court erred by failing to require the attorney ad litem to present a fact-finding that the agreement was in the best interests of the children, and that the court erred by concluding a party cannot withdraw consent to a mediated settlement after the requirements of Tex. Fam. Code Ann. § 153.0071(d) (Vernon 2002) have been met. She also contends the court made erroneous findings that there was no defense to a mediated settlement agreement and by failing to prepare additional findings of fact and conclusions of law on request.

          There are several procedural anomalies in this proceeding. Findings of fact in connection with a child support order are to be requested "[w]ithout regard to Rules 296 through 299, Texas Rules of Civil Procedure" if the request is filed within ten days after the date of the hearing or in open court. Tex. Fam. Code Ann. § 154.130(a), (b)(1),(2) (Vernon 2002). Counsel made no request for findings in open court, and the written request for findings was not filed until March 12, 2003, ninety days after the hearing that resulted in the order on appeal. Even if Rule 296 did apply in this case, it requires such a request to be made within twenty days after the judgment is signed. Tex. R. Civ. P. 296. The order was signed December 13, 2003, the date of the hearing. Thus, under any set of circumstances, the request was untimely.

          The trial court nevertheless chose to sign a document entitled "COURT'S RESPONSE TO RESPONDENT'S REQUEST FOR FINDINGS OF FACT AND CONCLUSION OF LAW." That document was sent to this Court as part of an appendix to appellant's brief. Attachments to briefs are not part of the record of a case. Thereafter, the trial court sent this Court a file-marked, signed copy of the document. There are specific rules governing the preparation of a clerk's record. They were not followed. The document was not certified by the district clerk and was not bound or labeled. In this particular instance, because it appears the document was sent to this Court from the trial court, and because counsel has not argued it is either incorrect or incomplete, and because, in light of our disposition of this case, the document is not critical, we will treat it as a part of this record. We warn all involved, however, that we will not often give any verity to any "loose" documents from any source presented to this Court without proper certifications, and do so in this instance only because the document is not of vital importance to our disposition of the appeal.

          In that document, the trial court found that the request was improper for a number of reasons, but nevertheless then made (pursuant to Tex. R. Civ. P. 296) "Limited Findings of Fact and Conclusions of Law" in which it found that the mediation was proper and controlling and held that a party cannot avoid rendition based on the mediated settlement agreement by attempting to withdraw consent after the requirements of Tex. Fam. Code Ann. § 153.0071(d) had been met. The court did not enter any findings pursuant to the Family Code.

          The contentions raised in this appeal are an attempt to show that the trial court erred in its application of the alternative dispute resolution procedures of the Family Code. The relevant text follows.

Alternate Dispute Resolution Procedures

(a) On written agreement of the parties, the court may refer a suit affecting the parent-child relationship to arbitration. The agreement must state whether the arbitration is binding or non-binding.

 

(b) If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator's award unless the court determines at a non-jury hearing that the award is not in the best interest of the child. The burden of proof at a hearing under this subsection is on the party seeking to avoid rendition of an order based on the arbitrator's award.

 

(c) On the written agreement of the parties or on the court's own motion, the court may refer a suit affecting the parent-child relationship to mediation.

 

(d) A mediated settlement agreement is binding on the parties if the agreement:

 

(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;

 

(2) is signed by each party to the agreement; and

 

(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.

 

(e) If a mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

Tex. Fam. Code Ann. § 153.0071 (Vernon 2002).

          Counsel does not take the position that there is any defect in the agreement or that the mediated settlement agreement does not comply with subsection (d). Counsel argues appellant should be able to withdraw her consent to the agreement. To support that position, he argues the court erred by refusing to permit him to introduce evidence about the actions or inaction of the attorney ad litem representing the children. That is not contemplated by the statute. In a binding arbitration context, the Code provides opportunity for a nonjury hearing to show that the award is not in the best interest of the child, and the Code expressly allows the trial court to avoid rendition of an order based on that award. Tex. Fam. Code Ann. § 153.0071(b).

          This is not an arbitration proceeding. It is a mediation that took place pursuant to Section 153.0071(c)-(e). Those subdivisions specifically provide that, so long as the requirements of the statute are met as to the form of the agreement, a party is entitled to judgment notwithstanding Tex. R. Civ. P. 11 or "another rule of law." If those requirements are met, as they are in this case, the Family Code contains no language allowing the trial court to review the mediation and explicitly requires the court to enter judgment based on the mediation agreement.

          Two courts have reviewed this statute and have applied the statute as written. The Corpus Christi court held that a trial court is required to enter judgment on a mediated settlement–even when the mediation is not under the direction of the court. In re J.A.W.-N., 94 S.W.3d 119, 121 (Tex. App.‒Corpus Christi 2002, no pet.). The Eastland court analyzed a case similar to this one and held that, in a mediated settlement agreement context under this statute, even if one party "withdrew consent," the trial court was required to enter judgment on the agreement. Alvarez v. Reiser, 958 S.W.2d 232, 233-34 (Tex. App.‒Eastland 1997, pet. denied) (also containing discussion of change in application due to changes in statutory language).

          Under the terms of this statute, the trial court had no authority to go behind the signed agreement of the parties, which explicitly (as required by statute in the alternative) stated in underlined capital letters the agreement was not subject to revocation. The agreement was signed, and the specific term was also initialed by appellant. The statute requires the trial court to render judgment on the mediated agreement. Appellant's arguments might be reviewable on appeal had this been an arbitration proceeding. However, they have no application to this mediation proceeding under the express terms of Tex. Fam. Code Ann. § 153.0071(c)-(e).

          We affirm the judgment.  

 

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      December 1, 2003

Date Decided:         December 3, 2003

nions if the requirements of Rule 701 are met. Id. at 537. The court found that it did not take an expert to identify the smell of marihuana smoke and that a witness who is familiar with the odor of marihuana smoke through past experiences can identify the substance. Id.

Section (a) of Rule 701, addressing lay opinions, has been said to have two elements. Harnett v. State, 38 S.W.3d 650, 657-59 (Tex. App.--Austin 2000, pet. ref'd). The first element involves the personal knowledge of the witness as required by Rule 602. See Tex. R. Evid. 602. The necessary personal knowledge may be gained by perception of fact by the senses of the witness. Harnett, 38 S.W.3d at 658. The second element mandates that the opinion must be one a reasonable person could draw from the underlying facts. Id. The requirements of Section (b) of Rule 701 are clear. Under Rule 701, much must be left to the discretion of the trial court. Id. at 658; Austin v. State, 794 S.W.2d 408, 410 (Tex. App.--Austin 1990, pet. ref'd). If the witness perceived events and formed an opinion that a reasonable person could draw from the facts, then the first part of the rule is met. If the opinion is also helpful to the trier of fact to understand the witness' testimony or aids in the determination of a fact in issue, then the opinion is admissible under Rule 701. It is possible, and certainly within the trial court's discretion, that this testimony qualified as lay opinion.

Regarding the arrest incident to the search warrant, in November 2004, Trooper Perry testified Hayes was found to have $1,238.00 on his person and some of it was in small denomination bills ($5s, $10s, and $20s), which is used in buying small amounts of controlled substances. He also testified to the incongruity of an individual receiving disability benefits having the financial means to rent an Escalade motor vehicle. If this is opinion testimony, it certainly does not require significant expertise to interpret these facts and it does not involve a scientific theory. Even if these events are not normally encountered by most people in everyday life, it does not require expert testimony to observe that drugs are dealt most commonly in small $20.00 increments and that one involved in that endeavor would be required to be able to "make change."

Further stating that one who has no visible means of support is normally unable to afford to drive a Cadillac Escalade is nothing more than the exercise of common sense. If these statements from these two witnesses were opinions, they were perceptions based on their personal knowledge combined with the application of their experiences from their life, not from scientific theories. No expert testimony was involved, and counsel was not acting deficiently by failing to request a hearing to determine the expert qualifications and reliability of the testimony of these two witnesses.

Other cases have allowed the introduction of evidence of lay opinion testimony on numerous matters. See, e.g., Williams v. State, 191 S.W.3d 242, 253-54 (Tex. App.--Austin 2006, no pet.) (police officer designated as a "mental health officer" after attending a forty-hour course was permitted to testify that suspect did not exhibit signs characteristic of someone having a mental health issue); Cortez v. State, No. 2-05-147-CR, 2006 Tex. App. LEXIS 4998 (Tex. App.--Fort Worth June 8, 2006, pet. ref'd) (mem. op., not designated for publication) (officer testified from his training and experience that, many times when police find surveillance cameras and scales around a house, drugs are present); Livingston v. State, Nos. 01-04-00955-CR, 01-04-00956-CR, 01-04-00957-CR, 01-04-00958-CR, 2006 Tex. App. LEXIS 2234, at *3 (Tex. App.--Houston [1st Dist.] Mar. 23, 2006, pets. dism'd [4 pets.], pets. ref'd [4 pets.]) (mem. op., not designated for publication) (witness permitted to testify boat smelled "like cigarettes, stale beer, and like sweaty sex"); In re J.A.M., No. 03-02-00610-CV, 2003 Tex. App. LEXIS 8662 (Tex. App.--Austin Oct. 9, 2003, no pet.) (witness allowed to testify of her interpretation of gestures describing drowning a cat).

Counsel cannot be deemed ineffective for failing to object to this testimony, and any Strickland complaint necessarily fails. Cf. Ex parte Thompson, 179 S.W.3d 549, 559-60 (Tex. Crim. App. 2005) (defendant not entitled to jury charge on lesser-included offense; therefore, counsel not ineffective for failing to request); McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992) (not ineffective assistance of counsel for attorney to fail to object to admissible evidence).

Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993). The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson, 9 S.W.3d at 813. We find that, under these circumstances and based on the state of the record before us, Hayes has not carried that burden. This point of error is overruled.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: January 16, 2008

Date Decided: February 1, 2008

Do Not Publish

1. All three indictments allege possession with intent to deliver; the State abandoned the delivery allegations.

2.

Please see our opinions in cause numbers 06-06-00229-CR and 06-06-00231-CR, both styled Hayes v. State, issued on even date with this opinion.

3. Hayes only alleges the evidence is insufficient without designating whether he is referring to legal or factual sufficiency, or both. We will use the usual standards of review. In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

In a factual sufficiency review, we review all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). The difference between the standards for legal and factual sufficiency is that legal sufficiency requires the reviewing court to defer to the jury's credibility and weight determinations while factual sufficiency permits the reviewing court to substitute its judgment for the jury's on these questions "albeit to a very limited degree." Marshall, 210 S.W.3d at 625.

4.

See Tex. Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2007).

5. Perry testified as follows:

I looked in the -- I looked inside the driver's side window and the seat was kind of torn and I saw like a napkin stuck under the -- it would be the outer skin of the [seat]. I opened the door and pulled it out and opened it up and that's when I find another napkin or paper towel inside that contained what I recognized as crack cocaine. . . . [looking at an exhibit / picture ] . . . These are the paper towels that the crack was contained inside the Ford pickup that was underneath the skin of the seat, the cover of the seat.