in the Interest of E. M. M. a Child ( 2006 )

NO. 07-06-0126-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 10, 2006 ______________________________

IN THE INTEREST OF E.M.M. _________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

NO. 2005-529,976; HON. RUSTY LADD, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J. ⁽¹⁾

Ramon Montelongo, Jr., appeals pro se from an order appointing Adelina Perez as sole managing conservator of E.M.M.; Montelongo was appointed possessory conservator. ⁽²⁾ In his brief, appellant asserts that 1) he was unaware that custody of the child and the visitation rights of his parents would be determined in the same proceeding, 2) he lacked opportunity to obtain counsel for the trial, 3) he lacked notice of the hearing and opportunity to prepare for it, and 4) the final order contained provisions not discussed at the trial. We affirm the order.

First, we note that appellant appeared at the trial of this matter, as did the attorney he hired to represent him against pending criminal charges. The latter attorney informed the trial court that his client, Montelongo, "through me appearing pro bono in this matter, wants to raise" an issue. The issue, however, did not involve any complaint raised at bar. Nor did he complain to the trial court about lacking counsel to advise him or of insufficient prior notice of the hearing. Similarly absent is any objection to the trial court's consideration of both custody of the child and visitation by third parties in the same proceeding. Therefore, any error that may have arisen was waived. Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex. 1988) (stating that the failure to object or request a continuance waives error when the trial court proceeds to consider matters a party did not believe would be considered at a particular hearing).

As to matters purportedly being included in the final order that went unmentioned at trial, appellant does not tell us of what those matters consist. Nor does he explain how the circumstance purportedly harmed him. This is of concern because an appellant must include in his brief clear and concise argument for the contentions made with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Moreover, the failure to adequately brief an issue results in its waiver. Sunnyside Feedyard, L.C. v. Metropolitan Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.-Amarillo 2003, no pet.). So, due to inadequate briefing, Montelongo waived his complaint about the supposed deviation between what was said at the hearing and the substance of the final order. ⁽³⁾

Accordingly, we overrule his points of error and affirm the judgment.

Brian Quinn

Chief Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2006).

2. The record shows that appellant is incarcerated, and the child's mother is deceased.

3.

A pro se plaintiff must follow the applicable laws and rules of procedure. Holt v. F. F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.-Amarillo 1998, pet. denied).

its own records. Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 171 (1943).

In relevant part, article 55.01 provides that a person who has been placed under arrest for a felony is entitled to have all records and files relating to the arrest expunged if the person is tried for the offense for which he was arrested and is acquitted by the trial court with the exception that such an expungement may not be ordered if "the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode." Tex. Code Crim. Proc. Ann. art. 55.01(a)(1)(A) & (c) (Vernon Supp. 2006).

The Penal Code defines a criminal episode as "the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or (2) the offenses are the repeated commission of the same or similar offenses." Tex. Pen. Code Ann. §3.01 (Vernon 2003).

The nature of this proceeding requires us to make somewhat detailed references to our January 12, 1989 opinion in Cause No. 07-87-0283-CR referred to by the trial court in its order denying expunction. Examination of that opinion reveals that the murder charge of which appellant was acquitted and the burglary charge upon which he was convicted arose out of a sequence of events that occurred in Castro County on June 6, 1985. Robert Ballard and his wife Frances were awakened during the night by their dog barking. Mrs. Ballard saw the reflection of lights on a car turning into their residence's circular drive. A few moments later she again heard her dog barking, got out of bed, and saw two men coming around the corner of a residence located on the property speaking together in the Spanish language. They unsuccessfully tried to quiet the dog.

She notified her husband, but he did not get out of bed because he thought they would leave when they found no one was at home in the residence. Later, however, Mrs. Ballard noticed some dim lights on in the house and again awakened her husband. After telling her to lock the door behind him, Mr. Ballard took a gun and went outside. She heard him ask the men if they had a key to the other residence and other conversation she could not understand. She then heard a vehicle start, she heard a shot from her husband's gun, and she heard him say "I told you to leave and I meant it." Mrs. Ballard additionally heard him tell the dog to charge. She then heard two more shots followed by the sound of the vehicle leaving the scene. She went outside and found her husband lying unconscious by the side of the other residence and he died without regaining consciousness. Later investigation revealed that the other residence had been broken into, several items moved, and appellant's fingerprints were found on a kerosene lamp located inside that residence.

Appellant was initially charged with capital murder, murder, and burglary of a habitation. However, prior to trial, the capital murder and burglary charges were dismissed, and the State proceeded to trial on the murder charge. That trial resulted in the acquittal giving rise to this expunction proceeding. Later, appellant was indicted for burglary and, after a claim of double jeopardy as to the burglary was denied, the case proceeded to trial and appellant was convicted of burglary, which was affirmed by this court primarily because of the fingerprint evidence found inside the other residence which necessarily must have been made at the time of an illegal entry.

Our review of this background satisfies us that the trial court was entitled to take judicial notice of the factual history of this proceeding and that it was justified in the conclusion that the offense for which appellant was acquitted arose out of the same criminal episode that resulted in appellant's conviction of burglary. That being so, the trial court did not abuse its discretion in refusing to expunge the records pertaining to the murder charge. See Tex. Code Crim. Proc. Ann. art. 55.01(c) (Vernon Supp. 2006).

John T. Boyd

Senior Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).