Dominic Tomlinson v. State ( 2011 )

NO. 07-10-00292-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JULY 7, 2011

DOMINIC TOMLINSON, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY;

NO. 1169831D; HONORABLE ELIZABETH BERRY, JUDGE

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

MEMORANDUM OPINION

            Appellant, Dominic Tomlinson, entered a plea of guilty to the offense of aggravated robbery.[1]  After entry of appellant’s plea of guilty, the trial court ordered the preparation of a pre-sentence investigation report.  Subsequently, the trial court conducted a hearing on punishment. Following the receipt of evidence on punishment, appellant was sentenced to confinement for a period of 20 years in the Institutional Division of the Texas Department of Criminal Justice. Appellant appeals the judgment of the trial court.  We will affirm the judgment of the trial court.

Appellant=s attorney has filed an Anders brief and a motion to withdraw.  Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 498 (1967).  In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated.  Id. at 744-45.  In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court=s judgment. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter.  Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991).  The court has also advised appellant of his right to file a pro se response. Appellant has not filed a response. By his Anders brief, counsel reviewed all grounds that could possibly support an appeal, but concludes the appeal is frivolous.  We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).  We have found no such arguable grounds and agree with counsel that the appeal is frivolous.

Accordingly, counsel=s motion to withdraw is hereby granted, and the trial court=s judgment is affirmed.[2]

                                                                                                Mackey K. Hancock

Justice

Do not publish.

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[1] See Tex. Penal Code Ann. § 29.03(a) (West 2011).

[2] Counsel shall, within five days after this opinion is handed down, send his client a copy of the opinion and judgment, along with notification of appellant=s right to file a pro se petition for discretionary review.  See Tex. R. App. P. 48.4.

nt-size:12.0pt;line-height:200%'>See § 677(a)(2).  To support this proposition, Hart cites the Court to Adcock v. Sherling, 923 S.W.2d 74, 77 (Tex.App.—San Antonio 1996, no writ).  In Adcock, the ward’s son, Adcock, and the son’s niece were seeking to be appointed permanent guardian of the person and estate of Adcock’s mother.  Id. at 75.  The trial court appointed the niece guardian finding that Adcock was ineligible to serve because he was asserting a claim against the proposed ward’s estate.  Id. at 76-77.  The San Antonio Court of Appeals determined that, as a matter of law there was no evidence that Adcock was asserting a claim against the ward’s estate and, as the nearest kin of the proposed ward, Adcock was entitled to appointment.  Id. at 79. Therefore, the court in Adcock found that the nearest kin was not ineligible and was entitled to serve as guardian.  See § 677(a)(2).  The record in the case before us demonstrates the requirement that the nearest kin must be eligible to serve before we reach the question of the propriety of the nearest kin being appointed.

            From the record before the trial court, we learn that: 1) prior to Michael being taken from the home his weight had fallen under 95 pounds; 2) prior to his weight loss, Michael had weighed over 150 pounds; 3) Michael was suffering from severe mental retardation and autism and was totally dependent on Hart for all life choices; 4) APS had begun an investigation of Hart, but that investigation was closed when Hart signed an agreement to cooperate; 5) APS reopened the investigation and ultimately referred the matter to DADS when Hart failed to cooperate per the agreement; 6) at the time of the initial hospitalization at John Peter Smith Hospital, Michael’s medical conditions were gastritis, malnutrition, and possible anorexia with significant bouts of vomiting and rumination; 7) prior to the last EPO, Michael was fixated on food; 8) since the placement of Michael at Skyview Living Center, Michael’s weight has increased to approximately 150 pounds; 9) while Michael has been at Skyview Living Center, Hart has demonstrated a pattern of disregarding the facility’s rules and regulations regarding giving food to Michael; and 10) for the months of April, May, and June 2009, while Michael was in the care of the temporary guardian, Hart received Michael’s Social Security payments and failed to furnish those to the temporary guardian for Michael’s care. 

Based upon this evidence, the trial court found that DADS should be appointed permanent guardian “and that no other eligible, qualified person is available.” Implicit in this language from the court’s order and, supported by the record, is the finding that Hart was disqualified from serving as guardian of Michael.[4]  The State cites the Court to two separate subsections under which Hart is disqualified. Section 681 provides, in these two subsections, that:

A person may not be appointed guardian if the person is:

. . .

(5) a person indebted to the proposed ward unless the

person pays the debt before appointment;

. . .

(8) a person, institution, or corporation found unsuitable by the court.

See § 681(5), (8).

            Initially, we note the evidence was presented that Hart retained the Social Security checks issued in Michael’s name.  At trial, Hart testified that these were in the bank, implying that they were in Michael’s account.  However, there was nothing more than the testimony of Hart, no bank records or other receipts were offered.  Representatives of Skyview Living Center testified that Hart was aware of the outstanding sums due and made no effort to forward the Social Security checks as payment.  In Trimble, cited by DADS, the husband had withheld payment of the wife’s nursing home bills after having been appointed temporary guardian. Trimble, 981 S.W.2d at 214.  The reviewing court upheld the trial court’s determination that the husband was not qualified to serve as guardian under section 681 and upheld the trial court’s consideration of the husband’s failure to pay the wife’s nursing home bills in determining whether the husband was disqualified from serving as guardian.  Id. at 215–16. We find the trial court did not abuse its discretion by considering the failure of Hart to forward the Social Security checks for Michael’s treatment at Skyview Living Center. 

            Additionally, DADS cites the Court to subsection (8) of section 681 for the proposition that Hart is “unsuitable” to serve as guardian. In its order, the trial court impliedly found that Hart was unsuitable when it found that there was “no other eligible, qualified person is available.”  By this choice of language and in light of Hart’s failure to pay Michael’s medical care and Michael’s physical deterioration under Hart’s care, the court did not abuse its discretion by appointing DADS to the exclusion of Hart.  See In re Parker, 2007 Tex. App. LEXIS 9428, *9–10.

            From all of the evidence before the trial court, it is apparent that the trial court had more than sufficient evidence to refuse to appoint Hart, the nearest kin, because she was not eligible for appointment. See § 677(a)(2).  Accordingly, the trial court did not abuse its discretion.  See In re Parker, 2007 Tex. App. LEXIS 9428, *9–10. We therefore, overrule Hart’s single issue.

Conclusion

            Having overruled Hart’s single issue, we affirm the judgment of the trial court.

                                                                                                Mackey K. Hancock

                                                                                                            Justice

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[1] Skyview is described in the record as an intermediate care facility which cares for the mentally disabled.

[2] Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to this Court from the Fort Worth Court of Appeals.  See Tex. Gov’t Code Ann. § 73.001 (West 2005).  That being so, we must decide this case “in accordance with the precedent of the transferor court under the principles of stare decisis” if our decision otherwise would have been inconsistent with the precedent of the transferor court.  Tex. R. App. P. 41.3; Phillips v. Phillips, 296 S.W.3d 656, 672  (Tex.App.—El Paso 2009, pet. denied).

[3] Further reference to the Texas Probate Code will be by reference to “section ___” or “§ ___.”

[4] Where, as here, the record contains no findings of fact and conclusions of law, we must imply all findings of fact necessary to support the trial court’s judgment that are supported by the evidence.  BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).