in Re: Lee Ann Grossnickle

• Court: Court of Appeals of Texas
• Decided: August 14, 2003
• Docket: 06-03-00096-CV
• Status: Published

Opinion

6-96-028-CV Long Trusts v. Dowd

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00096-CV

IN RE: LEE ANN GROSSNICKLE

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Lee Ann Grossnickle has filed a petition for writ of mandamus in which she asks this Court to order the 102nd Judicial District Court to immediately transfer venue of actions affecting the parent-child relationship. She contends the trial court has no discretion but to transfer venue because she has filed an affidavit indicating she and the child have now resided in Dallas for over six months, and her former husband, Richard Grossnickle, has not filed a controverting affidavit. See Tex. Fam. Code Ann. § 155.201(b) (Vernon 2002).

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

Her timely motion, in the absence of a controverting affidavit, would typically require mandatory transfer without necessity of a hearing. Section 155.201(b) provides that transfer is mandatory "on the timely motion of a party" if the child has resided in another county for six months or longer. Tex. Fam. Code Ann. § 155.201(b) (Vernon 2002).

That language is important because Section 155.204(a), which sets out the procedure to be followed in seeking a transfer, provides that a motion to transfer is timely if made (by the party filing initial pleadings) at the time the initial pleadings are filed, or within a short time thereafter if filed by the other party. Tex. Fam. Code Ann. § 155.204(a) (Vernon 2002). If the motion to transfer is timely, then the opposing party must file a controverting affidavit, or the Section 155.201(b) transfer is mandatory. Tex. Fam. Code Ann. § 155.201(b).

Further, there is an exception to the rule which explicitly provides that, if a suit to modify or motion to enforce is pending at the time a subsequent suit or motion is filed, the court may transfer the proceeding only if the court could have transferred it at the time the pending motion was filed. Tex. Fam. Code Ann. § 155.201(c) (Vernon 2002).

The record provided to this Court does show that the residence of Lee Ann and the child has changed for a period of over six months. It does not, however, clearly show that no pending motion or suit for modification was before the trial court at the time of its filing or that the motion was "timely" as required by statute. Indeed, we will take judicial notice of the fact that an appeal from a ruling by the trial court on child support is presently pending before this Court for decision. Further, this record does not reflect whether additional matters are continuing to be heard by the trial court of continuing jurisdiction that might also impact the availability of a transfer of venue at this point.

Section 155.204 contemplates the filing of the motion to transfer venue at the time of the filing of the initial request for relief. Tex. Fam. Code Ann. § 155.204 (Vernon 2002). It is not clear from the record provided in this mandamus that this occurred in the present case, and in Richard's response, he states that the matters presently before this Court were filed several years before Lee Ann filed her motion to transfer venue in March 2003.

Accordingly, we cannot conclude from the record presented that the trial court abused its discretion by declining to immediately transfer venue and instead setting the motion for a hearing.

We are aware that this matter has been set by the trial court for a hearing on the venue issue. When a court renders a final divorce decree, it acquires continuing, exclusive jurisdiction over the matters in the decree affecting a child of the marriage. Tex. Fam. Code Ann. § 155.001(a) (Vernon 2002); In re G.R.M., 45 S.W.3d 764, 766 (Tex. App.-Fort Worth 2001, no pet.). As the court which attained that status under an earlier transfer of venue, the 102nd Judicial District Court retains continuing, exclusive jurisdiction over the child unless jurisdiction has been transferred under Sections 155.201-155.207 of the Texas Family Code or an emergency exists. See Tex. Fam. Code Ann. §§ 155.001(c), 155.002, & 155.201-.207 (Vernon 2002); In re T.J.L., 97 S.W.3d 257, 263 (Tex. App.-Houston [14th Dist.] 2002, no pet.); G.R.M., 45 S.W.3d at 766-67.

We are confident that all necessary matters will be addressed during the hearing so that the trial court may make a ruling based on the complete status of the case.

We deny the petition.

Jack Carter

Justice

Date Submitted: August 13, 2003

Date Decided: August 14, 2003

nd that he was in the hospital for psychiatric problems when the charged offense occurred. The trial court granted both motions. In the sanity evaluation submitted to the court, we find an accounting of the facts of this incident:

Mr. Woods explained that he was released from TDCJ (the Walls Unit in Huntsville) the day before the alleged offense occurred. He said he took a bus to Houston, bought some fast food and "junk food" at the Greyhound bus station, then purchased some beer, and slept outdoors on the Miller Theater hill in Hermann Park. The next day, he said, he went to the Social Security office downtown (on Bell Street) to see about getting his SSI benefits resumed, and was frustrated by the need for a reevaluation because he "wanted (his) money right away." Thinking that being admitted to a psychiatric facility would speed up his eligibility, he then went to Ben Taub Hospital, where he presented with (sic) the complaint of having the urge to either jump off a bridge into Buffalo Bayou or walk in front of a train crossing Houston Avenue. He said he was turned down for admission, went to a vacant floor of the hospital building, and "grabbed one lady and then another and tore their clothes off."

Given defense counsel's knowledge as indicated in her motions, it appears that counsel should have filed the notice required in Tex. Code Crim. Proc. Ann. art. 46.03, § 2(a) (Vernon 1979). The State argues in its brief that a defense counsel who would file such motion before there was a professional evaluation would do so prematurely and run the risk of sanctions under Tex. Code Crim. Proc. Ann. art. 1.052(e) (Vernon Supp. 2001). However, given defense counsel's knowledge of Woods' actions and claims, such a motion would be neither premature nor sanctionable.

Even if defense counsel was deficient in this respect, Woods must also show that the deficiency was so serious as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687. In the case of a guilty plea, the defendant must show that counsel's alleged deficiencies caused the plea to be unknowing and involuntary. State v. Kelley, 20 S.W.3d at 151. Woods and the State both contend that is not the procedure followed in Harris County. Woods states in his brief that:

[T]he undersigned's (counsel's) experience has been that in Harris County it is customary for the motion for competency or insanity to be filed first. If an evaluation is returned which suggests that insanity is indeed a viable defense, it is more common for trial counsel to file his notice of intent to present evidence of insanity at that time. It would stand to reason that prior to an "insanity finding" from a psychiatrist or mental health expert, any declaration of intent to present evidence of insanity would often be rendered moot by contrary findings of the mental health experts which come later."

This argument effectively concedes the prejudice prong of the ineffective assistance argument. The parties agree that no harm would come to a defendant in Harris County who raises the insanity issue by the means shown in the record here rather than by following the Code of Criminal Procedure. Thus, we reject Woods' ineffective assistance claim.

Woods' second issue raises the question of whether the holding of our prior opinion in In re R.D.B., 20 S.W.3d 255 (Tex. App.-Texarkana 2000, no pet.), required defense counsel in this case to seek the appointment of a court-ordered mental health expert to assist the defense.

The right of a criminal defendant to such an appointment was established in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The court in Ake held that when a defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the state is required to provide him access to a psychiatrist's assistance on this issue if he cannot otherwise afford one. Id., 470 U.S. at 74. While the state is not required to purchase for the indigent defendant all the assistance his wealthier counterpart can buy, he is entitled to the basic tools of an adequate defense. Id., 470 U.S. at 77.

In R.D.B, 20 S.W.3d 255, we recognized the importance of a mental health expert to assist the defense. Contrary to the State's assertion, the mental health expert is more than just a witness; his purpose is to provide defense counsel with a basic tool for determining whether a mental health report favorable to the State is correct, or whether to go forward with a plea of insanity. The defense mental health expert serves as a valuable second opinion in the inexact science of psychiatry, where opinions and diagnoses on the same person may differ widely.

While in most claims of ineffective assistance the record generally does not contain sufficient information to rebut the presumption that counsel functioned effectively, ⁽²⁾ the record in this case, as in In re R.D.B., contains a substantial amount of information regarding Woods' previous mental health history. As we previously noted, counsel was evidently aware of this history at the time she filed her motions under Tex. Code Crim. Proc. Ann. art. 46.02 (Vernon Supp. 2001), and art. 46.03 (Vernon 1979). The court-appointed mental health expert filed two written reports in which he found that Woods' father had beaten him with a two-by-four when he was a child and had thrown him out the window where he struck his head on a rock. Woods had been committed at age thirteen to a state mental hospital. There is evidence that he heard voices telling him to do bad things and that he suffered hallucinations. There is a history of other commitments to mental institutions because of his mental health. Even if Woods' post-trial motion is ignored, there remains substantial evidence, known to trial counsel, showing past mental problems.

While in no way disparaging the report of the court-appointed psychiatrist, we recall the language of the Supreme Court in Ake, which reminds us that psychiatry is not an exact science, and the same symptoms in the same person, examined by different psychiatrists, may very well result in different opinions as to condition and treatment. More than one opinion would reduce "the risk of an inaccurate resolution of the sanity issues . . . ." Ake v. Oklahoma, 470 U.S. at 82. Like In re R.D.B., and unlike Easley, we have a significant recorded history of mental illness. In addition, the facts of the incident itself, particularly the location, further suggest the need for professional assistance regarding Woods' mental health. We find that as part of counsel's obligation to render effective assistance, defense counsel was required to request the court-appointed assistance of a mental health expert. In re R.D.B., 20 S.W.3d at 261. We find that counsel's failure to do so was prejudicial and undermines confidence in the outcome of the proceedings.

We sustain the second issue on appeal. The judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

William J. Cornelius

Chief Justice

Date Submitted: September 4, 2001

Date Decided: October 26, 2001

Publish

1. 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

2. See Easley v. State, 978 S.W.2d 244 (Tex. App.-Texarkana 1998, pet. ref'd), in which Appellant claimed ineffective assistance of trial counsel because, inter alia, counsel failed to request an appointment of a mental health expert for the defense. Just as occurred in the present case, counsel moved for a psychiatric evaluation of his client under Tex. Code Crim. Proc. Ann. arts. 46.02, § 3 (Vernon Supp. 2001), 46.03, § 3 (Vernon 1979 ). Finding no lack of effective assistance, we stated:

[S]ince the record shows that Easley's lawyer did file a motion for evaluation of Easley's mental status and competency to stand trial, and since her appellate counsel did not dispute that this motion was granted or that the evaluation was performed, it is a reasonable conclusion that the results of this evaluation could have influenced the decision by Easley's trial counsel not to make an ex parte request for an expert to testify as to her state of mind at the time of the killing. In the absence of evidence to the contrary, we cannot say that this decision denied Easley the effective assistance of counsel.

Easley v. State, 978 S.W.2d at 250-51 (emphasis added).