in the Interest of F. A. A., a Minor Child

• Court: Court of Appeals of Texas
• Decided: August 4, 2005
• Docket: 13-03-00721-CV
• Status: Published

Opinion

                             NUMBER 13-03-00721-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

                       IN THE INTEREST OF F.A.A., A MINOR CHILD.

On appeal from the 92nd District Court of Hidalgo County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

Appellant, the biological father of F.A.A., a minor child, appeals from the trial court=s order terminating his parental relationship with F.A.A.  In two issues, appellant contends (1) he was denied effective assistance of counsel and (2) the trial court erred in excluding the testimony of Maria Rodriguez.  We affirm.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

A.  Motion to Dismiss

On March 3, 2004, appellee, Texas Department of Protective and Regulatory Services (ATDPRS@), filed a motion to dismiss this appeal for want of jurisdiction because appellant did not perfect his appeal within twenty days from the date the judgment was signed.  See Tex. R. App. P. 26.1(b).  The order terminating appellant=s parental rights was signed on September 9, 2003, and made final by the signing of a severance order on September 21, 2003.  Therefore, the deadline for filing the notice of appeal was October 11, 2003.^[1] 

On September 30, 2003, appellant=s trial counsel, Romeo Perez and Michael R. Salinas, filed a Motion for Withdrawal/Substitution of Counsel, which provided, in pertinent part, as follows:

Romeo Perez and Michael R. Salinas are currently [appellant=s] attorneys.  The attorneys tried the above case to judgment.  [Appellant] has informed the attorneys that he wants to appeal the case.  Neither of the attorneys work on appeals.  In the interest of justice, the undersigned attorneys request that the court enter an order allowing them to withdraw from the case and that the court appoint an attorney experienced in appeals to work on the appeal.

(emphasis added.)  The trial court signed an order on November 10, 2003, allowing trial counsel to withdraw, and appointing appellate counsel.  On December 3, 2003, counsel appointed to represent appellant on appeal in the order dated November 10, 2003, filed a motion to withdraw and substitute, and an order granting appointed counsel=s request to withdraw and substituting present appellate counsel was signed on December 5, 2003.  On the same date, present appellate counsel filed a notice of appeal, and on December 9, 2003, he filed ARespondent=s First Amended Notice of Appeal.@

An appeal is perfected when a written notice of appeal is filed with the trial court clerk.  Tex. R. App. P. 25.1(a).  An appellate court has jurisdiction over an appeal when the appellant files any instrument that is a Abona fide@ attempt to invoke appellate jurisdiction.  Grand Prairie ISD v. Southern Parts Imps., Inc., 813 S.W.2d 499, 500 (Tex. 1991).  Under rule 25.1(f), an amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed at any time before appellant=s brief is filed.  Tex. R. App. P. 25.1(f).

We construe the language contained in trial counsel=s motion to withdraw as a Abona fide@ attempt to invoke appellate jurisdiction.  Although this notice of appeal was deficient, see Tex. R. App. P. 25.1(d), appellant corrected these deficiencies before the filing of his brief.  See Tex. R. App. P. 25.1(f).  Considering the delay in the appointment of appellate counsel, we conclude the defects were corrected within a reasonable time.  See Tex. R. App. P. 44.3 (court of appeals must not dismiss appeal for formal defects in appellate procedure without allowing reasonable time to correct or amend defects).  TDPRS=s motion to dismiss this appeal for want of jurisdiction is denied.

B.  Ineffective Assistance of Counsel

In his first issue, appellant contends his trial counsel was ineffective because counsel (1) failed to object to the admission of evidence related to his murder conviction, (2) failed to object to the admission of hearsay testimony of Jorge Gonzalez, and (3) failed to make of an offer of proof in question and answer form. 

The statutory right to counsel in parental‑rights termination cases embodies the same right to effective assistance of counsel as is applied in criminal cases.  In re M.S., 115 S.W.3d 534, 544‑45 (Tex. 2003).  Under that standard, to establish ineffective assistance, an appellant must show that (1) counsel's performance was deficient, i.e., it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced in that there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances.  Id. at 689.  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal.  Id. at 813-14.

Counsel's reasons for failing to object and present an offer of proof in question and answer form do not appear in record.  It is possible for counsel to have legitimate reasons for his conduct.  See Taylor v. Tex. Dep't of Protective & Regulatory Servs, 160 S.W.3d 641, 653 (Tex. App.BAustin 2005, pet. filed) (inadmissibility of convictions pending appeal applies only to convictions offered for purposes of impeachment); see also Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App.  1998) (offer of proof may be in form of concise statement by counsel).  Accordingly, appellant=s first issue is overruled.

C.  Exclusion of Evidence

In his second issue, appellant contends the trial court erred in excluding the testimony of Maria Rodriguez.  We review questions regarding the admission or exclusion of evidence under an abuse of discretion standard.  Owens‑Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).  We must uphold a trial court's evidentiary ruling if there is any legitimate basis in the record to support it.  Id.

Under Texas Rule of Civil Procedure 193.6, if a party fails to make a discovery response in a timely manner, that party may not introduce in evidence the information that was not disclosed or offer the testimony of a witness who was not properly identified.  Tex. R. Civ. P. 193.6.  The sanction is automatic.  See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395 (Tex. 1989).  There is an exception when the party seeking to introduce the evidence shows good cause for the failure to timely respond and the failure to timely respond will not unfairly surprise or prejudice the other party.  Tex. R. Civ. P. 193.6. Determination of good cause is within the sound discretion of the trial court.  Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297‑98 (Tex. 1986).

The record shows that appellant attempted to call Maria Rodriguez as a witness, but TDPRS objected because appellant had not disclosed Rodriguez as a witness.  Appellant admitted that (1) Rodriguez was not on the witness list and (2) he previously knew about her.  Appellant argued good cause because he did not know Rodriguez=s name or whereabouts until the day before he called her as a witness.  The record shows that despite his acquisition of the witness=s name and whereabouts the day before he called her to testify, appellant failed to inform opposing counsel.  TDPRS=s counsel had no knowledge of this witness until appellant called her name at 1:35 p.m.  Under these facts, we cannot conclude that the trial court abused its discretion in excluding this witness.  Appellant=s second issue is overruled.

The trial court=s order terminating appellant=s parental rights is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 4th day of August, 2005.

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^[1] An appeal from a final judgment terminating the parent-child relationship is accelerated, and the procedures for an accelerated appeal apply.  See Tex. Fam. Code Ann. ' 109.002 (Vernon 2002); Tex. R. App. P. 26.1(b).