in the Interest of M.D., a Child

NO. 07-07-0126-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 28, 2008

______________________________



IN THE INTEREST OF M.D., A CHILD

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 71,326-D; HONORABLE DAVID L. GLEASON, JUDGE ⁽¹⁾

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellants, Natasha and Timothy, ⁽²⁾ appeal the trial court's order terminating their parental rights to their son, M.D. By her brief, Natasha presents four issues challenging the termination. By issues one and two, she maintains the evidence is insufficient to support the trial court's findings that she knowingly placed or knowingly allowed her child to remain in conditions which endangered his physical or emotional well being and that she engaged in conduct that endangered her child or placed her child with persons whom she knew endangered her child. By her third issue, she contends that termination was not in the best interest of her child, and by her final issue presents a public policy argument that termination is improper when a parent contacts the Texas Department of Family and Protective Services for help.

By separate brief, Timothy raises four issues to contest the termination. By issues one and two, he challenges § 263.405(b) and (i) of the Texas Family Code as being violative of his federal and state due process rights by requiring a statement of points to be filed within fifteen days after the trial court signs the termination order. ⁽³⁾ By issues three and four, Timothy challenges the sufficiency of the evidence to support the trial court's findings that he knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered his physical or emotional well being and that he engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered his physical and emotional well being. We affirm.

Relying on In re T.C., 200 S.W.3d 788 (Tex.App.-Fort Worth ), and In re R.J.S., 219 S.W.3d 623 (Tex.App.-Dallas 2007, pet. denied), the Department contends that § 263.405(b) and (i) of the Texas Family Code precludes review of Natasha and Timothy's issues for failing to timely file a statement of points. We agree.

A party intending to appeal a final order rendered under subchapter E of chapter 263 of the Texas Family Code must file with the trial court, no later than fifteen days after the final order is signed, a statement of points on which the party intends to appeal. § 263.405(b). The statement of points may be filed separately or it may be combined with a motion for new trial. Id. An appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of points. § 236.405(i).

The order being appealed in this case is a final order rendered under subchapter E of chapter 263 of the Texas Family Code; therefore, Natasha and Timothy were required to file a statement of points. The failure to timely file a statement of points does not deprive this Court of jurisdiction over the appeal; however, it is a procedural prerequisite to the appellate court's authority to consider any issue presented. See § 263.405(i). See also In re R.C., 243 S.W.3d 674, 675-76 (Tex.App.-Amarillo April 25, 2007, no pet.).

Procedural Background

The Department filed its First Amended Petition seeking, among other relief, termination of Natasha and Timothy's parental rights to their child. Following a hearing on March 19, 2007, the trial court advised the parents of its intention to terminate their parental rights. On March 23, 2007, and March 26, 2007, the trial court appointed counsel on appeal for Natasha and Timothy, respectively. The trial court signed the termination order on April 4, 2007, making the statement of points due no later than April 19, 2007. No motion for new trial was filed by either parent. Natasha did file a statement of points on June 28, 2007, well after the fifteen day deadline.

§ 263.405(b) and (i)

While several of our sister courts have questioned the practical application and constitutional validity of this statute and have recommended that the Legislature reconsider the statute in light of the potentially harsh effect of its application, ⁽⁴⁾ every intermediate appellate court in this State has agreed that the statute, as written, prohibits appellate courts from considering points not properly preserved by the timely filing of a statement of points. See In re J.O.A., ___S.W.3d___, No. 07-07-0042-CV, 2008 WL 495324 at *4, fn. 8 (Tex.App.-Amarillo Feb. 25, 2008, no pet. h.). Because Natasha and Timothy's issues relating to the sufficiency of the evidence, best interest of the child, and public policy argument were not presented to the trial court in a timely filed statement of points as otherwise required by § 263.405(b) and (i), they were not preserved; therefore, we will proceed to address their due process argument. They contend the procedural requirement that a statement of points be filed within fifteen days after the trial court signed the termination order violated their federal and state due process rights. We disagree.

Due Process Violation

If possible, courts must interpret a statute in a manner that renders it constitutional. FM Properties. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000). A party challenging the constitutionality of a statute must establish that the statute always operates unconstitutionally. Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex. 1999). In reviewing a facial challenge to a statute's constitutionality, we consider the statute as written, rather than as it operates in practice. Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 626-27 (Tex. 1996).

Natasha's appointed appellate counsel points out that he filed a statement of points within fifteen days after receiving the reporter's record, which was necessary to fully develop a statement of points. He argues that the fifteen day period in which to file the statement of points from the date the trial court's order was signed violated Natasha's due process rights by "barring her from access to the court system." Counsel ignores the fact that he was appointed twenty-seven days prior to the statement of points being due, as well as the fact that he also served as appointed trial counsel. Regardless of when he received the reporter's record, he should have been able to fully develop a timely statement of points. The statute, as written, does not provide for filing a statement of points within fifteen days of receiving the reporter's record. Such an interpretation would defeat the expediency intended by the Legislature in enacting the statute. See In re R.J.S., 219 S.W.3d at 626.

Timothy's appointed appellate counsel ⁽⁵⁾ maintains that the arbitrary designation of a date certain to file specific issues for appeal is unnecessary when the Legislature has granted the right to appeal. He argues that the statute promotes a system of unreasonably restricting an indigent parent's right to appeal a termination order thereby violating a parent's due process rights. Section 263.405(i) operates equally to indigent as well as non-indigent parents. Therefore, it does not, in and of itself, operate to restrict an indigent parent's right to appeal a termination order.

Additionally, counsel urges that Timothy's notice of appeal "evidences his intent to appeal the decision of the trial court." Once again, as written, § 263.405 does not provide that a notice of appeal (which provides no notice to the trial court) expressing dissatisfaction with the trial court's order is sufficient to satisfy the requirement for a timely filed statement of points.

Under the facts of this case, a procedural requirement, i.e., a specific number of days within which to file a document, in and of itself, did not violate Natasha or Timothy's due process rights. Timothy's first and second issues and Natasha's two reply issues alleging due process violations are overruled.

Conclusion

Having rejected Natasha and Timothy's due process arguments, we conclude that neither Natasha nor Timothy have preserved any of their arguments based on sufficiency of the evidence, best interest of the child, or public policy for appellate review. Natasha's four issues raised in her original brief are overruled, and Timothy's third and fourth issues are overruled.

Consequently, the trial court's order terminating Natasha and Timothy's parental rights to their child, M.D., is affirmed.

Patrick A. Pirtle

Justice

1. Sitting by assignment for the Honorable Don Emerson.

2. To protect the parents' and child's privacy, we refer to the parents by their first names and the child by his initials.  See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2002).

3. Natasha filed a reply brief also contending that § 263.405(b) and (i) violates her federal and state due process rights by requiring a statement of points to be filed within fifteen days after the order is signed. Technically, Rule 38.3 of the Texas Rules of Appellate Procedure does not allow an appellant to raise a new issue in a reply brief that was not raised in the original brief. See Gray v. Woodville Health Care Center, 225 S.W.3d 613, 620 (Tex.App.-El Paso 2006, pet. denied); Howell v. Texas Workers' Compensation Com'n, 143 S.W.3d 416, 439 (Tex.App.-Austin 2004, 2 pets. denied). However, because Timothy challenged the statute in his original brief, in the interest of justice, we will also review Natasha's challenge.

4. In re R.M.R., 218 S.W.3d 863, 864 (Tex.App.-Corpus Christi 2007, no pet.); Pool v. Tex. Dep't. of Family & Protective Services, 227 S.W.3d 212, 215 (Tex.App.-Houston [1st Dist.] 2007, no pet.); In re D.A.R., 201 S.W.3d 229, 231 (Tex.App.-Fort Worth 2006, no pet.); In re E.A.R., 201 S.W.3d 813, 814 (Tex.App.-Waco 2006, no pet.) (Vance, J., concurring).

5. The clerk's record reflects that Timothy's appointed appellate counsel also served as his trial counsel.

xpense would be wasteful and futile. Id. The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. Further, on appeal, we generally presume the jury follows the trial court’s instructions, such as an instruction to disregard, in the manner presented. See Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App. 2005). While the presumption is refutable, the appellant must be able to point to evidence contained in the record to prove that the jury failed to follow the trial court’s instruction. Id.

Motion for Mistrial-Extraneous Offense Testimony

          Appellant’s first issue concerns a portion of the testimony of Henderson. After describing a number of observations that lead Henderson to believe that appellant might be carrying drugs in his vehicle, the State asked, “And was it at that point where you asked for permission to search the vehicle.” Henderson replied that,

As I issued the citation, I could hear on my outside speakers that Childress DPS was giving back his prior criminal arrests, I went and stood by my car and listened to those. It advised that he had been arrested for reckless driving, DUI and also had a prior arrest for violation of a controlled substance, dangerous drug. At that point in time, I finished the citation.

Appellant’s trial counsel objected and, after a discussion at the bench, the trial court sustained the objection and instructed the jury to disregard and not consider the last statement of the witness for any purpose. Appellant moved for a mistrial and the motion was denied.

          The record before the Court reflects that the statement made by Henderson was not given in answer to a question designed to elicit testimony about any extraneous offenses. Clearly, the question was to determine when the officer asked for permission to search and not why he asked permission to search the vehicle. Further, appellant has pointed to no evidence in the record that would indicate that the jury failed to follow the immediate instruction of the trial court to disregard the testimony. Id. Under these facts we must assume that the jury followed the instructions of the trial court to disregard the testimony. Ladd, 3 S.W.3d at 567. Accordingly, no error has been shown. Id. Appellant’s issue regarding the first mistrial motion is overruled.

Motion for Mistrial-Prosecutorial Misconduct

          Appellant’s next contention involves two alleged instances of prosecutorial misconduct that required a mistrial. We will examine each alleged incident.

          In the first instance, after the jury had been selected and sworn, but while the jury was out of the courtroom, the trial judge instructed appellant and trial counsel to switch seats at counsel table. The instruction to change places at counsel table was based upon a request made to the trial court by the State’s attorneys. It is noteworthy that the trial court also stated that the changing of seats would better accommodate the terrible acoustics in the courtroom.

          The second instance of alleged misconduct by the State’s attorneys occurred when appellant testified. After appellant had finished testifying and returned to his seat, trial counsel asked permission to approach the bench. At the bench conference, trial counsel complained about the action of the State’s attorneys standing and moving away from counsel table when appellant walked behind counsel table going to or from the witness chair. Counsel’s complaint at trial was that this sent a message to the jury that appellant was a dangerous and bad man. The trial court stated that it was common practice for the State’s attorneys to move away from counsel table when a defendant walked behind counsel table going to and from the witness chair.

          Although appellant contends that these actions, in both instances, were acts of prosecutorial misconduct, he has provided the court with no authority for that proposition. In fact, appellant has provided the court with no authority for how the courts in Texas even define prosecutorial misconduct. As such, appellant has failed to properly brief this issue. See Tex. R. App. P. 38.1(i). Appellant has therefore, waived the issue. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000).

          Assuming that appellant’s brief does properly brief the subject, we note that one instance occurring, as it did, outside the presence of the jury could not have inflamed the minds of the jury to such an extent to render proceeding with trial a wasteful and futile endeavor. Ladd, 3 S.W.3d at 567. As to the second instance, there is nothing in the record that reflects the jury’s attention was drawn to the conclusion that appellant would have us reach, that is that the jury perceived appellant as a violent and dangerous person. The decision of a trial judge regarding permissible security precautions in court are reviewed for abuse of discretion. See Long v. State, 823 S.W.2d 259, 282 (Tex.Crim.App. 1991). We find nothing in the record to support the conclusion that the trial court’s decision in this matter was an abuse of discretion.

Legal and Factual Sufficiency

          Appellant challenges both legal and factual sufficiency. Therefore, we are required to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).  

          In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We measure the legal sufficiency of the evidence against a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).  

          When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give deference to the fact finder’s determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict. See id. at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The Court of Criminal Appeals has recently declared that when reviewing the evidence for factual sufficiency, the reviewing court should measure the evidence in a neutral manner “against a hypothetically correct” jury charge. Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App.), citing Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008).

  Legal Sufficiency

          To prove appellant guilty of the indicted offense the State had to prove: 1) appellant; 2) intentionally or knowingly; 3) possessed; 4) a controlled substance, cocaine; 5) in an amount of 400 grams or more. See Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003). Appellant’s contention about the sufficiency of the evidence centers on the proof that appellant possessed the cocaine. To establish possession, the State must prove that: 1) appellant exercised control, management or care over the substance, and 2) appellant knew the matter possessed was contraband. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). Because appellant was alone in the vehicle in which the cocaine was found, he may be deemed to have possessed it. See Menchaca v. State, 901 S.W.2d 640, 652 (Tex.App.–El Paso 1995, no pet.). This is because knowledge of the cocaine is inferred from control of the vehicle. Id. However, when the contraband is in a hidden compartment, as was the cocaine in the case at bar, we are cautioned that reliance should not be placed solely upon control of the vehicle. Id. (citing U.S. v. Olivier-Becerril, 861 F.2d 424, 426-27 (5^th Cir. 1988). In order to establish possession in such a situation we must look at the other factors surrounding appellant’s connection to the cocaine. Id. The type of factors we review are akin to the factors that link a defendant to contraband in a situation where the defendant is not in exclusive possession of the cocaine. Id.

          A review of the facts reveals the following factors that a jury might consider. First, there is the initial and continuing nervousness of appellant when Henderson approached the vehicle. Henderson’s testimony was that appellant’s voice was strained and his hands shook when appellant handed over his driver’s license and insurance card. Next, appellant was unable to accurately answer who owned the vehicle. He initially stated David and then, according to Henderson, appellant appeared to read the name on the insurance card and correctly stated Mark. Appellant advised he was traveling from Phoenix, Arizona. When asked where he was headed, appellant stated Cleveland, Ohio, however he was not able to give an address in Cleveland as his destination. Additionally, on the seat next to appellant was an road atlas open to Columbus, Ohio, with an address in Columbus written on it. Then, there is the issue of the strong smell of the air freshener coming from the vehicle. Alone, this might be subject to some rational explanation. However, when Henderson investigated further, he found that the rear compartment of the vehicle had a very strong smell of fresh paint and “bondo.” This could lead a jury to view appellant’s action of spraying the air freshener to mask the smell of the paint and “bondo” for fear that Henderson would find the hidden compartment. This becomes important because it was this subsequent paint and “bondo” smell that led Henderson to believe that some recent modifications had been made to the rear compartment of the vehicle. Also, an ice chest was located in the passenger compartment next to the driver. Henderson opined that, in his experience in drug interdiction, people transporting drugs often carry food with them so that they do not have to leave the vehicle and drugs unattended during their trip. Finally, there was the testimony of FBI Agent Gill about his investigation of drug trafficking in the Columbus, Ohio area. During his investigation, Agent Gill was able to ascertain that appellant was a good friend of Fernando Sandoval, the person Gill was investigating and who was later convicted of drug trafficking. That investigation revealed that appellant came to Columbus, Ohio, to visit Fernando and flew from Columbus, Ohio, to Phoenix, Arizona, on December 4, which was two days before appellant’s arrest.

          Appellant cites the Court to an unreported case from the Texas Court of Criminal Appeals, contending that the facts of the present case are so similar to the cited case that we should adopt the opinion of the Court of Criminal Appeals. See Molina v. State, Nos. 205-03, 206-03, 2003 WL 22250391 (Tex.Crim.App. Oct. 1, 2003) (mem. op., not designated for publication). However, the facts of Molina are clearly distinguishable from the case at bar. First, Molina was a passenger and not the driver of the car. Id. at *2. Second, Molina’s co-defendant testified that Molina did not know about the drugs. Id. at *3. Third, prior to the trip where Molina was arrested, there was no evidence that connected him with the car. Id. at *3. Finally, although Molina did exhibit nervousness when the stop commenced, he gave his true name and destination. Id. The testimony of his co-defendant bore out this information. The Court in Molina held that there were insufficient links to connect Molina with the drugs, and, therefore, to prove his knowledge of the existence of them. Id. at *4. Accordingly, we do not find Molina to be controlling.

          It must be remembered that proof of culpable mental state generally exists only in circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App 1978). Therefore, proof of knowledge is an inference drawn by the trier of fact from all of the circumstances. Id. From our review of the circumstances, we believe that the jury could have convicted appellant of the charge of possession of cocaine beyond a reasonable doubt. Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. Accordingly, appellant’s challenge to the legal sufficiency of the evidence is overruled.

Factual Sufficiency

          We note that appellant’s brief states that he is challenging the factual sufficiency of the evidence. However, the brief appears to only address the legal sufficiency of the evidence. Out of caution we will, however, address factual sufficiency.

          To determine the factual sufficiency of the evidence, we must now review the evidence in a neutral light to determine its sufficiency. Watson, 204 S.W.3d at 415. When we examine the links in the evidence that would tend to connect appellant to the cocaine, in addition to his exclusive control of the vehicle, we find that a jury would be rationally justified in finding appellant guilty beyond a reasonable doubt. Id. This is so because the jury’s determination of this matter is supported by the evidence. Id. We must give deference to that determination when it is supported by the evidence. Id. Finally, appellant has not pointed to any single factual deficiency, other than that explored during the legal sufficiency portion of this opinion, that would undermine our confidence in the jury’s verdict. Sims v. State, 99 S.W.3d at 603. Having already addressed those issues, we overrule appellant’s factual sufficiency challenge.

Conclusion

          Having overruled appellant’s issues, we will affirm the judgment of the trial court.

                                                                Mackey K. Hancock

                                                                          Justice

Do not publish.