Billy Charles Jones v. State

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00021-CR

Billy Charles Jones,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. F38027

MEMORANDUM  Opinion

Appellant has filed a motion to withdraw and to dismiss his notice of appeal.  See Tex. R. App. P. 42.2(a); McClain v. State, 17 S.W.3d 310, 311 (Tex. App.—Waco 2000, no pet.).  We have not issued a decision in this appeal.  Appellant personally signed the motion.  Accordingly, the appeal is dismissed.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed

Opinion delivered and filed February 8, 2006

Do not publish

[CR25]

ficiency of the evidence, “close calls” go to the parent, citing Lewelling v. Lewelling, 796 S.W.2d 164, 168 (Tex. 1990)).  Termination is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by “clear and convincing evidence.”  Spangler v. Texas Dept. of Prot. & Reg. Servs., 962 S.W.2d 253, 256 (Tex. App.—Waco 1998, no pet.).

          And yet, in the face of requirements of clear and convincing evidence and strict scrutiny on a matter of constitutional dimension, the opinion in this case consists of conclusory statements that the evidence is legally and factually sufficient to support the findings of grounds for termination and that termination is in the best interest of Appellant’s two children.  What this opinion does is give the appearance that we have not carefully reviewed the evidence.  Even worse, it makes it appear that the Appellant’s attorney, a competent appellate attorney who has appeared and argued before us on many occasions, has not filed a brief raising issues worthy of our careful consideration.  In fact, her twenty-nine page brief and reply brief contain a detailed discussion of the evidence, or lack thereof, in support of the issues on appeal.  The Department’s reply brief consists of twenty-three pages of evidentiary discussion in support of the judgment.  Yet, the best this opinion can muster is four sentences on the evidence about endangerment and three about best interest concerning K.G.M. and five sentences on the evidence about endangerment and the same three sentences about best interest concerning W.F.M.  The recitations about the standards of review are much longer than the discussions of the evidence.  This opinion, in my view, does not demonstrate that this parent has been given a meaningful appeal of findings that she must live with for the rest of her life.  We can and ought to do better.

          If the United States Supreme Court means what it says about parental rights being of constitutional dimension and an interest “far more precious than any property right,” the courts should accord parents whose rights are subject to court-ordered termination the same “quasi-criminal” protections provided to juveniles whose liberty interests are threatened by “civil” juvenile proceedings and provided in some contempt and other proceedings.  See, e.g., In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998) (recognizing that juvenile cases are quasi-criminal in nature); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (the involuntary termination of parental rights implicates fundamental constitutional rights); In re L.D.T., 161 S.W.3d 728, 730 (Tex. App.—Beaumont 2005, no pet. h.) (comparing termination case to juvenile proceeding for Anders-brief purposes); In re J.H., 150 S.W.3d 477, 485 (Tex. App.—Austin 2004, pet. denied) (applying criminal harm analysis to juvenile proceeding because “quasi-criminal” in nature); In re Boyo, 143 S.W.3d 472, 476 (Tex. App.—Beaumont 2004, orig. proceeding) (“Contempt proceedings are quasi-criminal in nature, and the contemner is entitled to procedural due process throughout the proceedings.”); In re A.J.G., 131 S.W.3d 687, 694 (Tex. App.—Corpus Christi 2004, pet. denied) (criminal rules of procedure are utilized by civil courts in juvenile proceedings because of their serious, quasi-criminal nature); In re Dooley, 129 S.W.3d 277, 278 (Tex. App.—Corpus Christi 2004, orig. proceeding) (contempt proceedings in Texas have been characterized as quasi-criminal proceedings which should conform as nearly as practicable to those in criminal cases); Striedel v. Striedel, 15 S.W.3d 163, 166 (Tex. App.—Corpus Christi 2000, no pet.) (a hearing for protective order in a divorce case involves liberty issues because a person's freedom of movement is restricted—a quasi-criminal proceeding implicating due process); Ex parte McIntyre, 730 S.W.2d 411, 415 (Tex. App.—San Antonio 1987, orig. proceeding) (a contempt proceeding is unlike a civil suit, has some of the incidents of a trial for crime, and is quasi-criminal in nature; accordingly, proceedings in contempt cases should conform as nearly as practicable to those in criminal cases) (citing Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967)).

          I realize that the Texas Supreme Court has largely rejected this argument.  See In re B.L.D. 113 S.W.3d 340 (Tex. 2003).  The rationale there was that because civil evidentiary and procedural rules apply to termination cases, they are unlike other “quasi-criminal” civil cases.  That analysis seems contrary to statutory interpretations that have resulted in “quasi-criminal” designations because the statutes impose on fundamental constitutionally-protected interests.  What is more fundamental than a parent’s interest in continuing the parent-child relationship? Furthermore, one can justifiably question how, as the Texas Supreme Court found, the state’s interest in its error-preservation rules could outweigh a parent’s due-process rights under the Fourteenth Amendment (B.L.D., 113 S.W.3d at 354), particularly when termination proceedings have been characterized by the United States Supreme Court as “endeavoring to defend against the State's destruction of [] family bonds,” “to resist the brand associated with a parental unfitness adjudication,” and a parent, “like a defendant resisting criminal conviction, [] seeks to be spared from the State's devastatingly adverse action.”  M.L.B. v. S.L.J., 519 U.S. 102, 136, 117 S. Ct. 555, 574, 136 L. Ed. 2d 473 (1996).

          Although I concur in the judgment affirming the trial court’s judgment, I cannot join an opinion that does not provide to the litigants (particularly the parent whose rights have been irrevocably terminated), the higher courts, the bench and bar, and the public more of the facts and the analysis necessary to understand why the Appellant brought the issues or our reasons for rejecting them.

BILL VANCE

Justice

Concurring opinion delivered and filed July 27, 2005