in Re Frank D. Carter, Relator

• Court: Court of Appeals of Texas
• Decided: September 20, 2004
• Docket: 07-04-00418-CV
• Status: Published

Opinion

NO. 07-04-0418-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 20, 2004

______________________________

IN RE FRANK DWIGHT CARTER, RELATOR

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

By this original proceeding, relator Frank Dwight Carter, proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the Honorable Mackey K. Hancock, Judge of the 99th District Court of Lubbock County, to dismiss his aggravated robbery charge and find that his conviction is void. Under applicable principles of law, mandamus relief is denied.

According to the documents filed by relator, he was indicted for aggravated robbery in 1989. That same year, the State filed a motion to dismiss the indictment in cause number 89-409,601, indicating that on July 7, 1989, relator had been re-indicted in cause number 89-409,752. Pursuant to the State's request, on July 12, 1989, the trial court signed an order dismissing cause number 89,409,601. See Tex. Code Crim. Proc. Ann. art. 32.02 (Vernon 1989) (providing that the State may dismiss a criminal prosecution at any time with permission of the trial court). A certified copy of the motion to dismiss and the trial court's dismissal order are included with relator's documents. See Tex. R. App. P. 52.3(j)(1)(A). Appellant was convicted of aggravated robbery pursuant to a subsequent indictment, and on June 12, 1990, was sentenced to confinement for life. Per relator's statements, this Court affirmed the conviction on May 1, 1992.

Mandamus is an extraordinary remedy available only in limited circumstances involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Relator is entitled to mandamus relief if he establishes (1) the act sought to be compelled is purely ministerial and (2) he has no other adequate legal remedy. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Cr.App. 2003). The ministerial act requirement is satisfied if relator establishes a "clear right to the relief sought" with nothing left to the exercise of discretion or judgment. Id.

Relator argues that the trial court was without jurisdiction over the re-indicted offense and that his conviction is void as a matter of law. By his prayer for relief he requests that Judge Hancock be directed to comply with the dismissal order entered in the first indicted offense in cause number 89-409,601.

It is well settled that dismissal of an indictment does not prevent the grand jury from returning a subsequent indictment charging the same offense. Ex parte Williams, 379 S.W.2d 911, 912 (Tex.Cr.App. 1964); see also Hughes v. State, 16 S.W.3d 429, 431 (Tex.App.-Waco 2000, no pet.). Furthermore, when the dismissal order does not indicate that the case was dismissed "with prejudice," it does not operate as a bar to a subsequent indictment and prosecution. Hughes, 16 S.W.3d at 431. The certified copy of the dismissal order provided by relator does not recite that it was dismissed "with prejudice."

The copy of the order included with relator's petition establishes that the trial court dismissed the first indictment. Also, by his own words, relator acknowledges that he filed a direct appeal of his conviction based on the subsequent indictment, which was affirmed. Thus, relator has not demonstrated any entitlement to mandamus relief.

Accordingly, the petition for writ of mandamus is denied.

Don H. Reavis

Justice

ing evidence of a course of conduct endangering H.R.S.' well-being.

That H.R.S. was not present when the arson occurred matters not for several reasons. First, James was unable to say that had she been within the home he would have acted differently. Not knowing whether her presence would have affected his conduct hardly suggests that she was somehow insulated from it. Second, one need not prove that the misconduct creating the danger was directed at the child or that the child actually suffered injury to succeed in terminating parental rights. Texas Dep't of Human Serv. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It is enough that the evidence illustrated a course of conduct endangering the physical or emotional well-being of the child. Id. And, committing several acts of arson knowing that the homes were occupied at the time by neighbors and one's own stepchild has such an effect.

2. Best Interests

As to the best interests of H.R.S., we again refer to the evidence of arson, James' apparent disregard for the life of those in the houses, and his inability to suggest that H.R.S.' presence would have affected his conduct in any way. To this we had evidence of James' historic inability or failure to financially support the child as ordered by the court,

his failure to regularly visit the girl (who resided in San Antonio at the time of trial), his

failure to maintain medical insurance covering the child, and H.R.S.' stability at her current home. Combined, that evidence provides ample basis upon which a trial court could have found, clearly and convincingly, that termination of the parent / child relationship was in the best interests of H.R.S. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976)(holding as informative when assessing the child's best interest such factors as the emotional and physical needs of the child now and in the future, the parental abilities of the individuals seeking custody, the plans for the child by those seeking custody, the stability of the home environment both past, present and future, the acts or omissions of the parent, and any excuse for the acts or omissions of the parent).

Conclusion

Thus, in perusing the record only for evidence supporting the trial court's decision, we find ample evidence. And, when that evidence is compared to the remaining portions of the record, we cannot say that the decision to end the parent / child relationship was wrong. So, we reject the contentions regarding the legal and factual sufficiency of the evidence. ⁽¹⁾

Issue Four -- Modification of Possessory Conservator

Next, Orville contends that the trial court abused its discretion in nullifying his status as a possessory conservator. This is allegedly so because the evidence fails to support the finding that continuation of the appointment would endanger the physical or emotional welfare of the child. ⁽²⁾ We overrule the issue.

Standard of Review

One's status as possessory conservator can be altered for various reasons. They include, among other things, a material and substantial change in circumstances of the child or conservator since initial appointment or 2) the existence of circumstances which render the conservatorship unworkable or inappropriate. Tex. Fam. Code Ann. §156.301(1) & (2). Furthermore, the decision to so alter that status is reviewed under the standard of abused discretion. In re Chandler, 914 S.W.2d 252, 253 (Tex. App.--Amarillo 1996, no writ). And, whether discretion is abused depends upon whether the court acted without reference to any guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). So, as long as the decision enjoys support in law and fact, it cannot be considered an abuse of discretion. Finally, because the standard is one of abused discretion, our review is not limited to determining whether the reasons proffered by the court to justify its decision were accurate. Rather, we may affirm the decision if other grounds illustrate it to be correct. Buls v. Fuselier, 55 S.W.3d 204, 208 (Tex. App.-Texarkana 2001, no pet.).

Application

Appearing of record is evidence that since the rendition of the initial possession order 1) William Corder (Orville's stepson with whom Orville regularly visits) confessed to murdering H.R.S.'s mother, 2) Orville's wife, Kathy, committed and admitted to shoplifting, 3) Orville and Kathy either underwent or are undergoing psychological treatment, 4) Orville and Kathy were prescribed medication to alleviate mental or emotional problems, and 5) the parental rights of James have been terminated. So too did the trial court hear and receive evidence indicating that during the exercise of Orville's visitation, H.R.S. 1) appeared frightened when she saw him, 2) was reluctant to start visiting with him, 3) seemed confused, and 4) cried after the visits. Finally, testimony imparted by Kathy could lead one to reasonably infer that she and Orville desired custody to enhance James' opportunity to see H.R.S. These are indicia upon which the trial court could have concluded that the termination of Orville's status as a possessory conservator was in the best interests of H.R.S. Thus, the trial court's decision was not an example of abused discretion.

Accordingly, we affirm the Order of Termination.

Brian Quinn

Do Not Publish.

1. Holding as we do relieves us from having to address issue two, i.e. that the evidence was both legally and factually insufficient to uphold the finding that James failed to support his daughter. This is so because either ground, if supported by the evidence, permitted termination. And, having already held that one did, we need not consider the other.

2.

In its findings of fact and conclusions of law, the trial court stated that the "appointment" of Orville as possessory conservator would not be in the best interests of the child. He had already been appointed and held that status at time of trial. Thus, reference to his "appointment" was inaccurate. Nevertheless, we view the error to be nothing more than typographical in nature given that Orville was a possessory conservator and the state sought the termination of that custodial status.