Opinion
No. 01-10-00415-CV
Opinion issued November 10, 2010.
On Appeal from the 306th District Court, Galveston County, Texas, Trial Court Case No. 08CP0096.
MEMORANDUM OPINION
This is a parental termination case. After a jury trial, J.H.'s parental rights to B.H. were terminated. See TEX. FAM. CODE ANN. § 161.001 (Vernon Supp. 2010). In three issues, J.H. contends that the evidence was legally and factually insufficient to support the jury's verdict of termination. We conclude appellant has not preserved his appellate issues, and we affirm.
I. Background
Appellant J.H. is the biological father of his daughter, B.H., and a son, J.H., Jr. The biological mother of both children is J.T. J.H. and J.T. lived in J.T.'s mother's house, and they shared a bedroom with their children. J.T.'s mother testified that J.H. was a good father who fed B.H. and played with her. She also said that she had known J.H. to be violent and to question whether he was baby J.H., Jr.'s biological father.
One evening around 9:00 p.m., J.H.'s parents took B.H. to their house for an overnight visit. For the rest of the night, only J.H., J.T., and six-week-old son J.H., Jr. were in the bedroom. J.T.'s mother testified that she left for work the next morning around 5:30 a.m. When she left, she noticed that the door to J.H. and J.T.'s bedroom was closed, and she saw J.H. looking out a window in the closet. When J.H. and J.T. awoke, they found their son lying dead in his crib. J.T.'s sister, who slept in the adjoining bedroom, overheard their excited conversation, went into their bedroom, and then called the police. J.T.'s mother received a call at work and immediately returned home.
Detective C. Beyer and Officers Trentman and M. Trevino of the League City Police Department responded to the home. Detective Beyer testified that he saw the deceased infant, who had a fresh-looking cut above his eye in the shape of a half-crescent. He looked at the bedroom and noticed that inside the crib were numerous stuffed animals, a baby bottle, plush blankets, and a standard-sized pillow on which he saw a small spot of blood. Initially, Beyer did not believe there was any reason to suspect homicide. J.T. and J.H. consented to a search of the bedroom. Officers found 0.12 grams of marijuana hidden in the crib. They found no blood on the carpet or the walls. There was no blood on J.H.
Later that day, J.H. gave a recorded statement to police. J.H. said that J.T. fed and cared for the baby around 5:00 or 5:30 a.m. In a second recorded statement, J.H. said that he fed and cared for the baby. J.H. also told a third version about what happened during the early morning that day: that he woke up, propped a bottle in the crib for the baby to drink, and went back to sleep. However, J.H. consistently said that nobody else entered their bedroom between approximately 5:00 a.m. and 10:30 a.m. that day. He also admitted that he smoked marijuana the previous night, a fact that he never recanted. J.H.'s recorded statements were shown to the jury. When J.H. was called to testify, he denied using methamphetamines the night before the baby's death, but he otherwise asserted his Fifth Amendment right to remain silent in response to every other question that was posed to him. J.T.'s mother testified that J.H. had told her that he thought the baby suffocated and that he did not "do it."
The medical examiner conducted an autopsy, which showed that the baby had several fractured ribs (some of which were fractured two to three days before the baby's death), a fractured spinal column, injuries to his head, swelling of the brain, internal hemorrhaging, and bruises on his torso and thigh. Some bruises appeared to be two to three days old. The baby was in a clean, dry diaper and had no food in his stomach. Based on his evaluation of the nature of the injuries, the medical examiner concluded that the baby's death was a homicide, caused by excessive trauma. At trial, the medical examiner testified that the injuries were most consistent with "vigorous shaking" and possibly consistent with some other blunt force trauma. For example, as to the internal bleeding in the baby's abdomen, the medical examiner testified, "This is bleeding by shaking or being hit." He also testified that babies' bones do not break easily, that there was no evidence of brittle bone disease, that the injuries could not have been caused by falling down stairs, by CPR, or during childbirth. The medical examiner opined that the baby likely died within three hours after being shaken.
By the time of the baby's funeral, J.T. was a suspect in the murder of his son. A co-worker of J.T.'s mother, D.M., attended the baby's funeral. When she saw J.H. standing alone by his son's casket, she went to him to offer support. D.M. testified that J.H. repeatedly said, "It's my fault. I did it." Believing that the baby died from sudden infant death syndrome, she tried to reassure him that it was not his fault and to explain what she knew about crib death. League City police officers arrested J.T. at the funeral on outstanding warrants. A week later, J.T.'s mother told D.M. that the baby had been murdered, and D.M. reported what J.H. said at the funeral.
J.H. was deported to Mexico before he was indicted for capital murder. After the deportation, J.H. contacted J.T.'s mother both from Mexico and from another location in Texas. J.T.'s mother testified that he said feared for his life due to prevalent gang violence in Mexico and wanted to come back. J.H. also communicated with his parents.
J.H. was charged with capital murder, rearrested in Harris County, and transferred to Galveston County jail. While in jail, he befriended another inmate, Christopher Altizer, who exercised with him in the prison yard on a regular basis. Altizer testified that J.H. told him he was a member of the Houstone gang. As to the baby's death, Altizer testified that he overheard J.H. say "something along the lines that his baby mama did it." Altizer also testified that J.H. "said that he was on drugs and that his baby wouldn't stop crying, so he hit it." He testified that J.H. told him he was high on methamphetamines at the time of the baby's murder. Altizer was in jail at the time for sexual assault of a child, and he pleaded guilty to indecency with a child. He testified that his plea bargain preceded his disclosure of J.H.'s statement and that he received no deal or consideration in exchange for his testimony.
The Department of Family and Protective Services sought termination of both J.H.'s and J.T.'s parental rights to their daughter B.H. J.T. relinquished her parental rights, but J.H. did not. The Department did not offer any services to J.H. and did not contemplate family reunification as a disposition of B.H.'s case. By the time of trial, B.H. had been living with her maternal grandparents for more than a year, and the grandparents had intervened in the termination suit because they wished to adopt her. In addition to the previously mentioned witnesses, the jury heard testimony from three employees of Children's Protective Services, investigator Karen Coblentz, investigative supervisor Cheryl Bourda, and conservatorship worker Jack Lawrence. Coblentz testified that CPS had received a referral regarding B.H. the month before the baby died. An anonymous caller informed CPS that while B.H. was in the care of J.H. and her maternal uncle, she was found hungry and crying in her crib, in dirty clothes with a diaper full of feces while J.H. and the uncle smoked marijuana. B.H. was 16 months old at the time. Coblentz also testified that J.T.'s sister, D.C., who lived in the same house with her three children, had prior CPS cases of her own. Bourda testified from an affidavit by David Henry, a CPS investigator whom she supervised and who could not be present at trial. She testified that J.H. told Henry that he might have dropped the baby, he might have shaken the baby to wake him up, and he might have used full hand thrusts while performing CPR on the baby. Lawrence testified that he was familiar with B.H.'s circumstances. He thought it would endanger B.H. to return to her father, who had been indicted for capital murder and that it would further endanger B.H. emotionally for her father to have killed her brother and to have illegal drugs in her bedroom. He testified that he believed it was in B.H.'s best interest for J.H.'s paternal rights to be terminated and for her maternal grandparents to adopt her.
After the close of evidence, the trial court held a charge conference. There were no objections to the charge, and J.H.'s attorney did not move for an instructed verdict. The jury was instructed on two predicate endangerment elements and the best interest of the child. The jury concluded that J.H.'s parental rights should be terminated. J.H.'s court-appointed trial attorney filed a notice of appeal. Eight days after the entry of final judgment, the trial court "removed" J.H.'s court-appointed trial counsel and appointed new counsel to handle J.H.'s appeal. Neither court-appointed lawyer filed with the trial court a motion for judgment notwithstanding the verdict, motion for new trial, or statement of appellate points. II. Waiver
In light of this procedural history, we wish to echo the guidance recently provided to bench and bar by the Supreme Court's opinion in In re J.O.A., 283 S.W.3d 336, 343-44 (Tex. 2009):
Often in these cases, there is a transition from trial to appellate counsel after rendition. Because of the accelerated appellate timetable and the critical fifteen-day deadline for the statement of points, and because trial and appellate counsel are often different people, there can be misunderstandings as to which attorney is responsible for filing a motion for new trial, a statement of points on appeal, and a notice of appeal.
Given the accelerated timetable, the burden should logically fall on trial counsel. . . . See, e.g., In re H.R., 87 S.W.3d 691, 703 (Tex. App.-San Antonio 2002, no pet.) (concluding that practical effect of accelerated appellate timetable is to burden trial counsel with responsibility of preserving client's appellate rights). As one court of appeals has noted, the fifteen-day deadline is a trap for the unwary. In re R.J.S., 219 S.W.3d 623, 627 (Tex. App.-Dallas 2007, pet. denied). That court of appeals has further suggested that trial courts should alert parents to the requirements of section 263.405 at the end of the final order terminating parental rights. Id. We agree and suggest further that . . . trial courts . . . take a proactive approach, assuring that indigent parents do not inadvertently waive their appellate rights under the Family Code. Because of the accelerated nature of these cases, trial courts must act expeditiously when appointing new counsel for the appeal.
Id. at 343-44.
J.H.'s three appellate issues all concern the legal and factual sufficiency of the evidence to support each of the two predicate acts and the best interest of the child. These points were not presented to the trial court and therefore have been waived.
Section 263.405(b) of the Family Code requires that a party who "intends to request a new trial or appeal the order" must file either a request for a new trial or, "if an appeal is sought, a statement of the point or points on which the party intends to appeal" not later than the fifteenth day after the date a final termination order is signed. TEX. FAM. CODE ANN. § 263.405(b)(1)-(2) (Vernon 2008). This statement of appellate points may be combined with a motion for new trial. Id. § 263.405(b-1). Pursuant to subsection (i) of section 263.405, this Court may not
consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.
Id. § 263.405(i). Nevertheless, the Texas Supreme Court has held that due process considerations would require an appellate court to consider an issue if the failure to include it in a statement of appellate points was the result of ineffective assistance of counsel. In re M.S., 115 S.W.3d 534, 543-49 (Tex. 2003). The Court also cautioned that not "every failure to preserve factual sufficiency issues rises to the level of ineffective assistance," because a decision not to challenge factual sufficiency may be based on strategy or a belief that, in the attorney's professional opinion, the evidence is factually sufficient. Id. at 549.
In J.P.B., a mother sought to challenge the legal sufficiency of the evidence supporting termination of her parental rights. In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005). The Supreme Court in that case noted that the court of appeals correctly held that the mother failed to preserve this issue. Id. The Court noted its prior holding in M.S. and explained that the mother did not allege in the court of appeals or in the Supreme Court that her trial counsel "unjustifiably failed to preserve a `no evidence' issue." Id. at 574. Accordingly, the legal sufficiency point was waived and the Supreme Court did not discuss the merits of that issue.
Similarly, J.H. did not file a statement of appellate points or a motion for new trial. Moreover, J.H. did not in any way allege that his counsel unjustifiably failed to preserve his appellate issues. The express terms of section 263.405(i) of the Family Code preclude our consideration of J.H.'s issues challenging the legal and factual sufficiency of the evidence. See id.; Fletcher v. Dep't of Family Protective Servs., 277 S.W.3d 58, 60 (Tex. App.-Houston [1st] 2009, no pet.) (holding that, in absence of statement of appellate points, appellant waived legal and factual sufficiency challenge to best-interest-of-the-child finding by failing to include it in his motion for new trial). Accordingly, we overrule J.H.'s issues.
CONCLUSION
We affirm the judgment of the trial court.