in Re: State of Texas ( 2004 )

NO. 07-04-0088-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MARCH 5, 2004

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IN RE STATE OF TEXAS, RELATOR

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Before JOHNSON, C.J. and REAVIS, JJ. and BOYD, S.J. ⁽¹⁾

ORDER ON PETITION FOR WRIT OF PROHIBITION

By this original proceeding, relator, the State of Texas, seeks a writ of prohibition to compel the Honorable Ron Enns, Judge of the 69th District Court of Dallam County, to stay all further proceedings in the trial court until such time as this Court rules on the merits of a pending appeal styled State of Texas v. Brenda Thaxton in cause number 07-04-0032-CR. Thaxton was indicted for child endangerment for conduct that allegedly lead to the death of her son by her boyfriend Nathan Felder. Felder's direct appeal is also pending in this Court in cause number 07-03-0260-CR.

Article 2.07 of the Texas Code of Criminal Procedure (Vernon Supp. 2004), provides that when an attorney for the State is disqualified, absent, or otherwise unable to perform the duties of the office in any case or proceeding, the judge of the court may appoint an attorney to perform the duties. The clerk's record in Felder's direct appeal contains an order signed April 27, 2001, appointing "JOHN NEAL or any ASSISTANT ATTORNEY GENERAL FOR THE STATE OF TEXAS" as attorney pro tem for the purpose of prosecuting the case against Felder.

The pending petition for writ of prohibition is brought by Assistant Attorney General Laura Bayouth Popps, in her capacity as District Attorney Pro Tem. However, nothing in the limited record filed demonstrates that the trial court appointed an Assistant Attorney General to bring this action. Thus, the Court directs that Laura Bayouth Popps show her standing to initiate and prosecute this original proceeding on or before March 18, 2004, before any further action can be taken.

It is so ordered.

Per Curiam

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

ht: 0.416667in; margin-bottom: 0.104167in">          I join in the Court’s opinion, and write simply to add that, were we to find that the merits of this father’s appellate contentions were preserved for our review, I still would affirm the trial court’s judgment. I cannot agree with appellant’s contention the evidence that termination of his parental rights is in the best interest of his children is insufficient, legally or factually. The children ranged in ages from four to thirteen at the time of trial. Their mother’s parental rights have been terminated. Their father is incarcerated and may remain so until 2016. He could present no plan for the care of the children until his release. Those facts, coupled with the evidence of a history of family violence and other criminal conduct, were sufficient, in my view, to permit the trial court to find termination of the father’s parental rights in the best interest of the children. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2004) (legal sufficiency standard). The contrary evidence, showing appellant desired to maintain a relationship with his children, and had participated in programs and taken other steps to address his destructive behaviors, is not insignificant. Considering the entire record, however, the evidence permitted the trial court reasonably to form a firm belief or conviction termination was in the children’s best interest. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency standard).

                                                                           James T. Campbell

Justice