in the Interest of T.N.F., H.R.F., H.R.F. & H.R.F., Children ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00327-CV

In the Interest of T.N.F., H.R.F., H.R.F., JR. and H.R.F.,

Children

From the 82nd District Court

Robertson County, Texas

Trial Court No. 04-02-16857CV

dissenting  Opinion to abatement order

          “GONE FISHING” is the sign to hang on this court’s order delaying this accelerated appeal of the termination of parental rights case by abating it so that Appellant can utilize a procedure created by the Tenth Court of Appeals to try to find some evidence to show that Tammy was prejudiced by counsel’s alleged ineffectiveness. I dissent to the Abatement Order for the reasons set out in my Dissenting Opinion to Abatement Order in In the Interest of K.K., 180 S.W.3d 681, 2005 Tex. App. LEXIS 8647, *17 (Tex. App.—Waco 2005, order) (Gray, C.J., dissenting).  For the convenience of the reader, that dissenting opinion is set out in full in the Appendix to this dissenting opinion.  Probably the most frustrating aspect of ordering this procedure is that no one, other than the majority, has asked for it.  That explains why this dissenting opinion may, at times, read more like a response to a motion to abate than a dissenting opinion.  The problem is that the party who has filed the motion also has the authority to grant it.  It is not surprising that the motion is granted.

The full text of Tammy’s brief on the subject of prejudice for all three of her allegations of ineffective assistance of counsel is as follows:

Demonstrating that Fulton’s trial counsel provided Fulton with deficient representation during trial is not sufficient to establish that Fulton was denied effective assistance of counsel.  In re M.S., 115 S.W.3d at 545.  Fulton must also show that her counsel’s deficient performance prejudiced her case.  Here it is axiomatic that there is prejudice because legal and factual insufficiency challenges have been waived.

Fulton’s counsel’s performance was more than inadequate.  He did not prepare for trial by instituting a course of written or oral discovery, and then complained to the trial court about his inability to prepare.  (Appendix 1, 6 RR 6-9).  On top of that, with an obvious conflict with Fulton, he revealed attorney-client privileged information (without permission).  He then effectively waived any right to appeal on any ground except ineffective assistance, which was the very ground that he informed the court he would refute by going to this Court if necessary.  Fulton’s counsel’s conduct therefore prejudiced Fulton’s defense, and thus Fulton was denied the effective assistance of counsel.

PRESERVATION OF ISSUE FOR APPELLATE REVIEW

With regard to the first allegation of ineffective assistance of counsel, failure to preserve legal and factual sufficiency issues, we should do the same thing we did in Taylor v. Brazoria County Children's Protective Servs. Unit, No. 10-03-00148-CV, 2004 Tex. App. LEXIS 8729 (Tex. App.—Waco Sept. 29, 2004, no pet.) (mem. op.), when we reviewed the sufficiency of the evidence and determined that the parent was not prejudiced by counsel’s failure to perfect a factual sufficiency point when the evidence was, in fact, factually sufficient.  It seems somewhat ludicrous to abate this proceeding so that trial counsel can testify that the reason he did not take steps necessary to perfect legal or factual sufficiency issues is because it is against his ethical duties to take actions which are wholly frivolous or without arguable merit.

          Further, and more compelling, is that the appellant has not asserted that the evidence is legally or factually insufficient.  Appellant has only argued and briefed the ineffective assistance of counsel for the failure to preserve the issues.  The only reference to prejudice – Strickland’s second-prong – is that the issues are therefore waived on appeal.  But if the evidence is in fact legally and factually sufficient, the appellant has failed to establish, or even argue, any prejudice.  Failure to preserve a meritless issue is not ineffective assistance of counsel.  See Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd) ("Trial counsel is not ineffective for failure to make meritless objections.").

          The majority contends this argument is classic circular reasoning and disingenuous.  It is circular reasoning and disingenuous only if you fail to properly apply the law.  Each of Tammy’s allegations of ineffective assistance of counsel must be viewed independently.  The majority has endeavored to enhance their arguments for abatement by making them dependent upon one another.  They are not.

          The evidence in the record is legally or factually insufficient, or it is not.  If the evidence in the record is not legally or factually insufficient, there can be no prejudice to Tammy as a result of her attorney not preserving these issues.  Thus, failure to preserve an evidentiary sufficiency issue, without more, cannot constitute prejudice.

          It does not matter if there is evidence outside the record which is identified in the hearing.  Evidence outside the current record will not become part of the evidentiary sufficiency review to determine prejudice for failure to preserve the legal and factual insufficiency issues.

          If, as a result of other alleged grounds of ineffective assistance of counsel, it is shown that the attorney did not effectively contest the State’s evidence or did not offer mitigating evidence, we do not add that evidence to the record and re-determine the evidentiary sufficiency issues.  We independently determine whether the ineffectiveness giving rise to that failure, the conflict or the failure to conduct pretrial discovery, prejudiced Tammy. 

CONFLICT WITH CLIENT

          As to the allegation of ineffective assistance of counsel with regard to counsel’s alleged conflict with his client, we have the record of the proceeding wherein that alleged conflict was addressed by the trial court.  This is not a traditional conflict of interest.  The record demonstrates that Tammy was not working with her appointed counsel, but had made the decision to rely upon counsel appointed to represent Ray.  The record reflects she informed her counsel to contact Ray’s and, in response to a specific inquiry about witnesses, that Ray’s witnesses were her witnesses.  She is an adult.  She made her choice.  We should not second guess her or her appointed counsel at this juncture.

And before we abate this case, it would seem appropriate to at least require someone to identify some specific additional evidence not in the record, or at the very least argue why it is suspected that some favorable evidence was not in the record, due to the ineffective assistance of counsel rather than abating this case for a fishing expedition. In this appeal, no one has explained or argued what additional evidence or argument, if any, would be available to show prejudice as a result of this allegation of ineffective assistance of counsel.  Because we have the record relevant to this issue, there is no need to abate this proceeding for further development of a record.

CONDUCTING DISCOVERY

          Likewise, on the allegation of ineffective assistance of counsel due to the failure to conduct discovery, the record contains the explanation and discussion of why no discovery was engaged in by the attorney.  The record also includes the trial court’s admonition to Tammy to cooperate with counsel.  And again, as to this allegation of ineffective assistance of counsel for failure to conduct discovery, there is not even an allegation of what additional information might be obtained in a hearing on a motion for new trial to support the argument that counsel was ineffective by failing to conduct discovery.  Specifically, there is no allegation of what additional evidence might have been discovered that would have been helpful to Tammy’s case; thus, there is no showing of prejudice, Strickland’s second-prong.  Further, and dispositive of this allegation, is that the record affirmatively shows that Tammy made the decision to rely on the discovery conducted by one of the other parties. This is not ineffective assistance by her appointed counsel.

CONCLUSION

          There is simply no reason to delay the consideration of this accelerated appeal by engaging in an ill-advised procedure created by this Court.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed March 22, 2006

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APPENDIX TO DISSENTING OPINION

The text of Chief Justice Gray’s Dissenting Opinion to Abatement Order in

In the Interest of K.K, 180 S.W.3d 681, 2005 Tex. App. LEXIS 8647, *17-18

(Tex. App.—Waco 2005, order) (Gray, C.J., dissenting)

      I dissent to the new procedure created out of whole cloth by the majority.

      The hostility continues—unabated.  See In re M.A.H., No. 10-02-00234-CV, 2004 Tex. App. LEXIS 6913, at *8-*9 (Tex. App.—Waco July 28, 2004, no pet.) (Gray, C.J., dissenting).  Is it effective assistance of counsel or is it now the appointment of effective counsel?  See Brice v. Denton, 135 S.W.3d 139, 146-51 & nn.1-3 (Tex. App.—Waco 2004) (Gray, C.J., dissenting), pet. denied sub nom. Denton ex rel. A.R.B. v. Brice, No. 04-0391, 2005 Tex. LEXIS 380 (Tex. May 13, 2005) (order) (not designated for publication).  The appellate counsel has the option to proceed simultaneously with a writ of habeas corpus to develop any factual record needed to show counsel’s conduct and reasons for it.  See Tex. Fam. Code Ann. § 161.211(a)-(b) (Vernon 2002); see generally Brice at 155 n.6 (Gray, C.J., dissenting).

          I would affirm the trial court’s judgment.  More later if this order is set aside by mandamus; if not, then after the appeal is reinstated.

* The Legislature again amended the statutes governing the appointment of counsel for indigent parents in suits affecting the parent-child relationship in its last session.  E.g., Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 1.06, 2005 Tex. Sess. Law Serv. 621, 623 (Vernon) (to be codified at Tex. Fam. Code § 107.013(c)); id. § 1.07, 2005 Tex. Sess. Law Serv. at 623 (to be codified as an amendment of Tex. Fam. Code Ann. § 107.015(c) (Vernon Supp. 2004-2005)).

END OF APPENDIX

Affirmed

Opinion delivered and filed October 1, 1997

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