in the Interest of S.N.G. and D.D.S., Children ( 2006 )

NO. 07-06-0037-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 1, 2006 ______________________________

In re S.N.G. AND D.D.S. _________________________________

FROM THE 99^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-524,599; HON. KEVIN HART, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

Maria E. Vargas appeals from an order terminating the parental relationship between herself and her children S.N.G. and D.D.S. The trial court appointed Vargas counsel to represent her on appeal. Thereafter, her appointed counsel filed an Anders ⁽¹⁾ brief and motion to withdraw. ⁽²⁾ In the brief, appellate counsel certified that she 1) diligently reviewed the appellate record and 2) concluded the appeal was meritless. So too did counsel state that she informed her client, Vargas, of her conclusion and of Vargas' right to review the record and file a pro se response to the brief and motion. This court also contacted Vargas, in writing, to inform her of counsel's motion and brief and of Vargas' right to respond thereto after reviewing the record. Vargas failed to file a response. For the reasons which follow, we affirm the judgment.

Application of Anders

As previously mentioned, counsel was appointed to represent Vargas on appeal and ultimately filed an Anders brief and motion to withdraw. In doing so, she advised the court and her client not only that she diligently reviewed the record and applicable authorities but also concluded that there existed no reversible error. So too did she explain why the issues her research disclosed as potentially viable were not. Moreover, Vargas was afforded opportunity to respond to the brief and motion but failed to do so.

Next, as we are obligated to do when the proceeding is criminal, we conducted our own independent review of the record to discover arguable grounds of appeal. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Upon conducting that review, we determined that Vargas 1) had notice of the grounds proffered for terminating her parental rights except for one which included her failure to comply with a court order, 2) failed to appear at the hearing and 3) had opportunity to defend against those grounds through the use of counsel, the presentation of evidence, and the cross-examination of adverse witnesses. Furthermore, the evidence presented at the trial legally and factually supported the court's findings that Vargas 1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children and 2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. However, we do not find in the record a petition alleging the failure to comply with a court order as a ground for termination. Because Vargas did not receive notice of the latter allegation, the trial court cannot rely on it as a basis for termination. See In the Interest of S.R.M., 601 S.W.2d 766, 769 (Tex. Civ. App.-Amarillo 1980, no writ) (stating that the statutory grounds for termination must be stated in the petition). Therefore, we will reform the judgment accordingly.

The record also contains evidence upon which the court could clearly and convincingly find that termination of Vargas' parental rights was in the best interest of the children. Finally, with regard to the arguable grounds raised and then negated by appellate counsel, we agree that they were meritless.

Having found no arguable merit to the appeal, we reform the judgment by removing paragraph 6.2.3 (involving appellant's alleged failure to comply with a court order) as a ground warranting termination and affirm the order as modified. So too do we grant counsel's motion to withdraw.

Brian Quinn

Chief Justice

1. Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L. Ed. 2d 493 (1967).

2. The trial court appointed appellate counsel to represent Vargas via the directives contained in the Texas Family Code. Tex. Fam. Code Ann. §107.013 (Vernon Supp. 2005) (stating that an indigent parent is entitled to appointed counsel in proceedings to terminate the parental relationship).

y: 'Arial', sans-serif">          Appellant, Robert V. Woodard, was convicted by a jury of five counts of sexual assault of a child under seventeen years of age, enhanced by a prior felony conviction. Punishment was assessed by the jury. Ordering certain sentences to run consecutively and certain sentences to run concurrently, the trial court sentenced Appellant to 130 years confinement. By two issues, Appellant contends that: (1) stacking of his sentences caused his punishment to be excessive and disproportionate; and (2) the indictment improperly contained separate counts when the State Constitution requires an indictment for each count. Originally appealed to the 2^nd Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the 2^nd Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3. We affirm.

Background

          In March 2007, a Tarrant County Grand Jury charged Appellant by a single indictment of seven counts of sexual assault of a child under seventeen years of age with a repeat offender notice for a prior robbery conviction.   

          Following a four day jury trial, the trial court charged the jury to determine guilt or innocence on five of the seven counts. The jury returned a verdict of guilty on all five counts. Prior to the commencement of the punishment trial, Appellant pled true to the offense described in the indictment’s repeat offender notice.

          Following the punishment trial, the jury issued its verdict requiring that Appellant be confined fifty years for Count One, fifty years for Count Two, fifty years for Count Three, thirty years for Count Four, and thirty years for Count Five. Thereafter, the trial court ordered the fifty year sentence in Count Two be served consecutively to the fifty years sentence in Count One; the fifty year sentence in Count Three to run concurrently with the sentence in Count One; the thirty year sentence in Count Four be served consecutively to the sentences in Counts One and Two; and the thirty year sentence in Count Five to run concurrent to the thirty year sentence in Count Four. This appeal followed.

Discussion

          Appellant first asserts that his sentence is excessive and disproportionate to his crimes because the trial court failed to give appropriate weight to his mitigation evidence offered during the punishment trial. Appellant next asserts the indictment was improper because it contained seven separate counts charging him with sexual assault of a child under seventeen years of age.

          Disproportionality

          To preserve an issue for appellate review, the record must show that the complaint was made by a timely objection “with sufficient specificity to make the trial court aware of the complaint” and that the defendant obtained a ruling from the trial court on that objection. Tex. R. App. P. 33.1(a). An appellant may not assert error pertaining to his sentence or punishment when he or she failed to object or otherwise raise the error in the trial court. Thompson v. State, 243 S.W.3d 774, 775 (Tex.App.–Fort Worth 2007, pet. ref’d) (citing Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh’g)). Further, the error preservation requirement extends to complaints of cruel and unusual punishment. See Jacoby v. State, 227 S.W.3d 128, 130 (Tex.App.–Houston [1^st Dist.] 2006, pet. ref’d); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.–Houston [14^th Dist.] 2001, pet. ref’d).

          Appellant asserts that he preserved this issue for appeal by making a general objection to “stacking.” His objection lacked the specificity sufficient to put the trial court on notice of any constitutional or statutory grounds for an objection. As such, any error in this regard has been forfeited. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Stevens v. State, 667 S.W.2d 534, 538 (Tex.Crim.App. 1984).

          However, even absent waiver, after comparing the temporal numerosity and seriousness of the felony offenses for which he was convicted in light of his prior conviction with the sentences assessed thereon, we conclude that Appellant’s sentences were not unconstitutionally disproportionate and, thus, did not constitute cruel and unusual punishment. See, e.g., Winchester v. State, 246 S.W.3d 386, 390-91 (Tex.App.–Amarillo 2008, no pet.). Appellant’s first issue is overruled.

          Indictment

          Appellant next contends that article 21.24 of the Texas Code of Criminal Procedure and section 3.03(b)(2) of the Texas Penal Code are unconstitutional as applied to him. We disagree.

          When an attack is made on the constitutionality of a statute, we start with the presumption that the statute is valid; Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978); Shannon v. State, 800 S.W.2d 896, 899 (Tex.App.–San Antonio 1990, pet. ref’d), and Appellant bears the burden of establishing the statute is unconstitutional as applied to him. Luquis v. State, 72 S.W.3d 355, 365 (Tex.Crim.App. 2002).

          Appellant does not cite any case law, other authority, or record evidence in support of his contention that the indictment underlying this action is unconstitutional. Thus, this contention was insufficiently briefed and, therefore, waived. Tex. R. App. P. 38.1(h). See Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000). Further, indictments containing more than one count do not offend fundamental constitutional protections but, instead, are constitutional. Thomas v. State, 621 S.W.2d 158, 162 (Tex.Crim.App. 1980) (citing Ingraham v. United States, 155 U.S. 434, 15 S. Ct. 148, 39 L. Ed. 263 (1884).

          Appellant also asserts that the alleged unconstitutionality of article 21.24 is compounded by the trial court’s decision to stack his sentences under section 3.03 of the Penal Code. Appellant again fails to provide us with any case law, other authority, or record evidence on which to base a decision to invalidate section 3.03(b)(2) as applied. This contention was also waived. See Cardenas, 30 S.W.3d at 393.

          Appellant’s second issue is overruled.

Conclusion  

          The trial court’s judgment is affirmed.

                                                                           Patrick A. Pirtle

                                                                                  Justice

Do not publish.