Randall Wayne Dixon v. State

Opinion

NO. 07-06-0307-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 12, 2007

______________________________

RANDALL DIXON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 290^TH DISTRICT COURT OF BEXAR COUNTY;

NO. 2004-CR-7578; HON. SHARON MCCRAE, PRESIDING _______________________________

Memorandum Opinion ________________________________

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

Randall Dixon appeals his convictions for aggravated sexual assault and indecency with a child by contending that 1) the trial court abused its discretion in refusing to admit certain evidence which denied him his constitutional right of confrontation and cross-examination, and 2) the jury charge was vague and confusing and allowed for less than a unanimous verdict. We affirm the judgment.

Issue 1 - Right of Confrontation

Approximately one year prior to the incident which was the subject of this prosecution, the victim, appellant's daughter, alleged that her school bus driver touched her breasts, which was one of the acts appellant was accused of having performed on her. Appellant sought to question the victim about the accusation but was denied the opportunity. Now, he contends that this violated his right of confrontation. This ground, however, was not mentioned at trial. Instead, appellant contended that the evidence should be admitted due to its relevance. When a defendant's objection potentially encompasses complaints under both the rules of evidence and the confrontation clause, the objection is not specific enough to preserve error if the defendant does not clearly articulate that the confrontation clause is involved. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). Given this and the fact that his objection at bar fails to comport with that raised at trial, the complaint was not preserved. See Fox v. State, 175 S.W.3d 475, 483-84 (Tex. App.-Texarkana 2005, pet. ref'd) (finding a relevancy objection to lack sufficient specificity to put the trial court on notice of the defendant's confrontation clause argument).

Additionally, the trial court may exclude relevant evidence if its value is substantially outweighed by its risk of confusion or improper prejudice. Tex. R. Evid. 403. Here, underlying appellant's complaint is the insinuation that the prior allegation was false. And, because it was purportedly false, it should have been admitted to discredit his accuser. Yet, appellant did not establish that the accusation was false. Rather, he asks us to surmise that it was since the bus driver was simply transferred elsewhere. This we choose not to do. That he was transferred to another school does not establish innocence, or, at least, a trial court could have reasonably concluded. Thus, we find no abuse of discretion in excluding the evidence. And, the issue is overruled.

Issue 2 - Jury Charge

Next, appellant complains that the jury charge was vague and confusing with respect to the application paragraphs. Allegedly, it told the jurors that if they found appellant guilty of count 1, they should next consider count 3, but that if they found appellant not guilty of count 1, they should consider count 2. Count 1 involved aggravated sexual assault by digital penetration. Count 2 involved indecency by contact with the complainant's genitals, and count 3 involved indecency by contact with the complainant's breasts. Given the language of the charge, appellant believed that the jury could have convicted him on less than a unanimous verdict. We overrule the issue.

A defendant is entitled to a unanimous verdict in felony cases. Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon 2006). In Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000), the defendant was charged with one count of indecency by either breast touching or genital touching. The court found that those allegations constituted two different offenses and by allowing use of the word "or," the jury could have reached less than a unanimous verdict, i.e. six members could have found the defendant committed the offense by breast touching and six members could have found the defendant committed the offense by genital touching. Id. at 125. The same is not true here. The acts were charged under different counts, and the instruction was intended to permit the jury to find appellant guilty of only count 1 and count 3 (count 2 being subsumed within a guilty finding on count 1) or of only count 2 and count 3, with a separate verdict on each. See Bottenfield v. State, 77 S.W.3d 349, 359 (Tex. App.-Fort Worth 2002, pet. ref'd) (noting a distinction with Francis in that the defendant in Bottonfield was charged in two separate counts with two separate and distinct offenses upon which the jury was required to reach a unanimous verdict as to each count).

Assuming arguendo that the verdict could have permitted that suggested by appellant, we find the circumstance to be harmless. The jury foreperson informed the trial court that the verdicts were unanimous. So too were the jury members individually polled regarding whether those were their verdicts. Each responded that it was. Therefore, nothing of record suggests that the jury's verdict on each count was anything other than unanimous despite appellant's contentions.

We also note that appellant's defense was that none of the allegations happened, and thus the jury was required to make an all-or-nothing decision for each count. See Martinez v. State, No. 03-05-0345-CR, 2006 Tex. App. Lexis 4969 at *21-22 (Tex. App.-Austin June 9, 2006, pet. ref'd) (noting in its harm analysis that the defendant did not argue he was guilty of some acts alleged but not others). This too vitiated the potential for harm.

Accordingly, we affirm the judgment.

Brian Quinn

Chief Justice

Do not publish.

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NO. 07-10-0087-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

AUGUST 18, 2011

______________________________

IN THE INTEREST OF N.C. AND J.C., CHILDREN

_________________________________

FROM COUNTY COURT AT LAW NO. 2 OF RANDALL COUNTY;

NO. 6537; HONORABLE RONNIE WALKER, JUDGE[1]

_______________________________

Before CAMPBELL and PIRTLE, JJ., and BOYD, S.J.[2]

MEMORANDUM OPINION

            Appellant, Adam,[3] appeals the trial court's order terminating his parental rights to his children, N.C. and J.C.  He asserts the trial court committed reversible error in what he categorizes as a failure to make and file findings of fact and conclusions of law.  We affirm. 

Factual Background

            The two children the subject of this proceeding are N.C., a female born in August of 2002, and J.C. a female born in August of 2004.  Adam and K.L.[4] are the parents of N.C. and J.C.  Adam and K.L. separated in 2005, and Adam retained possession of the two children.  After allegations of neglectful supervision were validated against Adam by the Texas Department of Family and Protective Services (the Department), N.C. and J.C. were removed from his home and custody was awarded to his mother, D.V.[5]  At that time, Adam and K.L. were granted visitation rights. 

            In 2006, Adam became involved with C.J., who already had a male child, Q.W.J.[6]  In July of 2007, Adam and C.J. had a daughter, S.C.[7]  At that time, N.C. and J.C. were still living with D.V.  By May of 2008, Adam's three biological children, N.C., J.C. and S.C., together with Q.W.J., were all residing with D.V.  On May 23, 2008, while N.C. was at an appointment with her counselor, she made an allegation of abuse against C.J., which was allegedly perpetrated while the children were in the possession of Adam and C.J.  The counselor and D.V. reported the alleged abuse to the Department for suspected neglectful supervision and physical abuse by C.J. against both N.C. and J.C.  An investigator for Child Protective Services (CPS) was assigned to the case and interviews were conducted with the three older children and other family members.

            According to N.C., C.J. engaged in pushing her and J.C., and she would lock them out on the porch during storms as a form of punishment.  Allegations were also made that C.J. shook S.C., an infant at the time, to stop her from crying.  According to the investigator's testimony, N.C. had lice in her hair and was filthy and smelled.  She also testified that all the children suffered from lice and all but N.C. had pinkeye. 

            During the interview process, the parents offered denials, excuses, and explained part of their conduct as discipline.  After Adam and C.J. left the CPS office, they received a call that S.C. had been taken to the hospital.  Apparently, while still at the CPS office, S.C. had become unresponsive and her eyes crossed.  She was taken to the hospital with seizure-type symptoms possibly resulting from being shaken; however, tests showed no injuries.  The treating physician testified that although S.C. was not underweight or emaciated, she appeared neglected and was suffering from a vaginal yeast infection and had lice and pink eye. 

After its investigation, the Department decided it was in the best interest of the children to remove them from their home and place them with relatives.[8]  The Department initiated legal action for termination of parental rights on May 30, 2008.  Over several years, a series of family service plans were implemented with a goal of reunification.  However, on February 22, 2010,[9] after a trial before the bench, the trial court signed an order terminating Adam's parental rights to N.C. and J.C. 

Procedural Background

Pursuant to section 263.405(d) of the Texas Family Code, on March 22, 2010, the trial court held a hearing to determine whether a new trial should be granted and whether the appeal was frivolous.  Tex. Fam. Code Ann. § 263.405(d) (West 2008).  After a brief hearing, the trial court signed an order denying Adam a new trial and dismissing his notice of appeal from the termination order as frivolous.  Adam appealed the trial court's frivolous finding and denial of a free reporter's record.  By opinion dated September 29, 2010, this Court found that arguable grounds for appeal existed, reversed the trial court's frivolous finding, and ordered that a free reporter's record be provided to Adam to pursue an appeal on the merits.  See In re N.C, No. 07-10-0087-CV, 2010 Tex. App. LEXIS 7972, at *3 (Tex.App.--Amarillo Sept. 29, 2010, no pet.) (mem. op.).  After a reporter's record was provided, Adam filed his brief challenging the termination order.  This second appeal is on the merits of the termination order.

Statement of Points

            Section 263.405(b)(2) of the Family Code[10] currently provides that a statement of points on which a party intends to appeal must be filed not later than the fifteenth day after a final order is signed.[11]  Tex. Fam. Code Ann. § 263.405(b)(2) (West 2008).  Presently, an appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of points.  § 263.405(i).[12]  In his Statement of Points, Adam raises insufficiency of the evidence to support each of the four grounds found by the trial court for termination as well as the best interest finding.  He also alleges ineffective assistance of counsel and challenges the constitutionality of sections 109.002 and 263.405 of the Texas Family Code.  However, on appeal, Adam only complains of the trial court's Findings of Fact and Conclusions of Law.

Adam attacks the trial court's findings and conclusions as being nothing more than "evidentiary recitations" which are "of no value on appeal."  He maintains the document is tantamount to no findings having been filed and concludes he has suffered harm as a result.  We disagree.

Findings of Fact and Conclusions of Law

            If properly requested, the trial court must prepare and file findings of fact and conclusions of law.  Tex. R. Civ. P. 297.  A trial court's failure to make and file findings is not harmful error if "the record before the appellate court affirmatively shows that the complaining party suffered no injury."  Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (citing Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)).  The purpose for requesting written findings of fact and conclusions of law is to narrow the bases of the termination order to only a portion of the multiple claims and defenses in the case thereby reducing the number of contentions an appellant must raise on appeal.  Larry F. Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611, 614 (Tex.App.--Dallas 2003, pet. denied).  Harm may exist when the circumstances of a case require an appellant to guess the reason for the trial court's ruling, making it difficult for an appellant to properly present his case on appeal.  See In re J.I.T.P., 99 S.W.3d 841, 848-49 (Tex.App.--Houston [14th Dist.] 2003, no pet.).  See also Tex. R. App. P. 44.1(a)(2).

Discussion

            The trial court signed the termination order on February 26, 2010, and Adam timely filed his request for findings of fact and conclusions of law pursuant to Rule 296 of the Texas Rules of Civil Procedure on March 9, 2010.  Although untimely,[13] the trial court signed a lengthy and detailed document entitled "Findings of Fact and Conclusions of Law" on April 1, 2010.

            Adam's challenge leaves us with two avenues for review.  First, assuming arguendo, that the document entitled "Findings of Fact and Conclusions of Law" is tantamount to no findings being filed at all, as Adam urges, he failed to file a "Notice of Past Due Findings of Fact and Conclusions of Law" as required by Rule 297 of the Texas Rules of Civil Procedure.  Second, if we accept the trial court's Findings of Fact and Conclusions of Law, Adam's dissatisfaction with the contents of those findings and conclusions could have been remedied by filing a request pursuant to Rule 298 for additional or amended findings and conclusions.  Adam did not avail himself of either option.  Thus, he has waived the opportunity to complain on appeal about the document entitled "Findings of Fact and Conclusions of Law."  See In re J.I.T.P., 99 S.W.3d at 848 (citing Curtis v. Commission for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex.App.--Houston [14th Dist. 2000, no pet.)).[14]  Consequently, we overrule his sole issue.

Conclusion

            The trial court's order terminating Adam's parental rights to N.C. and J.C. is affirmed.

                                                                                    Patrick A. Pirtle

                                                                                          Justice

---

[1]Hon. Abe Lopez, (Ret.) sitting by assignment.  Tex. Gov't Code Ann. § 75.002(a)(3) (West 2005).

[2]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov’t Code Ann. § 75.002(a)(1) (West 2005).

[3]To protect the parents' and children's privacy, we refer to Appellant by his first name and other interested parties by their initials.  See Tex. Fam. Code Ann. § 109.002(d) (West 2008).  See also  Tex. R. App. P. 9.8(b).

[4]The mother, K.L., was appointed possessory conservator and is not appealing.

[5]The record reflects that even though D.V. had custody of two of her grandchildren, she sometimes allowed them to live with Adam rather than deal with his anger.

[6]Adam was not Q.W.J.'s natural father.  Q.W.J is one of the children the subject of a companion case, No. 07-10-0075-CV, styled In the Interest of Q.W.J. and S.C., decided this same date.  

[7]S.C. is one of the children the subject of a companion case, No. 07-10-0075-CV, styled In the Interest of Q.W.J. and S.C., decided this same date. 

[8]Placement with relatives was never fully realized.  Q.W.J. and his sister S.C. were placed with a foster family, J.C. was placed with a different foster family, and N.C. was placed in a residential treatment center to address other serious issues.

[9]During oral submission of this appeal, questions were raised on the duration of the underlying case on the docket in light of section 263.401(a) and (b) which provides for mandatory dismissal if trial on the merits is not timely commenced.  Dismissal is appropriate if a party files a motion to dismiss pursuant to section 263.402(b).  Tex. Fam. Code Ann. § 263.402(b) (West 2008).  No motion was filed in the underlying proceeding.  Thus, this Court is unable to grant relief because a party's failure to file a motion to dismiss waives the right to object to the failure to dismiss.  See id.

[10]All future references to "§" or "section" are to the Texas Family Code Annotated unless otherwise designated.

[11]Effective September 1, 2011, termination cases involving the Department are governed by the procedures for accelerated appeals in civil cases under the Texas Rules of Appellate Procedure.  Sections 263.405(b-1), (d), (e), (f), (h), and (i) have been repealed.  See Act of May 5, 2011, 82nd Leg., R.S., ch. 75, 2011 Tex. Sess. Law Serv. 348, 349.

[12]But see In re J.O.A., 262 S.W.3d 7, 21-22 (Tex.App.--Amarillo 2008), aff'd as modified and remanded, 283 S.W.3d 336 (Tex. 2009) (reviewing sufficiency of the evidence claims despite counsel's failure to file a timely statement of points when a due process violation occurs).

[13]Findings of fact and conclusions of law must be filed within twenty days after a timely request.  Tex. R. Civ. P. 297.

[14]When, as Adam alleges, no findings are filed, the trial court's judgment implies all findings of fact necessary to support it.  Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996).  When a reporter's record is filed, implied findings are not conclusive and may be challenged for legal and factual sufficiency.   BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).  However, Adam did not challenge the sufficiency of the evidence in his brief.