Joe D. Fisher v. State

Opinion

Joe D. Fisher v. State

IN THE

TENTH COURT OF APPEALS

No. 10-97-340-CR

     JOE D. FISHER,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the Criminal District Court No. 2

Tarrant County, Texas

Trial Court # 0634355D

                                                                                                                

O P I N I O N

                                                                                                                

      Appellant Fisher appeals his sentence of 30 years in the Texas Department of Criminal Justice–Institutional Division following his conviction by a jury of aggravated robbery with a deadly weapon.

      Appellant and two accomplices kicked in the back door of Andrew Bales' home and robbed him at shotgun point. Mr. Bales is a retired 67-year-old man who was sitting and reading his newspaper on the morning of September 27, 1997. The robbers demanded Mr. Bales’ money, tied him up with the phone cord and discussed shooting him. They took over $400 cash and the victim's credit cards. Mr. Bales identified Appellant at trial.

      Appellant gave statements to the police admitting his guilt. The jury found him guilty and in the punishment phase assessed him thirty years in prison.

      Appellant appeals on one point of error, seeking a reversal and remand on punishment only.

      In his point of error Appellant contends the trial court erred by admitting gang-member affiliation evidence at the punishment phase when the State failed to produce any witness who had personal knowledge that Appellant was an active gang member.

      Evidence of gang membership is admissible in a criminal prosecution punishment phase. Ybarra v. State, 775 S.W.2d 409, 411 (Tex. App.—Waco 1989, no pet.). Evidence of gang membership is relevant to show the character of the defendant and as such is admissible at the punishment phase. Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim. App. 1995).  This information alone, however, may not be enough for the jury to make an informed decision of defendant's character. It is essential for the jury to know the type of activities the gang generally engages in so it can determine if his gang membership is a positive or negative aspect of his character and subsequently as a whole. Only after the jury is provided with this information can there be a fair evaluation of how gang membership reflects on the gang-member's character. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995).

      In this case, witness Kelly Willis, a probation officer, testified that in 1994 Appellant identified himself to her as a gang member. Appellant stipulated that he had two tattoos: (1) "A-g-g Land 5" and the number "5/2"; and (2) "5" followed by an "X" followed by the numeral "2." Witness Officer Young testified that these are "Crips" gang-member tattoos and that the Fort Worth Police Department records show that Appellant is a "Crips" gang member. Appellant himself testified that he had been a "Crips" gang member but that he had disassociated himself with the "Crips" gang at the end of 1995 or early in 1996 when his son was born.

      The State offered Officer Young's testimony as a gang-member expert. His testimony was that Appellant had "Crips" tattoos; that the "Crips" gang was engaged in crime and violence; that the "Five Deuce Crips" had a bad reputation in the community; and that Appellant was listed as a gang member in the Tarrant County Police Intelligence file.

      The State did produce evidence at the punishment phase that Appellant was an actual gang member. The State further produced evidence as to the activities of gang members in general and the activities of the "Crips" gang in particular. This evidence was all admissible under the authority of Ybarra, Anderson, and Beasley, supra.

      Appellant's point is overruled. The judgment is affirmed.

 

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Cummings, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 1, 1998

Do not publish

Supreme Court in In the Interest of J.F.C., we have determined that the evidence is legally sufficient.  See In re J.F.C., 96 S.W.3d 256 (Tex. 2002).  Appellee, the Department of Family and Protective Services, points primarily to the following evidence.[1]  When K. A. was three years old, she climbed into a cabinet while Appellant was bathing and ingested eleven doses of a laxative, which caused K. A. to have blisters so that she had to be taken to a hospital emergency room.  Appellant suffers from bipolar disorder and severe depression.  She sometimes stopped taking her medication when she had custody of K. A.  When she went off of her medication, she became overwhelmed, slept much of the time, and had “uncontrollable anger,” with the result that she could not care for K. A. properly.  This continued as recently as a visitation with K. A. not long before trial, when Appellant caused a “scene” when she was off of her medication.  After K. A. was born, Appellant had lived in several places, and the longest Appellant had lived in one place was for two years.  As Appellant put it, the “effect . . . that kind of moving around has on . . . children” is “instability” and thus “[n]o sense of security”; and  K. A.’s going back and forth between Appellant’s custody and foster care was “[a]ffecting [K. A.] awful.”

      We have viewed this evidence in the light most favorable to the trial court’s finding.  Pursuant to J.F.C., we have assumed that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could have so resolved the facts.  Under this standard of review, we have determined that the court could reasonably have formed a firm belief or conviction that Appellant engaged in conduct that endangered K. A.’s physical or emotional well-being.  See Tex. Fam. Code Ann. § 161.001(1)(E), § 101.007 (Vernon 2002); J.F.C., 96 S.W.3d at 266.  Appellant’s first issue is overruled.

2.    Factual Sufficiency of the Evidence.  In Appellant’s second issue, she contends that the evidence that she committed a predicate act for termination, and the evidence that termination of her parental rights and appointment of the Department as permanent managing conservator were in the best interest of K. A., were factually insufficient.  We will overrule Appellant’s issue. 

      Applying the standard of review for the factual sufficiency of the evidence established by the Texas Supreme Court in In the Interest of C.H., we have determined that the evidence was factually sufficient.  See In re C.H., 89 S.W.3d 17 (Tex. 2002).

2.    a.    Engaging in Conduct that Endangered K. A.  First, Appellant contends that the evidence that she “place[d] the children [sic] with any person that endangered the children [sic]” was factually insufficient.  See Tex. Fam. Code Ann. § 161.001(1)(E).  Again, the trial court found that Appellant had “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child.”  See id.  Appellant again contends that she “did not place the children [sic] with any person that endangered the children [sic],” and points to evidence that after K. A. was removed from the home, Appellant complied with her family service plan.  See Tex. Fam. Code Ann. §§ 263.101 & 263.102 (Vernon 2002).  Evidence in support of the finding that Appellant endangered K. A. is as set out above.[2]

      Pursuant to C.H. and J.F.C., we have not assumed that the trial court resolved disputed facts in favor of the finding, but have given due consideration to evidence that the court could reasonably have found to be clear and convincing.  Under this standard of review, we have determined that the court could reasonably have formed a firm belief or conviction that Appellant engaged in conduct that endangered K. A.’s physical or emotional well-being.  See Tex. Fam. Code Ann. §§ 161.001(1)(E), 101.007; J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25.

2.    b.   Best Interest of K. A.  Appellant contends that it was not in K. A.’s best interest to terminate Appellant’s parental rights and appoint the Department permanent managing conservator.  Appellant complains that the guardian ad litem did not consider the Holley factors in making her recommendation to the trial court; but Appellant does not point to any evidence under those factors, or any other evidence.  See Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).  Appellee points to the following evidence.[3]  A psychologist who treated K. A. testified that K. A. wanted to stay with her foster parents.  See id. at 372 (“the desires of the child”).  The psychologist and a Department caseworker testified that K. A. needed permanency, and that she would suffer if she were returned to Appellant only to have to return thereafter to foster care.  See id. (“the emotional and physical needs of the child now and in the future,” “the emotional and physical danger to the child now and in the future”).  Besides the evidence stated above, the evidence at trial was that Appellant did not maintain stable employment or relationships with men.  See id. (“the parental abilities of the individuals seeking custody”).  Though receiving parenting training, Appellant continued, for example, to leave medicines within a child’s reach; though receiving drug counseling, Appellant continued to use marijuana.  See id. (“the programs available to assist the[] individuals” seeking custody “to promote the best interest of the child”).  K. A.’s foster parents intended to adopt her.[4]  See id. at 372 (“the plans for the child by the[] individuals or by the agency seeking custody”).  Evidence concerning the instability of Appellant’s home is set out above, and the guardian ad litem testified that K. A. was stable in the foster home.  See id. (“the stability of the home or proposed placement”).  Evidence of Appellant’s conduct endangering K. A. is set out above; there was also evidence that Appellant put her own interests ahead of her children’s.  See id. (“the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one”).

      Pursuant to C.H. and J.F.C., we have not assumed that the trial court resolved disputed facts in favor of the finding, but have given due consideration to evidence that the court could reasonably have found to be clear and convincing.  Under this standard of review, we have determined that the court could reasonably have formed a firm belief or conviction that termination of the parent-child relationship between Appellant and K. A. was in K. A.’s best interest.  See Tex. Fam. Code Ann. § 161.001(2) (Vernon 2002), § 101.007; J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25.

2.    c.    Appointment of Managing Conservator.  Appellant also argues that the evidence that she should not be appointed managing conservator was factually insufficient.  “If the court terminates the parent-child relationship with respect to both parents . . . , the court shall appoint a suitable, competent adult, the Department,” or certain other agencies “as managing conservator of the child.”  Tex. Fam. Code Ann. § 161.207(a) (Vernon 2002).  Under this evidence, the trial court would not have erred in finding that Appellant was not a “suitable, competent adult.”  See id.

      Accordingly, Appellant’s second issue is overruled.

3.    Effective Assistance of Counsel.  In Appellant’s third issue, she contends that her trial counsel failed to render the effective assistance of counsel.  Appellant contends that her trial counsel failed to object to certain evidence and failed to request findings of fact and conclusions of law.  We will overrule Appellant’s issue. 

      As to the failure to object to evidence, the record does not show the reasons for counsel’s conduct, and we do not perceive that counsel’s conduct could not have constituted legitimate trial strategy.  See In re J.W., 113 S.W.3d 605, 616 (Tex. App.—Dallas 2003, pet. denied); State ex rel. H.W., 85 S.W.3d 348, 357 (Tex. App.—Tyler 2002, no pet.); see also In re M.S., 115 S.W.3d 534, 544-46 (Tex. 2003); Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Massaro v. United States, 538 U.S. 500, 504-505 (2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 1660 (2004).  As to the failure to request findings of fact and conclusions of law, again, the record does not reflect why counsel did not request findings of fact and conclusions of law.  See Smith v. State, 17 S.W.3d 660, 662-63 (Tex. Crim. App. 2000) (motion for new trial); Oldham v. State, 977 S.W.2d 354, 360-63 (Tex. Crim. App. 1998) (motion for new trial).  In any case, Appellant cannot show prejudice from counsel’s failure to request findings of fact and conclusions of law.  The trial court found in its judgment that Appellant committed one predicate act for termination and that termination was in K. A.’s best interest.  Appellant has challenged the sufficiency of the evidence of both of those findings based on the reporter’s record, and we have addressed Appellant’s challenges.  Appellant’s third issue is overruled.

      Having overruled Appellant’s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

(Justice Vance concurs with a note.  The majority says it has considered “evidence that the court could have reasonably found to be clear and convincing.”  We should make clear that in a civil factual sufficiency review where the burden of proof at trial was by clear and convincing evidence, we consider all the evidence in a neutral light.)

Opinion delivered and filed September 29, 2004

Affirmed

[CV06]

 

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[1]  Appellee also puts great emphasis on evidence of events that took place after K. A. was last removed from Appellant’s home.  If this evidence is probative on Appellant’s endangerment of the child, it is markedly less probative than the evidence noted above.  See In re J.B., 93 S.W.3d 609, 617 (Tex. App.—Waco 2002, pet. denied).

[2]  Appellant argues that evidence of her mental disorder and evidence of events from K. A.’s early childhood are not probative.  We cannot agree.  The evidence was that when Appellant failed to take her medications for her mental disorders, she endangered K. A.; and that the instability in Appellant’s home continued from K. A.’s birth at least until the last time K. A. was removed from Appellant’s home.  The trial court could reasonably have found this evidence to be clear and convincing.

[3]  Appellant argues that the trial court should not have considered evidence on K. A.’s best interest unless the court made a finding on a predicate act.  We cannot agree; but even if this were so, the court did make such a finding, and so Appellant’s argument is moot.

[4]  Although Appellant contends that the trial court erred in considering K. A.’s potential for adoption, adoptability is a proper consideration.  See Holley, 544 S.W.2d at 372.