in the Interest of M. G. and E. G.

Opinion

NO. 07-02-0191-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

DECEMBER 31, 2002

______________________________

IN THE INTEREST OF M.G. AND E.G., CHILDREN _________________________________

FROM THE 242^ND DISTRICT COURT OF SWISHER COUNTY;

NO. B-10079-00-10; HONORABLE ED SELF, JUDGE

_______________________________

Before QUINN and JOHNSON, JJ., and BOYD ⁽¹⁾

Appellant Carmen Guerra appeals from a judgment terminating the parental rights between Carmen and her children M.G. and E.G. By one issue she urges that the evidence is factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of the children. We affirm.

BACKGROUND

Appellant Carmen Guerra was married to Rosendo Romero, Sr., when she was 16 years old. She had not completed high school when she married, and never did. She had three children by Romero. The marriage was troubled and she separated from him in May, 1999. They were divorced in December, 1999.

After the divorce from Romero, Carmen's lifestyle, which had been poor to begin with, deteriorated. Carmen did not take care of the homes where she and her children lived. The homes were dirty, unkept, and infested with roaches and rats. The children were dirty. There was, on occasion, only spoiled food and milk in the house. She entered into serial relationships with men, among them Jesse Mancha, the alleged father of M.G., and Robert Garza, Jr., the alleged father of E.G. Carmen exhibited symptoms of depression and psychological inability to cope with life situations and decisions.

The three Romero children were removed from Carmen's custody by the Texas Department of Protective and Regulatory Services (TDPRS) in May, 2000, because of findings that the children had been sexually abused by Carmen's brother, Juan. Carmen, on occasion, continued to live in the same house where her mother and brother, Juan, lived.

M.G. was born in March, 2000. Five months after M.G. was born Carmen suffered a miscarriage. TDPRS removed M.G. from Carmen in October, 2000, when he was six months old. When E.G. was born on September 29, 2001, she was immediately removed from Carmen's possession and placed in a foster home.

TDPRS eventually sought termination of Carmen's parental rights as to M.G. and E.G. On March 11 and 12, 2002, the case was tried to the court sitting without a jury. Carmen's parental rights were terminated. Findings of Fact and Conclusions of Law were entered. Such findings of fact include the following:

4. The Court finds by clear and convincing evidence that it is in the best interest of the children the subject of this suit for termination of the parent/child relationship of Respondents CARMEN GUERRA, ROBERT GARZA, JR., AND JESSE MANCHA.

Via one issue, Carmen challenges factual sufficiency of the evidence to support the trial court's finding that termination of her parental rights was in the best interest of the children.

STANDARD OF REVIEW In reviewing a factual sufficiency of the evidence challenge to findings that termination of parental rights is in the best interest of the children, an appellate court reviews the evidence to determine if it is such that a reasonable fact finder could have formed a firm belief or conviction that the challenged grounds existed. See In re C.H., U.S. Tex. Sup. Ct. J. 1000, 2001 WL 1903109, *1, 5-6 (July 3, 2002); In re G.M., 596 S.W.2d 846, 847 (Tex.1980); State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). ⁽²⁾

Many factors may be pertinent when deciding what is in the best interest of children in a parental-rights termination case. See In re C.H., 2001 WL 1903109 at *9. Among factors the trier of fact should consider, if applicable are (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). But, any list of factors to be considered is not exhaustive, nor must all factors from any such list be proved as a condition precedent to termination of parental rights. See In re C.H., 2001 WL 1903109 at *9. ANALYSIS

The record before us is replete with strong evidence that Carmen either was unwilling or unable to keep her residence, and that of the children when they lived with her, in a semblence of cleanliness. Witnesses graphically depicted Carmen's houses (she moved frequently) as consistently littered with food, dirty diapers, refuse, stacks of papers, clothing and dirty dishes. Conditions such as an uncovered heater on the floor where it could be reached by a child were described. The houses contained infestations of vermin such as mice, roaches and wasps.

The evidence would support a conclusion that Carmen's care of her children was similar to her care for the houses. Testimony was presented that M.G. was developmentally delayed at the time he was removed from Carmen's possession. On one occasion Carmen was observed feeding M.G. from a bottle containing soured milk. When M.G. was taken to the foster home which had been arranged for him, he had not been bathed in some time and had a "stench" about him. After he was removed from Carmen's care and placed in the foster home his development progressed significantly.

Carmen was provided opportunities to improve her education, psychological condition, parenting skills, and personal habits during the relevant time periods. In her brief she points to evidence of her progress in those areas during the time TDPRS and other agencies were working with her before the termination trial.

Without detailing the evidence referred to by Carmen, we note that such evidence might warrant a factfinder's determining that termination of her parent-child relationship with M.G. and E.G. would not be in the best interest of the children. On the other hand, the evidence, only part of which is set out above, could support the formation of a firm belief or conviction by a reasonable factfinder that termination was in the best interest of the children based upon the emotional and physical danger to the children in the future if Carmen's rights were not terminated, the parental abilities of Carmen, the stability of the home of the foster parents who wanted to adopt M.G. and E.G., and the acts and omissions of Carmen in the past as to her lifestyle and care of her children. See id.

Accordingly, the evidence is factually sufficient to support the trial court's finding. We must, and do, overrule the issue.

CONCLUSION

Having overruled Carmen's sole issue, we affirm the judgment.

Phil Johnson

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. The standard does not require appellate deference to termination findings to the extent that the findings will be upheld on appeal so long as the findings are not so against the great weight and preponderance of the evidence as to be manifestly unjust. See In re C.H., 2001 WL 1903109 at *8.

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NO. 07-10-0124-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL B

                                                            OCTOBER 13, 2010

                                            ______________________________

                                                          JOSE ANGEL REYES,

Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

Appellee

                                           _______________________________

                           FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A17839-0811; HON. ROBERT W. KINCAID, JR., PRESIDING

_______________________________

Opinion  

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

            Appellant Jose Angel Reyes (appellant) appeals the trial court’s judgment requiring him to pay attorney’s fees and a withholding order directing that those fees be deducted from his inmate trust account.  We modify both documents and affirm them as modified.

Background

            Appellant was placed on deferred adjudication per his guilty plea to the crime of aggravated assault with a deadly weapon.  As a condition of probation, he was ordered to pay attorney’s fees of $750.  Subsequently, the State moved to adjudicate his guilt and revoke his probation because, among other things, he failed to pay the aforementioned fees.  The motion was granted, and the trial court sentenced appellant to ten years in prison.  It also ordered him to pay an attorney’s fee of $1,050, restitution in the amount of $30,043.01, a $1,000 fine and $285 in court costs.  Another order, entitled “TDCJ Inmate Trust Fund Withdrawal Order,” was signed by the trial court directing the payment of $32,378.91 from appellant’s inmate trust account.  Thereafter, appellant perfected a timely appeal.   

Issue One – Attorney’s Fees

            Specifically, appellant contends that the trial court erred by ordering him to pay $1,050 in attorney’s fees because the record contained insufficient evidence to show that he “had any financial resources” from which to pay them.  We agree in part.

            As disclosed by the record, appellant was determined to be indigent and, therefore, received appointed counsel for both the original plea and adjudication hearings.  Furthermore, nothing of record illustrated that his economic status had changed between the time he was first found impoverished and ultimately adjudicated guilty and sentenced to prison.  Thus, the statutory elements prerequisite to his being held obligated to pay $1,050 in fees have not been established.  See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon  Supp. 2010) (specifying when a trial court may order one who received appointed counsel to pay attorney’s fees).  

            Nonetheless, the State contends that appellant implicitly agreed to pay $750 of the $1,050 fee when he pled guilty per the parties’ bargain, received probation, and became subject to the conditions of probation levied by the court.   Therefore, the argument goes, he cannot be relieved of paying the $750 sum.  We find the contention accurate. 

            This court previously held, in Mayer v. State, 274 S.W.3d 898 (Tex. App.–Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex. Crim. App. 2010), that a trial court generally erred by ordering a defendant to pay a fee for a court-appointed attorney when the record contained no evidence illustrating that he had sufficient financial resources to pay it.  Id. at 901-02.  Yet, we were not dealing with fees arising from a plea bargain and levied as a condition of probation there.  In the latter circumstance, the result may not be the same.  This is so because an award of community supervision (or probation) is not a right, but a contractual privilege.  Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999).  Additionally, the conditions appended to the grant of community supervision are terms of the contract entered into between the trial court and the defendant.  Id.  More importantly, those to which no one objects are considered to be affirmatively accepted as part of the contract, which means, in turn, that the accused normally waives any complaint with regard to them.  Id.  In other words, one benefitting from the contractual privilege of probation must complain at trial about any conditions he deems objectionable, and unless he does that, belated objections are waived.  Id.    

            Given Speth, we agree with the State that appellant should have complained to the trial court about the condition of his probation obligating him to pay $750 in attorney’s fees at the time the condition was imposed.  Because he did not, he not only affirmatively accepted it but also waived any objection to it.   The same is not true of the additional $300 assessed once appellant was adjudicated guilty; the imposition of that sum is controlled by the holding in Mayer.  And, because the record does not reflect that appellant had the financial means to pay it, the trial court erred by imposing it.  Accordingly, we modify the trial court’s judgment by reducing the amount of attorney’s fees payable by appellant from $1,050 to $750. 

Issue Two – Withholding Order

            Through his second issue, appellant contends that the trial court erred by entering its withholding order allowing for money to be withdrawn from his inmate trust account.  This purportedly was error because he failed to receive notice of the order (i.e. was denied due process) and because insufficient evidence supported the award of $1,050 in attorney’s fees. 

            As for the amount of attorney’s fees levied, our disposition of the foregoing issue obligates us to also modify the withholding order.  The sum subject to collection will be reduced from $1,050 to $750 for the reasons explained above.

            As for the argument about notice and due process, we note that the assessment of the fees arose as part of the adjudication of appellant’s guilt in this criminal cause.  He had been found to be an indigent entitled to appointed counsel.  Moreover, the attorney’s fee alluded to in the withholding order (as modified) was the sum that appellant agreed to pay.  These circumstances comport with those in Harrell v. State, 286 S.W.3d 315 (Tex. 2009), an opinion we deem controlling.  Because Harrell had been determined to be an indigent and the taxing of costs occurred as part of the two criminal cases against him, “he ha[d] already received all that due process demands” with regard to their taxation, according to the Supreme Court.   Id. at 320.  However, the risk that the amounts contained in the withholding order may differ from those actually taxed caused the Court to state that Harrell also was entitled to notice of the withholding order’s issuance and opportunity to test it.  Id. at 321.  That concern proved accurate here, given our conclusion that the amount of fees mentioned in the withholding order was excessive.  Yet, our so concluding also evinces that appellant received the due process required by Harrell.  Before altering the order, we were informed of the error.  Moreover, that information was imparted to us by appellant; so, he obviously had notice of the decree and opportunity to question its accuracy. 

            As the Supreme Court recognized in Harrell, “[t]he constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances.”  Id. at 319.  In other words, it is not a “one size fits all” proposition.  The circumstances involved can influence the particular procedures deemed sufficient, and though the sequence of events at bar do not fit within the typical mode of due process, they nonetheless evince the presence of due process.  Appellant had his notice of the withholding order and opportunity to be heard about its accuracy.  Since that was enough in Harrell, it is enough here.

            We modify both the final judgment and withholding order by reducing the amount of attorney’s fees payable from $1,050 to $750 and affirm them as modified.[1]

                                                                                    Brian Quinn

                                                                                    Chief Justice

Publish.

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[1]Counsel had previously filed a motion to withdraw which we now deny as moot.