Pamela Babcock King v. Texas Department of Protective and Regulatory Services

• Court: Court of Appeals of Texas
• Decided: July 2, 2004
• Docket: 08-03-00100-CV
• Status: Published

Opinion

Criminal Case Template

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PAMELA BABCOCK KING, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.

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No. 08-03-00100-CV Appeal from the 318th Judicial District Court of Midland County, Texas (TC# FM 38,886)

M E M O R A N D U M O P I N I O N

This is an appeal from the involuntary termination of parental rights under Chapter 161.001 of the Texas Family Code. Tex. Fam. Code Ann. § 161.001 (Vernon 2002). For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

Appellant, Pamela Babcock King, is one of six children of Sharon Babcock ("Babcock") and Philip Babcock. King has six children, four of whom were the subject of this termination suit. R.K. was born October 17, 1990 and was twelve years old at the time of trial. K.K. was born March 17, 1992 and was ten years old at the time of trial. The twin girls, J.J.S.B. and A.A.S.B., were born August 18, 1998 and were four years old at the time of trial. The four oldest children were the subjects of the termination suit. J.B., King's fifth child, was born January 7, 2000 and was almost three years old at the time of trial. King's sixth child was born seven months before trial and was given up for adoption.

King married Leland King when she was sixteen years old. He was twenty-seven at the time they were married. Leland is the father of R.K. and K.K. She does not know who the father of the twins is. Earnest Wompler is the father of J.B. King testified that Gary Bennett, her "boyfriend at the time", is the father of her sixth child.

Appellee, the Texas Department of Protective and Regulatory Services (the "Department"), became involved with the Babcock family in 1979 when King was eight years old. The Department investigated numerous allegations regarding the Babcock household over the next twenty years.

King and Leland were married for seven years. During that time, Leland did not keep steady employment and when he was not working, they lived with Leland's sister. When King left Leland, she was twenty-three, R.K. was three and K.K. was almost one. King moved into her parent's home where four of King's younger siblings were still living. King then moved out of the home and left R.K. and K.K. in Babcock's care. King admitted moving in and out of the Babcock home when things did not work out with her current boyfriend. She lived in Maryland in 2000-2001 and also in Missouri at some point. King admitted that while the children were living in the Babcock house, she "would just come back and forth into town."

King admitted smoking marijuana and using other drugs. She admitted using drugs during her pregnancies with K.K. and the twins. While pregnant with K.K., King told her obstetrician gynecologist that she had smoked marijuana the previous day and night, January 30, 1992. On February 2, 1992, King tested positive for marijuana at Midland Memorial Hospital. King took another drug screen on March 17, 1992, the day K.K. was born, and again tested positive for marijuana. When questioned about her marijuana use, King said that she did not believe marijuana was a drug; she considered it to be an herb. She explained that she was quoting Leland and that she "just believed anything he said."

The twins, J.J.S.B. and A.A.S.B., were born premature at seven months. J.J.S.B. had a heart murmur and was in a lot of distress when she was born. A.A.S.B., the first-born twin, tested positive for marijuana at birth. The twins were hospitalized for some time and on one visit, King showed up in an inebriated state and reeking of alcohol. Her probation officer was notified and King was picked up and taken home. King admitted that she was a "major alcoholic" at this point in her life.

King also admitted that she had emotional problems, "a lot of depression" starting in 1993. King went to several "mental hospitals" and was admitted five times in 1993. Her mental health problems continued into 1994 and she was again admitted to mental hospitals in 1996. King admitted to being suicidal twice in her life. A progress note from Midland Memorial Hospital in 1998 concludes that King "has a personality disorder, manic depressant." King would visit the twins for breast-feeding and began "demonstrating more and more bizarre behavior." The hospital decided that King should no longer be allowed to breast-feed because there was a belief that she was endangering the twins by removing them from the unit.

Dr. David Koch, a clinical psychologist, conducted psychological evaluations of King on February 28, 2000 and February 6, 2002. Dr. Koch testified that King "exhibited instability in her relationships over the years, poor decision-making, dependence on others that led to abusive kinds of relationships, and inability to really effectively establish or maintain an adult type of identity." He also noted that she was "very unstable" and was involved in "abusive types of relationships in the marital area as well." He stated that she had "difficulties managing herself" and made "poor choices in her relations with males." Dr. Koch concluded that King was not the type of individual who could provide a safe and nurturing environment for children.

In January of 1996, King was convicted of misdemeanor possession of marijuana and spent ten days in jail. On January 18, 1996, King was arrested for failing to identify to a police officer and spent five days in jail. She was also arrested for unauthorized use of a motor vehicle in 1996. On March 20, 1996, King was again arrested for failing to identify to a police officer and spent three days in jail. On June 3, 1996, King was arrested for possession of drug paraphernalia. On October 31, 1997, King was arrested for public intoxication. On June 4, 1998, King was arrested for possession of marijuana and for possession of drug paraphernalia and spent fifteen days in jail. On July 10, 1998, King was arrested for felony bond forfeiture for failing to appear at a court date on the unauthorized use of a motor vehicle charge. King also had a misdemeanor conviction for hindering apprehension. King was on probation for felony bond jumping at the time of trial.

King stated at trial that she could not read, did not have a driver's license, and had never been employed. At the time of trial, she lived with her father in Odessa and received $550 a month in Social Security Disability Income. King's depression is listed as her disability.

King had left Midland and was supposedly living in Rankin when her four children were first removed from Babcock's house in April of 2000. When the children were placed in the Department's custody, King signed family service plans that set out tasks she needed to accomplish in order to be reunited with her children. At some point though, King left Midland and was not there when the children were subsequently placed back in the Babcock household on December 4, 2000. The Department removed the children from Babcock's house again in December of 2001 and this removal led to the Department seeking termination of King's parental rights. The suit was tried to a jury. The charge submitted to the jury instructed that, to terminate King's parental rights, the jury would have to find by clear and convincing evidence that at least one of the events set out in the four grounds detailed in the charge occurred and that termination of King's parental rights would be in the best interest of the children. The jury terminated King's rights to R.K., K.K., J.J.S.B. and A.A.S.B. This appeal follows.

II. DISCUSSION

In nine issues, Appellant attacks the legal and factual sufficiency of the evidence to support the termination of her parental rights and asserts that she received ineffective assistance of counsel.

A. Burden of Proof in Termination Proceedings

A parent's rights to "the companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982); accord Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The United States Supreme Court, in discussing the constitutional stature of parental rights, states, "[T]he interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). Nonetheless, while parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right. Id.

In proceedings to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the Department must establish one or more of the acts or omissions enumerated under subsection (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2002); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.--Waco 2002, pet. denied). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Texas Dep't of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Because of the elevated status of parental rights, the quantum of proof required in a termination proceeding is elevated from the preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 746, 102 S.Ct. at 1391; see also Tex. Fam. Code Ann. § 161.001.

Clear and convincing evidence is "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); C.H., 89 S.W.3d at 25. This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard in criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); In re D.T., 34 S.W.3d 625, 630 (Tex. App.--Fort Worth 2001, pet. denied) (op. on reh'g). While the proof must be more than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 570. Termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent. Holick, 685 S.W.2d at 20-21; In re A.V., 849 S.W.2d 393, 400 (Tex. App.--Fort Worth 1993, no writ).

In the instant case, the Department sought to have King's parental rights terminated under Section 161.001(1)(C), (D) and (E) and Section 161.003(a) of the Texas Family Code. Tex. Fam. Code. Ann. §§ 161.001(1)(C), (D) and (E), 161.003(a) (Vernon 2002). The relevant subsections under Section 161.001 state that the court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has:

(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

Tex. Fam. Code. Ann. § 161.001(1)(C), (D) and (E). Section 161.003(a) allows a court to order termination of parental rights if it finds that:

(1) the parent has a mental or emotional illness or a mental deficiency that renders the parent unable to provide for the physical, emotional, and mental needs of the child;

(2) the illness or deficiency, in all reasonable probability, proved by clear and convincing evidence, will continue to render the parent unable to provide for the child's needs until the 18th birthday of the child;

(3) the department has been the temporary or sole managing conservator of the child of the parent for at least six months preceding the date of the hearing on the termination held in accordance with Subsection (c);

(4) the department has made reasonable efforts to return the child to the parent; and

(5) the termination is in the best interest of the child.

Tex. Fam. Code Ann. § 161.003(a)(Vernon 2002). King does not challenge the jury's finding that termination of her parental rights is in the best interest of the children. In Issues No. One through Four, King challenges the legal sufficiency of the jury's finding of termination under Section 161.001(1)(C), (D) and (E) and Section 161.003(a). In Issues No. Five through Eight, King challenges the factual sufficiency of the jury's finding of termination under Section 161.001(1)(C), (D) and (E) and Section 161.003(a). In Issue No. Nine, King asserts that the failure of her trial counsel to object to the charge's submission of the termination of King's parental rights by broad form question deprived King of her statutory right to effective assistance of counsel.

B. Legal and Factual Sufficiency

The Texas Supreme Court recently clarified the appellate standards of review to be applied to legal and factual sufficiency of the evidence challenges in light of the clear and convincing evidence burden of proof in termination proceedings. In re J.F.C., 96 S.W.3d at 264-68 (discussing legal sufficiency review); In re C.H., 89 S.W.3d at 25 (discussing factual sufficiency review). Because termination findings must be based upon clear and convincing evidence, not simply a preponderance of the evidence, the supreme court has held that the traditional legal and factual standards of review are inadequate. J.F.C., 96 S.W.3d at 265; C.H., 89 S.W.3d at 25. Instead, both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof. J.F.C., 96 S.W.3d at 265-66; C.H., 89 S.W.3d at 25. With respect to a legal sufficiency point, we "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." J.F.C., 96 S.W.3d at 266. In determining a factual sufficiency point, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing and then determine whether, based on the entire record, a fact finder could reasonably form a firm conviction or belief that the parent violated one of the provisions of section 161.001 and that the termination of his or her parental rights would be in the child's best interest. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 25.

1. Waiver

The Department contends that King has waived Issues No. Three and Seven by inadequate briefing. Specifically, the Department notes that King does not even mention the "endangering conduct" ground in the body of her argument and wholly fails to cite authority to support this ground. After a thorough review of King's brief, we note that in addressing the legal sufficiency issues together, she only provides argument for Section 161.001(C) and (D) and Section 161.003(a), and in addressing the factual sufficiency issues together, she merely recites background facts about her family and children and argues that "no child, through counsel[,] asked to be terminated." The only cases cited under the factual sufficiency argument are Santosky v. Kramer, 455 U.S. at 758-59 (parent's rights to "the companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right.") and State v. Addington, 588 S.W.2d 569, 570 (adopting the "clear and convincing evidence" standard of proof.).

Rule 38.1(h) of the Texas Rules of Appellate Procedure provides that a brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). It is well-established that failure to cite authority or provide substantive analysis waives an issue on appeal. See Federal Sign v. Tex. S. Univ., 951 S.W.2d 401, 410 (Tex. 1997); Sunnyside Feedyard, L.C. v. Metro. Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.--Amarillo 2003, no pet.); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.--Houston [14th Dist.] 2002, no pet.); Texas Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 801 n.6 (Tex. App.--Corpus Christi 2002, pet. denied). This Court has also held that the failure to cite authority in support of point of error waives complaint. See Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex. App.--El Paso 1997, no writ). Moreover, the Supreme Court has held that error may be waived due to inadequate briefing. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). Rule 38 requires King to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex. App.--Amarillo 1998, no pet.). This is not done by merely uttering brief conclusory statements, unsupported by legal citations. Id. By presenting such attenuated, unsupported argument, King waives her complaints. See id.

King offers no legal analysis and fails to cite any authority supporting her legal insufficiency argument under Section 161.001(E). King also offers no legal analysis and fails to cite any authority supporting the factual sufficiency issues. Accordingly, we find that King has waived Issues No. Three, Five, Six, Seven and Eight. These Issues are overruled.

2. Legal Sufficiency Challenges

In Issues No. One, Two and Four, King challenges the legal sufficiency of the jury's finding of termination under Section 161.001(1)(C) and (D) and Section 161.003(a). The jury had to determine whether King (1) voluntarily left R.K, K.K., J.J.S.B. and A.A.S.B. in the possession of another without providing adequate support of the children and remained away for a period of at least six months, or (2) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the physical or emotional well-being of R.K, K.K., J.J.S.B. and A.A.S.B. See Tex. Fam. Code Ann. § 161.001(1)(C) and (D). The jury also could have terminated King's rights under Section 161.003(a). The only prong King challenges is the first one, "that she was suffering from a mental illness or psychological disorder to the degree that she was incapable of caring for her four (4) children."

As noted previously, King does not challenge the trial court's finding that termination was in the best interest of the children. Therefore, we will affirm if legally sufficient evidence supports any of the grounds upon which her rights were terminated. If multiple grounds for termination are alleged and the trial court submitted the termination issue using a broad-form question asking the jury whether the parent-child relationship should be terminated, the jury's finding will be upheld on any ground supporting the finding. Texas Dep't of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on reh'g); In re P.R., 994 S.W.2d 411, 415 (Tex. App.--Fort Worth 1999, pet. dism'd w.o.j.), disapproved on other grounds by J.F.C., 96 S.W.3d 256. A finding of only one ground alleged under Section 161.001(1) is sufficient to support a judgment of termination. In re A.R.R., 61 S.W.3d 691, 698 (Tex. App.--Fort Worth 2001, pet. denied), disapproved on other grounds by In re A.V., 46 Tex. Sup. Ct. J. 938, 113 S.W.3d 355 (2003) and In re C.H., 89 S.W.3d 17 (Tex. 2002). Thus, to be successful on appeal, the Appellant must establish that the jury's findings on all of the State's pleaded grounds are unsupported by the evidence. In re B.B., 971 S.W.2d 160, 163 (Tex. App.--Beaumont 1998, pet. denied), disapproved on other grounds by C.H., 89 S.W.3d 17; Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.--Fort Worth 1984, writ ref'd n.r.e.).

In the case at bar, multiple grounds for termination were alleged and the trial court submitted broad-form question asking the jury whether the parent-child relationship should be terminated. Thus, the jury's finding will be upheld on any ground supporting the finding. E.B., 802 S.W.2d at 649. The evidence reflected that King allowed the children to be exposed to domestic violence. Allowing a child to be exposed to domestic violence is sufficient evidence to support termination of parental rights under the endangerment ground. In the Interest of J.R. and C.T., 991 S.W.2d 318, 322 (Tex. App.-- Fort Worth 1999, no pet.); In the Interest of J.L.S., 793 S.W.2d 79, 82 (Tex. App.-- Corpus Christi 1990, no writ). Leland abused King in front of R.K. and K.K. King trained R.K. to take K.K. into the closet whenever a fight would break out between she and Leland. Leland also abused both R.K. and K.K. and King admitted that she never told anyone about the abuse. Babcock testified that she began to suspect Leland was sexually abusing R.K. when R.K. was almost three years old and that she informed King of her suspicions. King stayed with Leland despite her mother's suspicions, but testified that she now believed Leland had sexually abused R.K.

Moreover, the evidence established that King was a drug user. Endangerment may include evidence of drug addiction and its effect on a parent's life and her ability to parent. In the Interest of U.P., 105 S.W.3d 222, 234 (Tex. App.-- Houston [14th Dist.] 2003, no pet.). The use of drugs during pregnancy is conduct that endangers the physical and emotional well-being of the child. In the Interest of W.A.B., 979 S.W.2d 804, 807-808 (Tex. App.-- Houston [14th Dist.] 1998, pet. denied); Edwards v. Texas Dep't of Protective and Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.-- El Paso 1997, no writ). King admitted smoking marijuana and using other drugs. She admitted using drugs during her pregnancies with K.K. and the twins. While pregnant with K.K., King told her doctor that she had smoked marijuana the previous day and night, January 30, 1992. On February 2, 1992, King tested positive for marijuana at Midland Memorial Hospital. King took another drug screen on March 17, 1992, the day K.K. was born, and again tested positive for marijuana. A.A.S.B., the first-born twin, tested positive for marijuana at birth.

We have viewed the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. We find there is clear and convincing evidence to establish that King knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being. Having found sufficient evidence to support this ground for termination, we need not address the remaining statutory grounds. Issues No. One, Two, and Four are overruled.

C. Ineffective Assistance of Counsel

The Texas Supreme Court recently held that the statutory right to counsel in parental-rights termination cases embodies the right to effective counsel. In re M.S., 115 S.W.3d 534 (Tex. 2003). The court noted that "[i]t would seem a useless gesture on the one hand to recognize the importance of counsel in termination proceedings, as evidenced by the statutory right to appointed counsel, and, on the other hand, not require that counsel perform effectively." Id. at 544 (citing In re K.L., 91 S.W.3d 1, 13 (Tex. App.--Fort Worth 2002, no pet.)). The court also held that the appropriate standard for determining whether counsel is effective should be the same as the standard applied in criminal cases--the standard set forth by the United States Supreme Court in Strickland v. Washington. Id. at 545; Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In Strickland, the United States Supreme Court said:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Under Strickland, the defendant, to establish an ineffective assistance claim, must successfully show both prongs of the inquiry.

With respect to whether counsel's performance in a particular case is deficient, we must take into account all of the circumstances surrounding the case, and must primarily focus on whether counsel performed in a "reasonably effective" manner. Id. The Texas Court of Criminal Appeals explained that counsel's performance falls below acceptable levels of performance when the "representation is so grossly deficient as to render proceedings fundamentally unfair . . . ." Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim. App. 1983). In this process, we must give great deference to counsel's performance, indulging "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," including the possibility that counsel's actions are strategic. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. It is only when "the conduct was so outrageous that no competent attorney would have engaged in it," that the challenged conduct will constitute ineffective assistance. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In Issue No. Nine, King asserts that the failure of her trial counsel to object to the charge's submission of the termination of King's parental rights by broad-form question deprived King of her statutory right to effective assistance of counsel.

1. Broad-Form Submission

In all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions. Tex. R. Civ. P. 277. The charge in parental rights cases should be the same as in other civil cases. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). The controlling question is whether the parent-child relationship between the parent and child should be terminated, not what specific ground or grounds under the controlling statute the jury relied on to answer affirmatively the questions posed. Id. In so holding, the Supreme Court approved both the instruction, which disjunctively submitted the alternative grounds for termination, as well as the broad-form submission of the controlling issue: whether the parent-child relationship should be terminated. Id.; In re M.C.M., 57 S.W.3d 27, 31 (Tex. App.--Houston [1st Dist.] 2001, pet. denied); see In re J.M.C.A., 31 S.W.3d 692, 699 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (not necessary for trial court to submit separate questions in parental termination case).

We are aware of a recent trend among practitioners to question the continued viability of E.B. in the wake of Crown Life Insurance Co. v. Casteel, in which the Supreme Court held that it is harmful error to submit to a jury a single broad form question that commingles valid and invalid liability theories. Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000). However, the Supreme Court has answered the question as it relates to ineffective assistance of counsel in a termination proceeding, i.e., that counsel was ineffective for failure to object to a broad form submission. In re J.F.C., 96 S.W.3d 256 (Tex. 2002). There, the court concluded that in light of its decision in E.B., it could not be said that counsel's failure to object fell outside the wide range of professionally competent assistance. Id. at 283. Although counsel could have raised the issue in the trial court so as to "ultimately implore this Court to reconsider E.B., it is not outside the bounds of competency to follow a decision of this court." Id. Given that J.F.C. postdates Casteel, we are constrained to agree. Thus, we conclude that the failure of King's trial counsel to object to the broad-form submission did not deprive King of her statutory right to effective assistance of counsel. Issue No. Nine is overruled.

Having overruled all issues on appeal, we affirm the judgment of the trial court.

July 2, 2004

RICHARD BARAJAS, Chief Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.