Bobby Ray Foreman v. State ( 2002 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00077-CR ______________________________



BOBBY RAY FOREMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th Judicial District Court Harris County, Texas Trial Court No. 878198

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Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss

O P I N I O N

Bobby Ray Foreman has filed an appeal from his conviction on his plea of guilty, pursuant to a plea agreement, for the offense of possession with intent to deliver a controlled substance. The court assessed his punishment at thirty-five years' imprisonment. Foreman was represented by appointed counsel at trial and by different appointed counsel on appeal.

Counsel filed a brief on June 27, 2002, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), and has accordingly also filed a motion to withdraw.

Counsel sent Foreman a copy of the brief and a letter outlining in detail his position that there were no arguable contentions of error and informing Foreman of his right to review the record and file a pro se brief. On our receipt of the brief and supporting letter, we informed Foreman by letter that any pro se brief must be filed on or before July 29, 2002. We have received no communication from Foreman since that time.

Counsel has filed a brief which discusses the record and reviews the proceedings, providing a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced, as required by High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). See also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel also reviewed the representation by appointed counsel at trial as reflected by the record and has concluded the record does not suggest trial counsel was ineffective. Counsel concluded from his review of the record that there is no arguable point of error to support the appeal.

We have reviewed the record in light of counsel's brief. We agree with counsel that there are no arguable points of error in this case.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 5, 2002

Date Decided: September 19, 2002

Do not publish

ate final hearing was set, . . . ." Clark's request for appointment of an attorney to represent him, however, was not granted until approximately two weeks before the first setting of the final hearing.

Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon 2002) requires a trial court to appoint an attorney ad litem to represent the interest of an indigent parent who responds in opposition to a suit in which termination of the parent-child relationship is requested. Such appointment is mandatory. In re T.V., 8 S.W.3d 448, 449 (Tex. App.-Waco 1999, no pet.). This provision is in obvious recognition of the inability of most-if not all-indigent parents to defend against such a serious matter as the termination of parental rights without the assistance of counsel. To obtain such assistance, all the statute requires of an indigent parent is to respond in opposition to the suit.

After being served with notice of suit to terminate his parental rights, Clark promptly filed a single document in which he responded in opposition to the suit, requested the appointment of an attorney ad litem, and requested that he be bench warranted from prison to attend the termination hearing. The record does not reflect that he purported to represent himself in any other way in these proceedings. He expressly testified at one of the hearings as to his need for an attorney. It is reasonable to assume that Clark, as a nonlawyer, was not aware of Rule 216 and that most people in Clark's situation would have thought that such a fundamental right as trial by jury would be automatic.

Obviously, Clark's counsel never had an opportunity to comply with Rule 216. He filed a request for jury trial on behalf of his client at his first opportunity, but this was well within thirty days before the trial setting. In Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139 (Tex. App.-Texarkana 1993, pet. denied), we held that, when compliance with Rule 216 is made impossible by failure to give the notice required by Rule 245, a demand for a jury trial made within thirty days of the trial setting will be deemed timely. Id. at 141. Here, compliance with Rule 216 was made impossible for Clark's court-appointed attorney ad litem by the lateness of his appointment. Just as the thirty-day period required by Rule 216 had to be expanded in Bell Helicopter because of the failure to give the forty-five days' notice required by Rule 245, so must it be expanded here because of the late appointment of Clark's counsel. See In re V.R.W., 41 S.W.3d 183, 195 (Tex. App.-Houston [14th Dist.] 2001, no pet.). We hold that the request for a jury trial made by Clark's counsel was timely. To hold otherwise has the potential of opening the door to repeated denial of a jury trial to countless other indigent parents who appear in the various courts throughout this State in opposition to the termination of their parental rights.

Appellee also contends that any error in the denial of Clark's right to a jury trial was harmless because no material issues of fact existed and an instructed verdict would have been justified. None of the cases cited by appellee, however, were termination cases involving the best interests of children. In addition to finding by clear and convincing evidence one of the acts enumerated in Section 161.001 of the Family Code, a court order to terminate parental rights must also find that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon 2002). Clark testified extensively at the final hearing and repeatedly denied that termination of his parental rights would be in the best interests of his children. This testimony was sufficient to defeat any motion for an instructed verdict.

Rights that inure in the parent-child relationship are of constitutional dimensions. Stanley v. Illinois, 405 U.S. 645 (1972); In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In re N.K., 54 S.W.3d 499, 502-03 (Tex. App.-Texarkana 2001), vacated & remanded without reference to the merits, 89 S.W.3d 29 (Tex. 2002). Because the involuntary termination of parental rights is complete, final, and irrevocable, trial court proceedings ordering termination must be strictly scrutinized. N.K., 54 S.W.3d at 503. Likewise, as we stated in Bell Helicopter, the right to a jury trial as guaranteed by our Constitution is one of our most precious rights and the denial of that right is a very serious matter. "Restrictions placed on the right to a jury trial will be subjected to the utmost scrutiny." Bell Helicopter Textron, Inc., 863 S.W.2d at 141. Applying such scrutiny to the facts of this case, Clark should not have been deprived of those constitutional rights "that inure in the parent-child relationship" without the benefit of his constitutional right to a jury trial.

The judgment is reversed and the case remanded to the trial court for a jury trial.

Donald R. Ross

Justice

Date Submitted: April 30, 2003

Date Decided: June 13, 2003