in the Interest of M.M., a Child ( 2019 )

AFFIRMED and Opinion Filed September 11, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00329-CV
IN THE INTEREST OF M.M., A CHILD
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-17-01300-W
MEMORANDUM OPINION
Before Justices Whitehill, Molberg, and Reichek
Opinion by Justice Whitehill
The Texas Department of Family and Protective Services filed this suit to terminate
Father’s parental rights as to M.M., his minor child. The trial court granted that relief after a jury
trial.
Father appeals and raises six issues. We overrule them for the following reasons: (i) the
trial court didn’t violate the Family Code § 263.401 deadlines; (ii) Father hasn’t shown that he
received ineffective assistance of counsel; (iii) Father lacks standing to complain that an intervenor
wasn’t allowed to supplement her petition during trial; (iv) Father hasn’t shown error or harm in
the trial court’s ruling admitting Father’s murder conviction into evidence; and (v–vi) Father didn’t
preserve his evidentiary sufficiency challenges to certain jury findings. Accordingly, we affirm.
I. BACKGROUND
A. Facts
We draw these facts from the trial evidence.
Mother and Father were in a long-term relationship and began living together shortly before
their daughter M.M. was born in March 2011. At that time Mother also had possession of two
other children who were hers but not Father’s.
In early November 2015, Father’s mother (Grandmother) came to the United States from
Greece, where she lived, for a visit. Mother and Father were planning to get married later that
month.
On Friday, November 13, 2015, Father left for work and took Grandmother with him.
Mother took the three children to school and returned home. She went into the kitchen, where
someone shot and killed her. The police eventually concluded that Father had arranged for two
people to go to his home and murder Mother. The suspected motive was that Father and Mother’s
relationship was troubled and Father didn’t want to pay child support or lose any property when
they separated.
B. Procedural History
On November 16, 2015, Child Protective Services received a referral that one of M.M.’s
older siblings had been sexually abused by his father (not the appellant in this case). During the
CPS investigation, M.M. was temporarily placed with the Graces, who were a family that Mother
and Father knew.
In February 2016, the Department filed a petition seeking temporary conservatorship of
M.M.
In June 2016, Father was arrested for Mother’s murder.
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On December 22, 2017, the parties in the conservatorship case signed a Rule 11 agreement
in which they agreed to nonsuit their various claims in the case. That same day, the trial court
signed an agreed order granting the nonsuits, and the Department filed a new original petition
commencing the instant suit for conservatorship of M.M. and termination of Father’s parental
rights.
The Graces filed an intervention petition asking the court to appoint them as M.M.’s joint
managing conservators. Grandmother also filed an intervention petition asking the court to appoint
her sole managing conservator.
In September 2018, Father was convicted of capital murder and sentenced to life
imprisonment. We take judicial notice that he has appealed his conviction and his appeal is
currently pending before this Court as No. 05-18-01200-CR.
In November 2018, the trial judge signed an order extending its jurisdiction in the instant
case until July 5, 2019.
The case was tried before a jury in February 2019. The jury found by clear and convincing
evidence that several predicate facts for termination were true and that terminating Father’s
parental rights was in M.M.’s best interest. The jury also found that the Department should be
appointed M.M.’s managing conservator. The trial judge signed a judgment terminating Father’s
parental rights and appointing the Department as M.M.’s permanent managing conservator.
Father timely appealed.
II. ISSUES
We summarize Father’s six issues as follows:
1. This lawsuit violated the strict time mandates of Family Code § 263.401.
2. Father received ineffective assistance of counsel.
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3. The trial court erred by denying Grandmother’s motion for leave to file a
supplemental petition in intervention and by striking the supplemental
petition.
4. The trial court erred by admitting Father’s conviction into evidence.
5. The evidence is legally and factually insufficient to support the jury’s
finding that termination was in M.M.’s best interest.
6. The evidence is legally and factually insufficient to support appointing the
Department as M.M.’s managing conservator.
III. ANALYSIS
A. Issue One: Did the trial court violate Family Code § 263.401’s deadlines by
entertaining the Department’s current lawsuit?
No, there was no § 263.401 violation on the facts of this case because Father waived the
deadline in the prior case and the trial commenced within the deadline in the refiled case.
Father argues that the agreed nonsuit of the prior case and the Department’s refiling of
essentially the same case violated the Family Code. Specifically, § 263.401 provides that, in
certain family law cases filed by the Department, the trial court must commence trial on the merits
within a year after the trial court renders an order appointing the Department as temporary
managing conservator. See generally TEX. FAM. CODE § 263.401. The court can extend the
deadline 180 days under certain circumstances. Id. § 263.401(b).
The legislature amended § 263.401 during the first conservatorship suit regarding M.M.
The amendments took effect on September 1, 2017, and they apply only to cases filed on or after
that date. In re T.W., 557 S.W.3d 841, 843 n.2 (Tex. App.—Amarillo 2018, pet. denied) (citing
Act of May 28, 2017, 85th Leg., R.S., ch. 319, § 33, 2017 Tex. Gen. Laws 713, 735).
Under the version of § 263.401 governing the prior suit, the deadline was not jurisdictional,
and the parties could waive it. See In re Dep’t of Family & Protective Servs., 273 S.W.3d 637,
641–42 (Tex. 2009) (orig. proceeding). Here, there’s no showing that Father made a § 263.401
complaint during the prior suit, and Father signed a Rule 11 agreement agreeing that the prior suit
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would be dismissed and the Department would “without delay” file a new suit affecting the parent–
child relationship including a petition for termination of parental rights. Thus, Father waived any
complaint that the prior suit ran longer than the statutory deadline. Because prior law allowed
parties to waive the § 263.401 deadline, Father’s argument that the Rule 11 agreement violated the
statute is without merit.
Once a suit governed by § 263.401 is dismissed without prejudice, the Department may
refile the suit and assert the same termination grounds as before. In re K.Y., 273 S.W.3d 703, 708
(Tex. App.—Houston [14th Dist.] 2008, no pet.). The Department exercised that prerogative here
after the first suit was dismissed without prejudice. The refiled suit was governed by current
§ 263.401, so the new deadline was jurisdictional, and dismissal would have been automatic if the
court hadn’t met the deadline. See FAM. § 263.401(a), (c). But Father hasn’t posited or shown a
§ 263.401 violation in the current suit. The current suit was filed on December 22, 2017, and the
trial court signed an order appointing the Department as M.M.’s temporary managing conservator
on January 5, 2018. The trial court granted the statutory 180-day extension in November 2018, so
the February 2019 trial was timely.
We reject Father’s argument that the Rule 11 agreement and refiling violated § 263.401
and conclude that the § 263.401 deadlines started anew when the Department filed the current
termination case. See In re K.Y., 273 S.W.3d at 708.
We overrule Father’s first issue.
B. Issue Two: Did Father receive ineffective assistance of counsel that prejudiced his
case?
No. Father raises four arguments under this issue. Regarding the first three arguments, the
record does not affirmatively demonstrate that counsel’s conduct fell outside the wide range of
reasonable professional assistance. Father’s fourth argument is inadequately briefed.
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1. Applicable Law
An indigent parent has a statutory right to counsel in parental termination cases. See In re
A.F., No. 05-17-00392-CV, 2017 WL 4116945, at *3 (Tex. App.—Dallas Sept. 18, 2017, no pet.)
(mem. op.). That right includes the right to effective counsel. Id.
Ineffective assistance of counsel can be raised for the first time on appeal in termination
cases. Id. at *5.
The appellant must show that (i) counsel made such serious errors that he or she didn’t
function as “counsel” guaranteed by the Sixth Amendment and (ii) the errors prejudiced the
appellant, meaning they were so serious as to deprive the appellant of a fair trial whose result is
reliable. Id. at *3.
We must give great deference to counsel’s performance, indulging a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. Any
allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record.
Id.
The prejudice prong requires a showing that there is a reasonable probability that the result
would have been different but for counsel’s unprofessional errors. Id. But we presume prejudice
in certain circumstances, including when (i) an indigent parent was denied counsel at a “critical
stage” of the litigation or (ii) counsel entirely failed to subject the Department’s case to appropriate
adversarial testing. Id. at *4. The second basis for presumed prejudice requires that counsel “was
not merely incompetent but inert”; bad lawyering will not support a presumption of prejudice. In
re K.B., No. 05-17-00428-CV, 2017 WL 4081815, at *7 (Tex. App.—Dallas Sept. 15, 2017, no
pet.) (mem. op.).
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2. Applying the Law to the Facts
The record shows that Father was indigent and had appointed counsel. Father argues that
counsel was ineffective in four respects.
a. Pleadings
Father first argues that his lawyer failed to file a pleading that would have allowed the court
to make Grandmother and the Graces joint managing conservators or sole/possessory conservators.
He argues that this failure harmed him by resulting in a jury charge that required the jury to pick
only one managing conservator from among the Department, the Graces, and Grandmother. He
also argues that we should presume prejudice because counsel’s failure was an entire failure to
subject the Department’s case to adversarial testing.
But, as the Department argues, Father has not shown that he ever told his lawyer that
allowing the Graces to participate in a joint conservatorship with Grandmother was an outcome he
wanted. Instead, Father points to portions of his trial testimony in which he said that he thought
Grandmother was M.M.’s best option but that M.M. might need to transition away from living
with the Graces. Elsewhere in his testimony, however, Father’s testified simply that he preferred
M.M. to live with Grandmother, and, failing that, with Father’s ex-wife or another friend. And
Grandmother’s intervention petition requested permanent or sole managing conservatorship of
M.M., so the pleadings already raised some of Father’s ostensibly preferred relief. In any event,
we find no record evidence that Father ever told his lawyer that the pleadings didn’t match Father’s
goals in the case, or that Father’s lawyer failed to consult with him about the pleadings.
Because the record doesn’t affirmatively demonstrate that counsel’s handling of Father’s
pleadings fell outside the wide range of reasonable professional assistance, we reject Father’s first
argument.
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b. Rule 11 Agreement
Next Father argues that counsel was ineffective because counsel didn’t advise him not to
enter the Rule 11 agreement that led to the agreed nonsuit order dismissing the Department’s first
lawsuit regarding M.M. But Father refers us to nothing in the record substantiating this point. An
ineffective assistance claim fails if the record doesn’t affirmatively demonstrate that counsel’s
conduct fell outside the wide range of reasonable professional assistance. Here, the silent record
doesn’t affirmatively show that counsel failed to give Father reasonable professional assistance
regarding the Rule 11 agreement. Thus, we reject Father’s argument.
c. Inadequate Time to Consult
Father’s third argument is that he wasn’t given enough time to consult with his lawyer
during the trial. But in support he quotes portions of the record showing that both he and his
lawyer asked the trial judge for more time to consult as the trial proceeded. The trial judge rejected
those requests, saying that Father was getting the same amount of time to consult as the other
parties in the case. Because the record doesn’t affirmatively demonstrate that counsel’s conduct
in this regard fell outside the wide range of reasonable professional assistance, we reject Father’s
third argument.
d. Failure to Object
Finally, Father asserts that counsel was ineffective because he didn’t object to certain
evidence. Father’s brief states, without record references or any legal authorities aside from a one-
sentence summary of Texas Rule of Evidence 401, that counsel should have objected to
“documents from the criminal cases of Jesus Trevino and James Villeda” and to “documents
involving Debbie Strait’s criminal issues.” Additionally, Father’s brief doesn’t address the
prejudice element of ineffective assistance beyond a bare assertion that counsel’s failure to object
“led the jury to be overwhelmed by irrelevant ‘bad’ evidence.”
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To address this argument’s merits, we would have to (i) guess which exhibits Father is
complaining about and (ii) construct substantive arguments for him about whether relevancy
objections under Rule 401 would have succeeded, whether failure to object could have been a
reasonable trial strategy, and whether the evidence deprived him of a fair trial. We conclude that
Father’s fourth argument is inadequately briefed. See TEX. R. APP. P. 38.1(i); Bolling v. Farmers
Branch Indep. Sch. Dist., 315 S.W.3d 893, 895–96 (Tex. App.—Dallas 2010, no pet.).
We overrule Father’s second issue.
C. Issue Three: Did the trial court reversibly err by refusing to let Grandmother
supplement her intervention petition?
Father lacks standing to assert his third issue because he wasn’t injured by the striking of
another’s party’s pleading.
In February 2018, Grandmother filed an original petition in intervention requesting that
she be appointed M.M.’s sole managing conservator or permanent managing conservator. Voir
dire began on February 4, 2019. On February 5, 2019, Grandmother filed a supplemental
intervention petition asking the court to appoint her joint managing conservator or possessory
conservator. The trial court considered the pleading the next morning and signed an order both
denying Grandmother leave to file the supplemental petition and striking the supplemental petition.
Father argues that the trial court erred by striking Grandmother’s supplemental intervention
petition because (i) no parties would have been prejudiced by allowing the supplement and (ii) the
issues raised in the supplement were tried by consent during Grandmother’s opening statement.
The Department responds that Father lacks standing to complain about the striking of
Grandmother’s supplemental intervention petition.
We agree with the Department. An appellant may not complain of errors that do not injure
him or that merely affect others’ rights. Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 988
S.W.2d 750, 752 (Tex. 1999) (per curiam). Here, Father argues that the erroneous striking of
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Grandmother’s supplemental petition led to a jury charge that didn’t include options such as joint
conservatorship. But Father doesn’t show that allowing Grandmother’s supplementation would
have benefited him, either regarding the jury questions directed at terminating his rights or in any
other way. Thus, we conclude that Father lacks standing to raise his third issue, and we do not
address its merits. See In re J.P., 196 S.W.3d 434, 439 (Tex. App.—Dallas 2006, no pet.)
(appellant whose parental rights were terminated lacked standing to appeal order striking
intervention petition by appellant’s sister).
D. Issue Four: Did the trial court reversibly err by admitting Father’s criminal
conviction into evidence?
No. We conclude that the trial court did not abuse its discretion by admitting Father’s
criminal conviction into evidence because it was relevant to an issue besides Father’s character for
truthfulness, namely M.M.’s best interest. See In re Estate of Miller, 243 S.W.3d 831, 836 (Tex.
App.—Dallas 2008, no pet.) (evidentiary rulings are reviewed for abuse of discretion). Moreover,
we conclude that Father has not shown harm. See TEX. R. APP. P. 44.1(a).
While Father was on the stand, the Department offered a copy of Father’s conviction into
evidence. Father’s lawyer objected that the conviction was inadmissible because the conviction
was on appeal. The trial court overruled the objection and admitted the evidence.
Father argues that the trial court erred under Texas Rule of Evidence 609(e). Rule 609(a)
makes a witness’s criminal conviction admissible to attack the witness’s character for truthfulness
if certain conditions are met. See TEX. R. EVID. 609(a). But Rule 609(e) provides, “A conviction
for which an appeal is pending is not admissible under this rule.” Id. 609(e). Father testified
(albeit later that day, after his conviction had been admitted) that his conviction is on appeal.
The Department responds that Father’s conviction was admissible for purposes other than
attacking his truthfulness, such as showing whether placing M.M. with Father was in her best
interest. We agree. See Murray v. Tex. Dep’t of Family & Protective Servs., 294 S.W.3d 360,
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365, 369–70 (Tex. App.—Austin 2009, no pet.) (appellant’s convictions for criminal mischief,
marijuana possession, and burglary of a vehicle were relevant to his child’s best interest). Here,
the trial court could reasonably conclude that Father’s conviction for murdering M.M.’s mother
was relevant to M.M.’s best interest.
Additionally, even assuming admitting the conviction was error, the record doesn’t support
a conclusion that it probably caused an improper judgment or probably prevented Father from
properly presenting his appeal. See TEX. R. APP. P. 44.1(a). Before the Department offered
Father’s conviction into evidence, Father testified without objection that he was currently
incarcerated, he had been tried for and convicted of murder, and his sentence was life without
parole. In light of this evidence, we cannot conclude that the judgment probably turned on the
admission of the conviction itself. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54
(Tex. 1995) (“A successful challenge to evidentiary rulings usually requires the complaining party
to show that the judgment turns on the particular evidence excluded or admitted.”); see also Nissan
Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (erroneously admitted evidence is
harmless if it is “merely cumulative”).
We overrule issue four.
E. Issue Five: Was the evidence legally or factually insufficient to support the jury’s
finding that terminating Father’s parental rights was in M.M.’s best interest?
We overrule this issue because Father didn’t preserve error because he didn’t file a new
trial motion or use any procedure recognized as preserving legal sufficiency points.
Factual sufficiency issues must be preserved by new trial motion. See TEX. R. CIV. P.
324(b)(2); In re A.R.M., No. 05-17-00539-CV, 2018 WL 1559820, at *1 & n.1 (Tex. App.—Dallas
Mar. 30, 2018, pet. denied) (mem. op.) (applying Rule 324 in a parental termination case). The
clerk’s record does not contain a new trial motion, nor does the computer generated docket sheet
indicate that any such motion was filed. So Father did not preserve a factual sufficiency argument.
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A legal sufficiency argument can be preserved by: (i) a motion for instructed verdict, (ii) a
motion for judgment notwithstanding the verdict, (iii) an objection to a jury question’s submission,
(iv) a motion to disregard a jury’s answer to a vital fact issue, or (v) a new trial motion. In re
A.H.J., No. 05-15-00501-CV, 2015 WL 5866256, at *10 (Tex. App.—Dallas Oct. 8, 2015, pet.
denied) (mem. op.). We have reviewed the record, and we find no indication that Father made any
of these motions or objections. Accordingly, Father did not preserve a legal sufficiency argument.
See id. (applying ordinary preservation rules to legal sufficiency challenge in a parental
termination case).
F. Issue Six: Was the evidence legally or factually insufficient to support the
Department’s appointment as managing conservator?
We overrule this issue because Father didn’t preserve error.
The jury was asked to select M.M.’s managing conservator from a list of three options: the
Department, the Graces, or Grandmother. It found that the Department should be appointed
M.M.’s managing conservator. The trial court rendered judgment on the verdict and appointed the
Department as M.M.’s managing conservator. Father didn’t make any of the motions or objections
necessary to preserve legal or factual sufficiency of the evidence points. See Part III.E supra.
Thus, we reject his arguments for lack of preservation. See In re A.B., 548 S.W.3d 81 (Tex. App.—
Beaumont 2018, no pet.) (holding that a party failed to preserve sufficiency issues on similar facts).
IV. CONCLUSION
We affirm the trial court’s judgment.
/Bill Whitehill/
BILL WHITEHILL
190329F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.M., A CHILD On Appeal from the 304th Judicial District
Court, Dallas County, Texas
No. 05-19-00329-CV Trial Court Cause No. JC-17-01300-W.
Opinion delivered by Justice Whitehill.
Justices Molberg and Reichek participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered September 11, 2019.
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