Jerry Dale Morgan v. Texas Department of Public Safety

NO. 07-05-0433-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JULY 3, 2007 ______________________________

JERRY DALE MORGAN, APPELLANT

V.

TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLEE _________________________________

FROM THE 286^TH DISTRICT COURT OF HOCKLEY COUNTY;

NO. 05-07-20083; HONORABLE HAROLD PHELAN, JUDGE _______________________________

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

MEMORANDUM OPINION

Appellant Jerry Dale Morgan appeals the district court's judgment affirming the suspension of his driver's license by the Texas Department of Public Safety. We will affirm the district court.

The events leading to the suspension were largely undisputed. Trooper Jose Barrientes was notified of a one-vehicle accident in the parking lot of a liquor store in Hockley County, Texas. The manager of the liquor store reported that a white Dodge pickup struck a pole in the parking lot. The manager indicated he spoke to the driver, the driver appeared to be intoxicated, and the driver left the scene. Approximately twenty minutes later, a vehicle matching the description provided by the manager ⁽¹⁾ was located at a residence in Levelland, Texas.

The truck was parked, unoccupied, and Trooper Barrientes saw damage to its front that was consistent with striking a fixed object. Barrientes noted that the engine compartment was warm. Morgan, who was inside the residence, affirmed the vehicle was his.

While speaking with Morgan, Barrientes detected the odor of alcohol. Morgan's eyes were red and glassy and his speech was slurred. The trooper noted Morgan was unsteady on his feet. Morgan said he had been home for about an hour, and denied knowledge of any damage to the vehicle. He consented to inspecting the truck with the trooper and staggered as he walked. Trooper Barrientes reported he then read Morgan the Miranda warnings and asked him when he last drove the truck. Morgan responded he had not driven the truck in a week. When asked when he last consumed alcohol, Morgan stated that he was drinking in the house. When asked whether he had been to the liquor store, he responded "not today."

Morgan refused the trooper's request that he submit to sobriety tests. After the manager of the liquor store came to the residence and identified the truck as the vehicle that struck the pole, and identified Morgan as its driver, Morgan was arrested. At the jail, Morgan refused to provide a breath sample. ⁽²⁾ Because of his refusal, the Department suspended his driver's license. See Tex. Transp. Code Ann. § 724.035 (Vernon Supp. 2006) (permitting the suspension or denial of a person's driver's license if he refuses the request of a peace officer to submit to the taking of a specimen).

Morgan requested a hearing pursuant to Transportation Code section 724.041. Tex. Transp. Code Ann. §724.041(a), (d) (Vernon Supp. 2006). At the hearing, the Department offered four exhibits, including a supplemental form DIC-23 that contained the trooper's offense report. ⁽³⁾ The exhibits were admitted without objection. ⁽⁴⁾ After the hearing, the State Office of Administrative Hearings administrative law judge (ALJ) found in the Department's favor on the pertinent issues listed in section 724.042, and entered an order authorizing the license suspension. ⁽⁵⁾

Tex. Transp. Code Ann. §§ 724.042, 724.043 (Vernon Supp. 2006). Morgan's appeal of the ALJ's decision was heard in the district court. He now appeals the district court's judgment approving the suspension of his license.

Review of the ALJ's decision by the trial court is based on the substantial evidence rule. Tex. Transp. Code Ann. §§ 724.047, 524.041; Mireles v. Texas Dep't of Public Safety, 9 S.W.3d 128, 131 (Tex. 1999).

Morgan raises two issues in his brief on appeal. By his first issue, he contends his arrest was unlawful because Trooper Barrientes' testimony at the license suspension hearing demonstrates he arrested Morgan without a warrant and that none of the circumstances authorizing a warrantless arrest under Chapter 14 of the Code of Criminal Procedure were present. Through his second issue Morgan posits that evidence of the unlawful arrest and his subsequent refusal to provide a breath specimen was inadmissible in the license suspension hearing, preventing the Department from meeting its burden under section 724.042.

The Department responds initially that Morgan's appellate contentions were not preserved for review, and we agree. Via his second issue, Morgan urges the applicability of the exclusionary rule incorporated in article 38.23 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.23. Citing that statutory provision and Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684 (1961), he contends evidence of his refusal to provide the breath specimen is inadmissible and cannot be used against him to support the findings required under section 724.042. Morgan acknowledges that the license suspension hearing is a civil matter. See Tex. Transp. Code Ann. § 724.048(a)(1) (Vernon 1999) (so stating). Nevertheless, he argues the hearing is "quasi-criminal" in nature, and subject to the Code of Criminal Procedure. He cites no authority for this proposition, and we need not address it in this case. Assuming, arguendo, that Morgan's warrantless arrest contravened the requirements of Chapter 14 of the Code of Criminal Procedure, ⁽⁶⁾ and assuming further that fact would have precluded admission at the license suspension hearing of evidence of his arrest and subsequent refusal to provide the specimen, the record of the hearing reflects no objection to admission of such evidence. As noted, Morgan's counsel affirmatively stated he had no objection to the Department's exhibits. Under our state's criminal jurisprudence, Morgan therefore may not complain on appeal about admission of the evidence. Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992); Reed v. State, 487 S.W.2d 78, 80 (Tex.Crim.App. 1972) (complaint of admission of fruit of warrantless search not preserved). See also Texas Dep't of Public Safety v. Pruitt, 75 S.W.3d 634, 639 (Tex.App.-San Antonio 2002, no pet.) (addressing objection to admission of similar DPS report); Tex. R. App. P. 33.1 (error preservation generally requires timely request, objection or motion in trial court); Tex. R. Evid. 103(a)(1) (timely objection to admission of evidence, or motion to strike, required).

Accordingly, we overrule Morgan's second issue, and find it unnecessary to address his first. The district court's judgment is affirmed.

James T. Campbell

Justice

1. The vehicle that was located matched the description with the exception that its Texas license plate bore the number 78M-XH1 rather than the number 78M-HX1 reported by the liquor store manager.

2. The record includes the Department's form DIC-24, signed by Morgan, documenting his refusal to give the breath specimen. See Tex. Transp. Code Ann. § 724.032 (Vernon Supp. 2006) (providing for a written "refusal report").

3. The offense report contains the facts surrounding Morgan's arrest that we have recited, detailing the trooper's actions and the events that led to his arrest of Morgan. Morgan does not deny on appeal that the facts recited in the report gave the trooper probable cause to believe Morgan was operating a motor vehicle in a public place while intoxicated.

4. The hearing record reflects Morgan's counsel's statement of "no objection" when the Department offered its exhibits.

5. The issues at the administrative hearing included whether: (1) reasonable suspicion or probable cause existed to stop or arrest Morgan; (2) probable cause existed to believe that he was operating a motor vehicle in a public place while intoxicated; (3) he was placed under arrest by the officer and was requested to submit to the taking of a specimen; and (4) he refused to submit to the taking of a specimen on request of the officer. Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2006).

6. Neither the administrative law judge nor the district court expressly decided this issue.

t out of jail, "get clean," and get her children back. Ms. Pollard averred that she asked appellant to contact her when she got out of jail but appellant had not done so. Ms. Pollard said she did not get an address from appellant because appellant was in jail and she did not know how long appellant would be there. Since the jail visit, Ms. Pollard had never heard from appellant and she stated the police were looking for appellant.

Ms. Pollard also testified that the children were "very bonded" with the Haynes and were "doing well." Their behavior had improved, their grades were good, and they wanted to be adopted by the Haynes. She averred they were happy and stable in their placement, were participating in school activities, and she believed it would be in their best interest to remain with the Haynes.

Kristie Lynn Haynes was also presented by the Department. She said that she and her husband have two children, an eight-year-old and a 21-month-old baby. She said the Passmore-Newell children had been living in her household since April 9, 2004 (the bench hearing leading to the termination was held on September 20, 2004). She testified about the fairly drastic changes in behavior in the children since they came to be with the Haynes. She said that she and her husband wanted to adopt the children because "I love them, because I feel like they need permanency" and "[t]hey need to know where they're going to be the rest of their life." She also stated that the children need a home environment in which "they know that they're going to get all the love and affection that they could ever want."

Discussion

The natural right existing between a parent and a child is of such a degree as to be of constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 758-759, 102 S. Ct. 1388, 1397-98, 71 L. Ed. 2d 599 (1982); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). Because of this, reviewing courts strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846 (Tex. 1980). Indeed, a strong presumption exists that the best interest of the child is usually served by maintaining a parent-child relationship. Id. at 847. Due process requires that a necessity for termination of parental rights be shown by clear and convincing evidence. Id. The clear and convincing standard requires "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. §101.007 (Vernon 2002) (the Code).

In a case that involves parental rights termination such as this one, the reviewing court, considering a legal sufficiency challenge, must look at all the evidence in a light most favorable to the judgment and must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). However, that does not mean that the reviewing court must disregard all evidence that does not support the finding because to do so could skew the analysis of whether there is clear and convincing evidence. Id. The reviewing court should only sustain a challenge to the legal sufficiency of the evidence when the court determines that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true. Id.

In reviewing a factual sufficiency challenge, the reviewing court must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing. Id. The question, then, is whether the evidence produced is such that a fact finder could reasonably form a firm belief or conviction about the truth of the movant's allegations. Id. Therefore, the reviewing court should consider whether disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. Id. Thus, if in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not have reasonably formed a firm belief or conviction, then the evidence is factually insufficient. Id. If the reviewing court concludes the evidence is factually insufficient, it must detail in its opinion why it concluded that a reasonable fact finder could not have credited the disputed evidence in favor of the finding. Id. at 266-67.

To terminate parental rights, the Department must prove by clear and convincing evidence that 1) a parent committed at least one predicate act or omission harmful to the child, and 2) the termination of parental rights is in the child's best interest. Tex. Fam. Code Ann. §161.001 (Vernon Supp. 2005). The clear and convincing standard does not mean that the evidence must negate all reasonable doubt or that the evidence must be uncontroverted. The reviewing court must recall that the trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences. Also, the factfinder, as opposed to the reviewing body, enjoys the right to resolve credibility issues and conflicts within the evidence. It may freely choose to believe all, part, or none of the testimony espoused by any particular witness. In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.-Amarillo 1995, no writ).

In this case, the trial court found that appellant had committed four predicate acts harmful to the children, including a finding that she had engaged in conduct that endangered the physical or emotional well being of the children. In addressing the trial court finding of endangering conduct, appellant argues that although it is not specifically noted, "at some point in the children's lives, . . . the children were exposed to a person who supplied [her]" with drugs. She argues that there are "no references in the record to tie any type of lingering negative behaviors or ill effects to the children caused by" her conduct.

Texas courts have noted that "endanger" means "to expose to loss or injury; to jeopardize." In re M.C., 917 S.W.2d 268, 269 (Tex. 1996), quoting Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although "endanger" means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Id. Endangerment of a child does not have to be established as an independent proposition but can be inferred from parental misconduct alone. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d at 533. Indeed, Texas courts look to what the parents did both before and after the child's birth to determine whether termination is necessary. In re D.M., 58 S.W.3d 801, 812 (Tex. App.-Fort Worth 2001, no pet.). Endangerment may include evidence of drug addiction and its effect on a parent's life and his ability to parent. In re U.P., 105 S.W.3d 222, 234 (Tex. App.-Houston [14^th Dist.] 2003, pet. denied).

A parent's engaging in illegal drug activity after agreeing not to do so in a service plan for reunification with her children is sufficient to establish clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered the well-being of her children. See Robinson v. Texas Dep't of Protective & Regulatory Servs., 89 S.W.3d 679, 686-87 (Tex. App.-Houston [1^st Dist] 2002, no pet.). Conduct that subjects a child to a life of uncertainty and instability because of the probability that its parent or parents will be jailed because of illegal conduct thereby leaving the child alone, endangers the child's physical or emotional well-being. See In re C.L.C., 119 S.W.3d 382, 393 (Tex. App.-Tyler 2003, no pet.).

The evidence in this case, which we have enumerated above in considerable detail, shows that at the time of the initial intake, appellant was living in a car, was not caring properly for her children, and was using illegal drugs. She allowed her children to be around her drug supplier whom she knew was dealing drugs. There was evidence that she and her drug dealer used drugs together around the children and that she supervised the children while under the influence of drugs. Appellant also failed to complete drug rehabilitation programs she had begun, and she continued to engage in illegal drug activity after the Department had become involved and she had agreed she would not do so.

The clear and convincing evidence was amply sufficient to justify the trial court's evident conclusion that appellant's drug addiction and lifestyle had created an aura of uncertainty and instability for her children. In that connection, we note appellant's argument that there are no references to the record to tie any type of lingering negative behavior or ill effects to the children caused by her conduct. However, our supreme court has explicated that the requisite endangerment to a child may be inferred from parental misconduct and it is not necessary that such misconduct be directed at the child or that the child actually suffers injury. Texas Dep't of Human Servs v. Boyd, 727 S.W.2d at 533; see also In re M.J.M.L., 31 S.W.3d 347, 353 (Tex. App.-San Antonio 2000, pet. denied).

Even if multiple grounds for termination are alleged, only one predicate finding under section 161.001(1) of the Code is required to terminate parental rights. In re N.H., 122 S.W.3d 391, 401 (Tex. App.-Texarkana 2003, pet. denied). That being so, our finding that sufficient clear and convincing evidence existed to support that finding pretermits the necessity for addressing the remaining statutory grounds for termination found by the trial court.

Even so, in addition to establishing that appellant engaged in endangering conduct, section 161.001 of the Code states that it is also the Department's burden to prove by clear and convincing evidence that the termination of appellant's parental rights was in the children's best interest. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2005). In seeking reversal, appellant argues that the evidence is insufficient to sustain the trial court finding that termination of the parent-child relationship between appellant and the children was in the best interest of the children.

In the seminal case of Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), the court listed nine identifiable factors among those to be considered in determining the best interest of children in termination cases such as this one. Those factors are the desires of the children, the emotional and physical needs of the children now and in the future, the emotional and physical danger to the children now and in the future, the parental abilities of the individuals seeking custody, the programs available to assist those individuals to promote the best interests of the children, the plans for the children by the parties seeking custody, the stability of the home or proposed placement, the acts or omissions committed by the parent that might indicate that the existing parent-child relationship is not a proper one, and any excuses for the acts or omissions committed by the parent. Id. at 372.

As the court indicated in its opinion, that list is by no means exhaustive but is a very good point of reference to aid in assessing the trial courts' rulings. Evidence proving one or more statutory ground for termination may be considered in assessing the probative evidence that termination is in the best interest of the children. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Additionally, a best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence. In re S.H.A., 728 S.W.2d 73, 86-87 (Tex. App.-Dallas 1987, writ ref'd n.r.e.). A parent's unstable lifestyle, lack of income, and lack of a home may also be considered in a determination of a parent's ability to provide for a child's emotional and physical needs and may also threaten the physical well being of the child. In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.-Fort Worth 2003, no pet.).

In regard to the desires of the children, Ms. Gregg testified that the children were happy about being placed with Mr. and Mrs. Haynes and that the children appeared to bond with the couple. Indeed, Ms. Pollard averred that from her observations of the children in the Haynes' home, the children were very bonded, were happy, and were doing well.

With regard to the emotional and physical needs of the children now and in the future and the emotional and physical danger to them now and in the future, the evidence is sufficient to sustain a trial court belief that appellant's drug history clearly posed an emotional and physical danger to the children. The evidence supports a conclusion that appellant's relapse after repeated drug treatment programs is also something to be validly considered as bearing upon the question of potential emotional and physical danger to the children. In that connection, Ms. Pollard testified that in July of 2004, when she found appellant in the Randall County jail, almost two full years after the Department first investigated her because of her drug use, she still was not free from her drug addiction and still admitting her desire to "get clean" from her drug addiction. As a fact finder, the trial judge could have reasonably concluded that the likelihood of appellant continuing drug use was very strong.

Suffice it to say, under the clear and convincing evidence in this case, the trial judge could reasonably conclude that appellant was not stable emotionally and could not meet the emotional and physical needs of the children either in the present or in the future. Additionally, the evidence would support a conclusion that appellant's drug use and demonstrated association with other drug users would constitute a danger emotionally and physically both in the present and in the future. A trier of fact may measure a parent's future conduct by her past conduct and determine that it is in the child's best interest to terminate parental rights. In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.-Waco 1997, pet. denied), overruled on other grounds by In re C.H., 89 S.W.3d 17 (Tex. 2002).

In considering whether the evidence is sufficient to sustain the termination of her parental rights, appellant suggests that Horvatich v. Texas Dep't of Protective & Regulatory Servs, 78 S.W.3d 594 (Tex. App.-Austin 2002, no pet.) is a "very good case to guide this Court in reviewing the record," and in determining whether the evidence in this case is sufficient to justify the termination of her parental rights. In Horvatich, the court found the evidence was not sufficient to sustain the termination of a mother's parental rights. However, in doing so, the appellate court noted there was no testimony from anyone who had personal knowledge of the children at the time of trial and that there was no testimony concerning how the children were doing in foster care, whether they were being considered for adoption, the likelihood of their adoption, the Department's plan for placement of the children, whether the children were currently together in their foster care, and whether the Department would attempt to place all three children together. Id. at 601-02.

The evidence in the Horvatich case is different from that in this record. Here, Ms. Pollard, the caseworker at the time of trial, and Mrs. Haynes, the children's current foster placement person, had personal knowledge of the children at the time of trial. Both of them testified that the children were happy in their placement, that they had bonded with the foster parents, they were stable in their placement, and that they wanted to be adopted by the Haynes. Mrs Haynes testified about the children's activities and the improvement in their attitude since they came to the Haynes. The children were together with the Haynes, the Haynes wanted to adopt the children and the Department's plan was to facilitate that adoption.

Suffice it to say, the evidence before the trial court was sufficiently clear and convincing to justify its decision. Accordingly, appellant's point is overruled and the judgment of the trial court is affirmed.

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. 2005).