author: GEORGE C. HANKS, JR., Justice. TERRY JENNINGS, JIM SHARP, Justice,

text:
    Frederick Dewaynne WALKER, Appellant v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.
    No. 01-07-00867-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 18, 2009.
    Opinion Dissenting to Denial of En Banc Consideration Oct. 9, 2009.

      William B. Connolly, Connolly & Shire-man, LLP, Houston, TX, for Appellant.
    Sandra D. Hachem, Senior Assistant County Attorney, Houston, TX, for Appel-lee.
    Panel consists of Justices JENNINGS, HANKS, and BLAND.
   OPINION

GEORGE C. HANKS, JR., Justice.

After a bench trial, the trial court terminated the parental rights of appellant, Fredrick Dewaynne Walker (“Walker”), to his minor son, W.J.W., and named the Texas Department of Family and Protective Services (“DFPS”) sole managing conservator of W.J.W. See Tex. Fam.Code Ann. § 161.001 (Vernon 2008). On appeal, Walker challenges whether the evidence was legally and factually sufficient to support the termination of his parental rights and whether he was denied the effective assistance of trial counsel. We affirm.

Background

On July 19, 2006, Walker’s wife, Laures-sa, gave birth to W.J.W. in Houston. Because both W.J.W. and Lauressa tested positive for cocaine at the time of birth, the hospital made a referral to DFPS. Lauressa admitted to hospital staff that she had used cocaine as recently as three days before W.J.W. was born, and the staff reported to DFPS that Walker had appeared to be intoxicated when he arrived at the hospital. Neither Walker nor Lauressa had any identification, money, or paperwork on them. When questioned by the DFPS caseworker at the hospital, Walker admitted that he had used drugs in the past and that he and Lauressa had three older children who were already in CPS custody in Florida. The DFPS caseworker also noted that Walker and Lauressa were homeless.

Based on evidence that (1) both Laures-sa and W.J.W. tested positive for cocaine at WJ.W.’s birth, (2) the parents were homeless, and (3) both parents had previous criminal, drug, and CPS histories, DFPS requested to be named W.J.W.’s sole managing conservator. W.J.W. was then placed in a foster home. On August 3, 2006, the court signed an order requiring Walker to comply with each requirement set out in the DFPS service plan during the pendency of the suit, pursuant to section 263.106 of the Texas Family Code.

On January 9, 2007, Walker signed a Family Service Plan requiring him to attend parenting classes, to submit to random drug tests, to receive drug treatment, to maintain a stable environment, to maintain contact with W.J.W. on a weekly basis, to maintain suitable housing, to refrain from criminal activity, and to follow the recommendations of service providers. A DFPS caseworker explained the plan to Walker and told him that his parental rights to W.J.W. could be terminated if he did not comply. Walker stated to the worker that he understood the plan and that he would enroll in a rehabilitation program.

In April of 2007, DFPS filed a permanency progress report with the court, stating that Walker had not completed any services suggested by DFPS and had not made progress toward mitigating his parental termination action. The report also indicated WJ.W.’s current placement was a safe, stable, and nurturing environment and recommended that the parental rights of Walker and Lauressa be terminated. About a month after the April permanency progress report was filed, Walker tested positive for cocaine and marijuana. At trial, W.J.W.’s caseworker testified that Walker had not visited W.J.W. since the day he was born.

During his testimony, Walker stated that he was currently living with his sister in Houston and that she had agreed to let W. J.W. live at her residence, too, if Walker was allowed to keep custody. When asked why DFPS had not done a home study on his sister’s house, Walker stated, “she didn’t — they—it was like she told me that it would be best for me just to relinquish my rights.” He also testified that he had been clean for eight months before trial, although he had tested positive for marijuana and cocaine only two months earlier. When asked whether he knew that his wife had been using cocaine before W.J.W. was born, Walker gave contradictory answers.

At the close of trial, the court signed a judgment terminating Walker’s parent-child relationship with W.J.W. and appointing DFPS as WJ.W.’s sole managing conservator.

Sufficiency of the Evidence

In his first three issues, Walker argues that the evidence is both legally and factually insufficient to support the trial court’s termination of his parental rights pursuant to Texas Family Code Section 161.001(1)(E), Section 161.001(1X0), and Section 161.001(2). See Tex. Fam.Code Ann. § 161.001 (Vernon 2008).

Standard of Review

Because parental-rights termination “is complete, final, irrevocable, and divests for all time that natural right ...[,] the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent’s rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982)). Clear and convincing evidence “means 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 (Vernon 2008). This heightened burden of proof results in a heightened standard of review.

When determining legal sufficiency, we review “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.” In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). To give appropriate deference to the factfinder’s conclusions, we must assume that the factfin-der resolved disputed facts in favor of its finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. This does not mean that we must disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. Therefore, in conducting a legal-sufficiency review in a parental-rights-termination case, we must consider all of the evidence, not only that which favors the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.2005).

In determining factual sufficiency under the clear-and-convincing burden, we must consider whether the evidence is sufficient to produce a firm belief or conviction in the mind of the factfinder as to the truth of the allegation sought to be established. In re C.H., 89 S.W.3d 17, 25-26 (Tex.2002). We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. “If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id.

The natural rights that exist between parents and their children are of constitutional dimension. Holick, 685 S.W.2d at 20. Therefore, termination proceedings should be strictly scrutinized, and the involuntary termination statutes should be strictly construed in favor of the parent. Id. at 20-21. However, “[j]ust 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.” C.H., 89 S.W.3d at 26. For parental rights to be involuntarily terminated, it must be found by clear and convincing evidence that the parent engaged in conduct set out in subsection 161.001(1) and that termination would be in the child’s best interest pursuant to subsection 161.001(2). Tex. Fam.Code Ann. § 161.001 (Vernon 2008). Both elements must be established, and termination may not be based solely on the factfinder’s determination of best interest of the child. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); In re L.M., 104 S.W.3d 642, 646 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

Grounds for Termination

In terminating Walker’s parental relationship with W.J.W., the trial court expressly found:

• that Walker engaged in conduct or knowingly placed the child at issue in this suit with persons who engaged in conduct which endangers the child’s physical or emotional well-being, pursuant to [Section] 161.001(1)(E);
• that Walker failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the child ... pursuant to Section 161.001(1X0); and
• that termination of parental rights of ... Walker ... is in the best interest of the child.

In his first three issues, Walker challenges the legal and factual sufficiency of these findings.

A. Endangerment

Legal Sufficiency

We begin by considering the legal sufficiency of the trial court’s section 161.001(1)(E) finding. To terminate a parent-child relationship based on section 161.001(1)(E), the trial court must find by clear and convincing evidence that the parent “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)(E). “To endanger” means to expose a child to loss or injury or to jeopardize a child’s emotional or physical health. Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (citing Tex. Dep’t of Human Sens. v. Boyd, 727 S.W.2d at 533). The term means “more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment.” Boyd, 727 S.W.2d at 533. However, danger to a child need not be established as an independent proposition and may be inferred from parental misconduct even if the conduct is not directed at the child and the child suffers no actual injury. Id. The relevant inquiry is whether evidence exists that a parental course of conduct endangered the child’s physical or emotional well-being. In re R.D., 955 S.W.2d 364, 368 (Tex.App.-San Antonio 1997, pet. denied). The conduct does not have to occur in the presence of the child. Director of Dallas Cty. Child Protective Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex.App.-Dallas 1992, no writ). And the conduct may occur before the child’s birth and both before and after the child has been removed by the Department. See In re S.M.L.D., 150 S.W.3d 754, 757-58 (Tex.App.-Amarillo 2004, no pet.); Avery v. State, 963 S.W.2d 550, 553 (Tex.App.-Houston [1st Dist.] 1997, no writ).

Mere imprisonment will not, standing alone, constitute engaging in conduct that endangers the physical or emotional well-being of a child. See Boyd, 727 S.W.2d at 533. However, when all of the evidence, including imprisonment, shows a course of conduct that has the effect of endangering the physical or emotional well-being of the child, a finding under section 161.001(1)(E) is supportable. Id. at 533-34. If the imprisonment of the parent displays a voluntary, deliberate and conscious course of conduct, it qualifies as conduct that endangers the child. See Avery, 963 S.W.2d at 553.

The record reflects Walker’s incarceration on multiple occasions both before and after W.J.W.’s birth: driving while intoxicated (30 days); criminal assault against his wife (90 days); criminal assault against his mother-in-law (20 days); delivery of marijuana (90 days); and interfering with public duties (5 days). Even though three of these offenses occurred before W.J.W. was born, they can still be considered as part of a voluntary, deliberate, and conscious course of conduct that had the effect of endangering W.J.W. See In re R.W., 129 S.W.3d 732, 738 (Tex.App.-Fort Worth 2004, pet. denied); Harris v. Herbers, 838 S.W.2d 938, 942-43 (Tex.App.-Houston [1st Dist.] 1992, no writ). Conduct that routinely subjects a child to the probability that the child will be left alone because a parent is jailed endangers both the physical and emotional well-being of the child. See In re S.D., 980 S.W.2d 758, 763 (Tex.App.-San Antonio 1998, pet. denied).

Walker was arrested and jailed twice for criminal assault against his wife and his mother-in-law. Abusive and violent criminal conduct by a parent can produce an environment that endangers the well-being of a child. In re B.R., 822 S.W.2d 103, 106 (Tex.App.-Tyler 1991, writ denied). Evidence as to how a parent has treated another child or spouse is relevant regarding whether a course of conduct under section 161.001(1)(E) has been established. In re D.T., 34 S.W.3d 625, 636-37 (Tex.App.-Fort Worth 2000, pet. denied). Evidence that a person has engaged in abusive conduct in the past permits an inference that the person will continue violent behavior in the future. Schabanr-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex.App.-Fort Worth 2007, no pet.); In re M.G.M., 163 S.W.3d 191, 202 (Tex.App.-Beaumont 2005, no pet.).

The trial court heard evidence that Walker had tested positive for cocaine and marijuana after he had signed a Child Protective Services Family Service Plan and therefore knew that his parental rights were in jeopardy and that Walker had a prior history of drug use that included an arrest for delivery of marijuana. Because it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug- use may support termination under section 161.001(1)(E). See Vasquez v. Tex. Dep’t of Protective & Regulatory Seros., 190 S.W.3d 189, 195-96 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (terminating parental rights despite there being no direct evidence of parent’s continued drug use actually injuring child). Evidence of narcotics use and its effect on a parent’s life and ability to parent may establish that the parent has engaged in an endangering course of conduct. See Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 98 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing In re R.W., 129 S.W.3d at 739).

The evidence presented with respect to Walker’s pattern of crime, imprisonment, drug use, and violence against family members demonstrates a deliberate course of conduct from which a reasonable trier of fact could have found that Walker endangered WJ.W.’s emotional and physical well-being. When viewed in the light most favorable to the judgment, we hold that the evidence was legally sufficient to support the trial court’s finding that Walker engaged in a deliberate course of conduct that endangered W.J.W. under section 161.001(1)(E).

Factual Sufficiency

In conducting our factual-sufficiency review, we must ascertain what disputed evidence, if any, exists as to the conduct in question. In re J.W., 152 S.W.3d 200, 206 (Tex.App.-Dallas 2004, pet. denied). Neither Walker’s history of imprisonment nor his history of assault against family members is disputed. The only facts that Walker disputes relate to his illegal drug use. During trial, Walker testified that he had been clean for the previous eight months, even though he had tested positive for cocaine and marijuana only a few months earlier. A rational trier of fact could have chosen to believe the positive drug test results over Walker’s testimony, viewed the evidence as a whole, and reasonably formed a firm belief or conviction that Walker had engaged in conduct that endangered the physical or emotional well-being of W.J.W. Thus, the evidence is factually sufficient to support the trial court’s finding on the section 161.001(1)(E) ground. We overrule Walker’s first issue.

B. Failure to Comply with Court Order

Because we conclude that the evidence is both legally and factually sufficient to support the trial court’s finding under section 161.001(1)(E), and because a finding as to any one of the acts or omissions enumerated in section 161.001(1) is sufficient to support termination, we need not address Walker’s second issue challenging the trial court’s findings under section 161.001(l)(O). However, we must still determine whether the evidence was sufficient to support the trial court’s finding that termination was in W.J.W.’s best interest, pursuant to section 161.001(2).

C. Best Interest of the Child

In his third issue, Walker challenges the legal and factual sufficiency of the trial court’s finding, pursuant to Section 161.002(2), that termination was in W.J.W.’s best interest. See Tex. Fam.Code Ann. § 161.001(2) (Vernon Supp. 2008).

A strong presumption exists that a child’s best interests are served by maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.App.Houston [1st Dist.] 2003, no pet.). The same evidence of acts or omissions used to establish grounds for termination under section 161.001(1) may be probative in determining the best interests of the child. In re C.H., 89 S.W.3d 17, 28 (Tex.2002); L.M., 104 S.W.3d at 647. In Holley v. Adams, the Texas Supreme Court provided a nonexclusive list of factors that the trier of fact in a termination case may use in determining the best interest of the child. 544 S.W.2d 367, 371-72 (Tex.1976). These factors include (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 by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. These factors are not exhaustive, and there is no requirement that DFPS prove all factors as a condition precedent to parental termination. In re C.H., 89 S.W.Bd at 27; Adams v. Tex. Dep’t of Family & Protective Servs., 286 S.W.3d 271, 280 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Termination of the parent-child relationship is not justified when the evidence shows merely that a parent’s failure to provide a more desirable degree of care and support of the child is due solely to misfortune or the lack of intelligence or training, and not to indifference or malice. Clark v. Dearen, 715 S.W.2d 364, 367 (Tex.App.-Houston [1st Dist.] 1986, no writ).

The desires of the child

At trial, W.J.W. was only one year old and, thus, too young to express his desires. However, there is no reason to believe that W.J.W. has any conscious knowledge of Walker, as he has not seen W.J.W. since the day that he was born.

The child’s physical and emotional needs, now and in the future

The goal of establishing a stable, permanent home for a child is a compelling state interest. In re C.E.K., 214 S.W.3d 492, 498 (Tex.App.-Dallas 2006, no pet.). Walker has not seen W.J.W. since the day that the child was born. Walker testified that he has not been employed since May 2005 (more than a year before W.J.W. was born). Walker also has not had stable housing at any point during W.J.W.’s life, and he has failed to comply with any part of the Family Service Plan implemented by DFPS. At the time of W.J.W.’s birth, both Walker and Lauressa were homeless, intoxicated, and had no identification, money, or paperwork with them — indications that they were not prepared to act as parents to an infant. Walker’s inability to provide a stable home, to remain gainfully employed, or to comply with his court-ordered service plan, taken together with Walker’s drug use and criminal activity since W.J.W. was born, supports the trial court’s finding that Walker has not been and would not be able to provide for WJ.W.’s emotional or physical needs in any type of permanent way.

The emotional and physical danger to the child, now and in the future

The evidence regarding endangerment, discussed in support of the trial court’s finding under section 161.001(1)(E) above, is also probative of a finding as to danger in determining the child’s best interest. See C.H., 89 S.W.3d at 28.

The parental abilities of those seeking custody

In July 2004, Walker was arrested in Florida for child neglect because he left his oldest three children in a car while he was out looking for their mother. These charges were dropped and the Florida CPS report was closed because the Department was unable to locate the family. A year later, Walker’s three children were taken into custody by Florida’s CPS Department after it received a report from Lauressa’s relatives that the family was living in a car, traveling from state to state, and the parents were using drugs with children in the back seat. It was reported that neither parent worked and that the children had not been seen in school for over a year. The three children were then placed in the care of Lauressa’s mother, Lisa Hale, in Florida. Walker showed no interest in caring for W.J.W. and had not seen him since the day the child was born. This, when considered with Walker’s two criminal assault charges against his family members and his criminal and drug history, is sufficient to show Walker’s lack of parental abilities.

Programs available to assist parents in promoting the child’s best interests

There was no evidence presented at trial that Walker has participated in any of the programs outlined in the Family Service Plan. Walker told his DFPS caseworker that he was enrolled in a rehabilitation program, but when the caseworker called the number, it turned out to be a shelter and not a rehabilitation center.

Plans for the child by the individual or agency seeking custody

Although Walker testified that his sister was willing to allow W.J.W. to live in her house, he admitted upon further questioning that his sister also told him that it would be best if he would just relinquish his rights. DFPS planned for W.J.W. to be adopted. W.J.W.’s current caregiver had expressed an interest in adopting him and testified that she loved him and wished to provide a safe and loving environment for him.

The stability of the home or proposed placement

The DFPS caseworker testified that W.J.W. was thriving in his current placement and was bonded to his current caregivers. She said that the placement home seems safe and appropriate and that all of WJ.W.’s needs were being met and would be met in the future.

Parent’s acts or omissions that indicate the current parent-child relationship is improper and parent’s excuses for those acts or omissions

Currently, Walker and W.J.W. have no parent-child relationship. Walker has not seen his son at any scheduled visitations arranged by DFPS. Walker apparently did show up for one visit, but a miscommu-nication with the caseworker about the date prevented him from seeing the child. The factfinder could reasonably have concluded that this one failed attempt did not excuse Walker’s failure to visit his son over an entire year.

In light of all of the evidence, the trial court could have reasonably formed a firm belief or conviction that termination of Walker’s parental rights was in WJ.W.’s best interest. Accordingly, we hold that the evidence is both legally and factually sufficient to support the trial court’s finding that termination of Walker’s parental rights was in the best interest of W.J.W.

We overrule Walker’s third issue. Having done so, we need not address his fourth issue, which requests that we reverse the appointment of DFPS as sole managing conservator should we conclude that the trial court erred in terminating his parental rights.

Ineffective Assistance of Counsel

We discuss Walker’s fifth and sixth issues together. In his fifth issue, Walker contends that Sections 263.405(b) and (i) of the Texas Family Code violate the separation of powers provision of the Texas Constitution and deny him due process of law because their operation prevented him from preserving a challenge of ineffective assistance of counsel. In his sixth issue, Walker asserts that he received ineffective assistance of counsel at trial.

We may examine the unpreserved sixth issue in order to determine the validity of Walker’s due process challenge. The Texas Supreme Court presumes that the rules governing preservation of error in civil cases, including parental-rights-termination cases, comport with due process of law. See In re B.L.D., 113 S.W.3d 340, 352-54 (Tex.2003), cert. denied, 541 U.S. 945, 124 S.Ct. 1674, 158 L.Ed.2d 371 (2004). However, the Texas Supreme Court has also acknowledged that, in a given parental-rights-termination case, a particular “calibration” of the procedural due process factors outlined by the United States Supreme Court in Mathews v. El-dridge could require a court of appeals to review an unpreserved complaint of error as part of a fact-specific analysis to ensure that a particular litigant was not denied due process. Id. at 354 (citing Lassiter v. Dep’t of Soc. Services, 452 U.S. 18, 32-34, 101 S.Ct. 2153, 2162-63, 68 L.Ed.2d 640 (1981)). In a case decided on the same day as B.L.D., the Texas Supreme Court held that “our procedural rule governing factual sufficiency preservation must give way to constitutional due process considerations” when a parent’s counsel in a parental-rights-termination case unjustifiably fails to preserve a factual-sufficiency complaint. In re M.S., 115 S.W.3d 534, 546-50 (Tex.2003). Additionally, the Beaumont Court of Appeals has examined unpre-served jury charge error in order to determine whether the parent in a parental-rights-termination case was denied effective assistance of counsel. In re S.A.S., 200 S.W.3d 823, 828-30 (Tex.App.-Beaumont 2006, pet. denied). In determining whether we must review Walker’s unpre-served complaint, we weigh the Eldridge factors and balance the net result against the presumption that Sections 263.405(b) and (i) of the Texas Family Code comport with constitutional due process requirements. M.S., 115 S.W.3d at 547.

Applying the principles set out in the cases discussed and cited above, we determine that we must examine Walker’s unpreserved complaint. Although the State certainly has an interest in ensuring that parental-rights-termination proceedings are expeditious, final, and governed by consistently applied procedural rules, the costs to both the parent and the child of an inaccurate, unjust decision outweigh the benefits of preserving judicial efficiency. Further, as noted by the Texas Supreme Court in M.S. and the United States Supreme Court in Santosky v. Kramer, the State has an interest in protecting the welfare of the child, and that interest must initially manifest itself by working toward preserving the familial bond rather than severing it. M.S., 115 S.W.3d at 548; Santosky, 455 U.S. 745, 766-67, 102 S.Ct. 1388, 1401-02, 71 L.Ed.2d 599 (1982). “ ‘[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.’ ” Santosky, 455 U.S. at 767, 102 S.Ct. at 1402 (quoting Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972)). Thus, the State’s interest in meeting its ultimate goal of ensuring the safety and stability of the child is best served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home. See M.S., 115 S.W.3d at 549; Santosky, 455 U.S. at 767, 102 S.Ct. at 1402. To that end, it is important to protect the Constitutional right to effective counsel of a parent facing the loss of his or her children.

In this case, Walker, who is indigent, was represented by a court-appointed lawyer at trial and is being represented by a different court-appointed lawyer on appeal. Given this situation, we note that, even under the most favorable of circumstances, it would be extremely difficult for the appellate lawyer to procure a trial transcript and clerk’s record, familiarize himself with the case, evaluate the performance of trial counsel, and file a statement of appellate points with the court within the fifteen-day window provided by the statute. Failure to meet this swift deadline would bar the appellate court from considering what may be a valid challenge of ineffective assistance of counsel. We conclude that, in this case, the procedural rule must give way out of concern for due process of law. See B.L.D., 113 S.W.3d at 352-54; M.S., 115 S.W.3d at 546-50; S.A.S., 200 S.W.3d at 828-30. Accordingly, we now examine the merits of Walker’s challenge of ineffective assistance of counsel.

Standard of Review: Ineffective Assistance

To successfully assert a challenge of ineffective assistance of counsel, a defendant in a parental-rights-termination case must show that his or her counsel’s performance was deficient and that this deficiency prejudiced the defense. In re 180 S.W.3d 570, 574 (Tex.2005) (citing In re M.S., 115 S.W.3d at 545) (citing Strickland v. Washington, 466 U.S. 668, 687-92, 104 S.Ct. 2052, 2063-67, 80 L.Ed.2d 674 (1984)). This standard requires a showing that counsel’s errors were serious enough to deprive the defendant of a fair trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S..Ct. at 2064. There is a strong presumption that counsel’s conduct falls within the wide range of reasonably professional assistance, including the possibility that counsel’s decision was based on strategy. M.S., 115 S.W.3d at 549 (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

- In deciding whether counsel’s performance in a particular case is deficient, we must take into account all of the circumstances surrounding the case and focus primarily on whether counsel performed in a “reasonably effective” manner. M.S., 115 S.W.3d at 545 (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65). 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. M.S., 115 S.W.3d at 545 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)).

If a reviewing court concludes that the conduct of Walker’s counsel was deficient, the court must then determine if that conduct was prejudicial to him by assessing whether “ ‘there is a reasonable probability that, but for counsel’s unprofessional error(s), the result of the proceeding would have been different.’ ” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see also M.S., 115 S.W.3d at 550; Garcia, 57 S.W.3d at 440. Strickland's appellate record requirement applies to ineffective assistance- challenges in termination cases: “ ‘An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.’ ” In re K.K., 180 S.W.3d 681, 685 (Tex.App.-Waco 2005, no pet.); see also Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim. App.1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness challenge. See Thompson, 9 S.W.3d at 813.

Walker presented his ineffective-assistance challenge to the trial court in a supplemental motion for new trial, and the trial court overruled Walker’s complaint by denying his supplemental motion for new trial. We therefore analyze Walker’s ineffective-assistance-of-counsel issue as a challenge to the denial of his supplemental motion for new trial. Biagas v. State, 177 S.W.3d 161, 170 (Tex.App.-Houston [1st Dist.] 2005, pet. ref d) (citing Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.App.2004), superseded in part on other grounds by Tex.R.App. P. 21.8(b)). In such circumstances, we review the Strickland test through an abuse of discretion standard. Id. Thus, we reverse only if the trial court’s decision is arbitrary or unreasonable, viewing the evidence in the light most favorable to the ruling. Id.; see also Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App.2007) (“[A] trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court’s ruling.”). In reviewing a trial court’s ruling on a motion for new trial, we give almost total deference to the trial court’s determination of historical facts that are supported by the record, especially when the trial court’s findings are based on an evaluation of credibility and demeanor. Charles, 146 S.W.3d at 206; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We may also rely upon implied findings of fact that are supported by the record to uphold the trial court’s ruling even when the trial court is not faced with expressly conflicting affidavits or testimony. Charles, 146 S.W.3d at 206.

Analysis

First, Walker argues that his counsel was ineffective because his court-appointed lawyer was not present at the termination trial but had sent his brother, who practices law with him, in his place. The record reflects this substitution but no explanation for the switch. We may not speculate to find trial counsel ineffective when the record is silent regarding counsel’s reasons for his actions. See Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994)). Furthermore, Walker has failed to affirmatively show that this substitution constituted a deficiency or that the outcome of the case would have been different had his appointed counsel actually appeared at trial.

Next, Walker argues that his attorney failed to make hearsay objections at trial and to properly cross-examine the witnesses. However, Walker’s appellate counsel did not question his trial counsel regarding these omissions during the motion for new trial hearing. Due to the lack of evidence in the record regarding trial counsel’s reasons for cross-examining the witnesses as he did and for not objecting to certain testimony and evidence, we cannot conclude that trial counsel’s performance was deficient. Walker has not rebutted the presumption that trial counsel made his decisions in the exercise of reasonable professional judgment.

Finally, Walker argues that he received ineffective assistance of counsel because, he alleges, neither of his two attorneys conducted a pretrial investigation. Walker attached an affidavit to his supplemental motion for new trial asserting that the attorneys did not return several phone messages left by Walker, interview any witnesses, inform Walker of his rights and obligations, or familiarize themselves with his case before trial. The affidavit also stated that such investigation would have “brought out information and testimony that would have directly contradicted and refuted the evidence against [Walker].” Walker reiterated many of these statements on the stand at the motion for new trial hearing and argues that, at the hearing on his motion for new trial, his affidavit and testimony were largely uncontroverted by the attorneys who represented him.

After reviewing the entire record in this case, we conclude that it was not unreasonable for the trial court to discredit Walker’s testimony regarding the investigative efforts and conduct of his attorneys and to find that he received effective counsel. A trial court sitting as the trier of fact is not required to accept as true the statements made in an affidavit, even if that affidavit is uncontradicted. See Biagas, 177 S.W.3d at 171; Charles, 146 S.W.3d at 213 (holding that, although affidavits averring that trial counsel had not conducted any independent investigation into voluntariness of defendant’s confession were uncontroverted, trial court did not abuse discretion in denying motion for new trial on grounds of ineffective assistance of counsel). The same is true of live testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000) (citing Mattias v. State, 731 S.W.2d 936, 940 (Tex.Crim.App.1987)); see also Nelson v. Najm, 127 S.W.3d 170, 174 (Tex.App.Houston [1st Dist.] 2003, pet. denied) (applying identical rule in civil bench proceeding — trial court may “take into consideration all the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony”). Further, the uncontradicted testimony of an interested witness cannot be considered as doing more than raising an issue of fact to be decided by the trial court if there are circumstances in evidence tending to discredit or impeach the interested witness’s testimony. See Anchor Cas. Co. v. Bowers, 393 S.W.2d 168, 169 (Tex.1965).

The record in this case discredits and impeaches the veracity of Walker’s testimony. The trial court was well aware at the time of Walker’s testimony of his history of drug use, crime, and imprisonment and the fact that Walker had never even visited W.J.W. The record also reflects that, on at least one occasion during the termination trial, Walker’s testimony under oath was in direct contradiction of the facts established by the court records admitted into evidence. While under oath at his termination trial, Walker testified that he had last used illegal drugs “maybe like eight months” before the trial. However, in the same proceeding, the trial court received evidence that Walker had in fact failed a court-ordered drug test just over two months before the trial. Similarly, Walker did not admit to assaulting WJ.W.’s mother in 2000, although opposing counsel pointed out to him that she had a copy of a judgment establishing that he had pleaded guilty to this offense.

In addition, the transcript of Walker’s direct examination by his counsel discredits Walker’s claims that his counsel conducted no pretrial investigation of this matter. Although relatively brief, the examination is precise and focused on eliciting a series of facts that could be helpful to Walker’s claims. With the exception of Walker’s testimony regarding his contacts with CPS and past drug use, the elicited facts were largely uncontradicted on cross-examination by DFPS. Counsel asked Walker about the alleged failure of CPS to communicate with him during the process; the fact that he was currently living with his sister, who was employed, would help take care of W.J.W., and was willing to undergo a home study for her suitability to be involved in WJ.W.’s life; Walker’s employment skills and job prospects; - and Walker’s alleged involvement in the lives of his other four children. These facts were elicited from Walker despite the fact that Walker was not even present at the beginning of the termination trial and did not appear until the end of the trial, right before his testimony. The record reflects that, after Walker arrived in court, there was only a short recess before he was placed on the stand to testify. Under these circumstances, we conclude that these questions illustrate counsel’s familiarity with the material facts of the case and discredit Walker’s allegations that his counsel did not conduct any pretrial investigation in this matter.

Even if, as the dissent urges, we give no deference to the trial court’s determination of historical facts, Walker’s challenge of ineffective assistance of counsel still fails. The record simply does not affirmatively show a reasonable probability that, but for the conduct of Walker’s counsel, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 5.W.3d at 812. When asked, at the hearing on his motion for new trial, what evidence proffered by DFPS he could have refuted had his counsel conducted an adequate pretrial investigation, Walker was not able to identify any evidence that had not been produced at the termination trial that would have changed its outcome.

Accordingly, we hold that the trial court did not abuse its discretion in rejecting Walker’s testimony and affidavit regarding his counsel’s conduct and denying Walker’s supplemental motion for new trial on the ground of ineffective assistance of counsel. We overrule Walker’s sixth issue.

Due Process

Having examined the record and found Walker’s ineffective assistance of counsel challenge to be without merit, we do not reach his fifth issue because Walker cannot show that the operation of the challenged statute caused him harm. See Cen- terPoint Energy Houston Elec., LLC v. Gulf Coast Coalition of Cities, 252 S.W.3d 1, 31 (Tex.App.-Austin 2008, no pet.) (“[I]n making a due-process claim, a party must show that a due-process violation occurred and that he or she was harmed by that violation.”) (citing Hammock v. Public Util. Comm’n, 131 S.W.3d 713, 730 (Tex.App.-Austin 2004, pet. denied)) (citing Vandygriff v. First Sav. & Loan, Etc., 617 S.W.2d 669, 673 (Tex.1981)). Additionally, our disposition of Walker’s sixth issue effectively disposed of the case. Texas courts will not pass on the constitutionality of a statute when the case may be decided on independent, alternative grounds. Baptist Hosp. of Southeast Tex., Inc. v. Baber, 714 S.W.2d 310, 310 (Tex.1986); San Antonio General Drivers, Helpers Local No. 657 v. Thornton, 156 Tex. 641, 647, 299 S.W.2d 911, 915 (1957) (orig. proceeding).

Conclusion

We affirm the trial court’s judgment.

Justice JENNINGS, dissenting.

TERRY JENNINGS,

Justice, dissenting.

In regard to the ineffective assistance of counsel issue of appellant, Frederick Dewaynne Walker, the majority misunderstands the crux of appellant’s issue, applies the wrong standard of review for ineffective assistance of counsel claims, and mischaracterizes appellant’s conclusive evidence in support of his ineffective assistance claim as “discredit[ed]” and “im-peachfed].” Accordingly, I respectfully dissent.

Background

In his Supplemental Motion For New Trial, Walker argued that he was entitled to a new trial in the suit brought by appel-lee, the Texas Department of Family and Protective Services (“DFPS”), to terminate Walker’s parental rights to his child because “there can be no legitimate strategy involved if [an] attorney never consults with [a] client prior to trial, never investigates, never does any discovery, never interviews the client or his witnesses, and never calls anyone as a witness on his behalf.”

Walker attached to his motion his affidavit, in which he testified that the trial court had not appointed him counsel until January 9, 2007 and this first appointed attorney never met with him. On April 26, 2007, the trial court appointed a second attorney (“appointed trial counsel”) to represent Walker, and Walker finally “met” this attorney on May 10, 2007. Walker explained:

From May 10, 2007 until the trial of the case through August 30, 2007 I never had a conversation with [appointed trial counsel]. I called his office at least five (5) times and was told he was not in the office so I left messages. [Appointed trial counsel] did not appear to represent me at trial. His brother ... actually appeared on his behalf for trial.
I had no office conferences and no telephone conferences with any of these lawyers. No witnesses were interviewed or called as witnesses in my behalf at trial. To the best of my knowledge, information and belief, no investigation of the ease was done. If any investigation was done, I have never been told of the results.
I was not informed by anyone as to exactly what I had to do relative to any services on the Family Service Plan, except for rehabilitation at Houston Recovery Campus (“HRC”). I was never given any other referrals for services.
To the best of my knowledge, information and belief, neither of my attorneys engaged in any discovery about the case. I went to trial without ever having met and discussed my case with either of the lawyers who were supposed to be representing me during the case. [Appointed trial counsel’s brother] knew nothing about me or my case.
He did not question the witnesses against me, based upon any information from me, and when those witnesses provided the court with information that was not true, he had no prior information from me, did not know to ask me and did not ask me any questions which would have brought out information and testimony that would have directly contradicted and refuted the evidence against me. I respectfully assert that I was, in essence, not represented at trial. The representative was ineffective. There was no assistance of counsel. No attempt was made to ascertain, develop or present testimony of all the times I unsuccessfully tried to get a hold of [my caseworkers], how poorly I was treated, how I was told I should relinquish my rights because I could not win.
Since DFPS took custody, I have never been allowed to see my child. [My case worker] only made one attempt to make one (1) appointment for a visit to see my child. I took a bus to her office and waited for 1½ hours until I was told that there would be no visit because she was in court. No other visits were scheduled and to my knowledge none of the attorneys requested or insisted upon my rights as a father to see my child.
(Emphasis added). At the hearing on Walker’s new trial motion, he repeated and elaborated on his affidavit testimony.
The majority concludes that it was not “unreasonable” for the trial court to “discredit” Walker’s evidence that his appointed trial counsel had wholly failed to meet with him to discuss the case, failed to investigate the case, failed to interview witnesses and potential witnesses, failed to conduct discovery, and failed to prepare for trial.
However, contrary to the majority’s conclusion, Walker’s evidence was in no way discredited or impeached. In fact, the only attempt that DFPS made during its cross-examination of Walker to impeach his testimony concerned his status as an indigent. When the trial court stated “let’s stick to the facts that warrant or don’t warrant the motion for new trial not the indigency,” and asked DFPS if it had “[a]nything else,” DFPS responded, “No, Your Honor.”
More importantly, when Walker’s appointed trial counsel was asked on direct examination if he had any “evidence that [he] would like to offer to the court in term’s of or in contradiction to [Walker’s] affidavit,” appointed trial counsel answered, “No.” DFPS made no attempt at all to examine or rehabilitate Walker’s appointed trial counsel at the hearing.
The bottom line is that the trial court, acting as the fact-finder, had no discretion to disregard Walker’s undisputed testimony that allows only one logical inference. See City of Keller v. Wilson, 168 S.W.3d 802, 814-16 (Tex.2005). Here, a reasonable fact-finder could only conclude that Walker was totally deprived of any meaningful assistance of counsel.

The Issue Presented

In his sixth issue, Walker argues that he received ineffective assistance of counsel in DFPS’s suit to terminate his parental rights to his child because his appointed trial counsel “should have met with [him] prior to trial, investigated the case, interviewed witnesses and potential witnesses, conducted discovery, and made some effort at preparation for trial.” Not only did Walker conclusively prove that his appointed trial counsel did none of these things, he also conclusively proved that his appointed trial counsel did not even show up for Walker’s trial. Rather, the appointed trial counsel sent his brother, who did not meet appellant until after DFPS had completed its case, to defend Walker in the trial below.

DFPS argues that Walker “fails to establish proof for an ineffectiveness claim because he does not establish that his attorney’s performance was deficient or that his attorney’s deficiency in any way prejudiced his defense.”

The majority, in a single paragraph, dismisses Walker’s main point, claiming that he has failed to “show that this substitution constituted a deficiency or that the outcome of the case would have been different had his appointed counsel actually appeared at trial.”

However, the crux of Walker’s issue is not that his trial counsel’s performance was merely deficient as discussed by the majority. He is not complaining simply of trial counsel’s errors, omissions, and strategic blunders. Rather, the crux of his argument is that he was, in effect, denied any meaningful assistance of counsel altogether. Walker’s primary point is that he was effectively abandoned and received no defense at all.

Presumed Prejudice

The Texas Supreme Court has 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, 544 (Tex.2003); see Tex. Fam.Code Ann. § 107.013(a)(1) (Vernon 2008). Accordingly, the Texas Supreme Court further decided that the appropriate standard for determining whether counsel is effective in civil parental-rights termination cases is the same as that applied in criminal cases as set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Re M.S., 115 S.W.3d at 544-45. Generally, a criminal defendant asserting a claim for ineffective assistance of counsel based on the errors and omissions of his attorney must show that his attorney’s performance was deficient and below an objective standard of reasonableness and that the deficient performance prejudiced his defense, i.e., but for the attorney’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687,104 S.Ct. at 2064.

Specifically, however, the United States Supreme Court in Strickland expressly explained that in the context of certain ineffective assistance of counsel claims, “prejudice is presumed.” Id. at 692, 104 S.Ct. at 2067. For example, “[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Id. As explained by the Supreme Court in United States v. Cronic,

The [Sixth] Amendment requires not merely the provision of counsel to the accused, but “Assistance,” which is to be “for his defence.” ... If no actual “Assistance” “for” the accused’s “defence” is provided, then the constitutional guarantee has been violated. To hold otherwise “could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.”

466 U.S. 648, 654-55, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984) (quoting Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940)).

Here, Walker’s uncontradicted and un-impeached evidence conclusively establishes that although the trial court formally appointed an attorney to represent him, Walker, in fact, received no actual “assistance” at all for his “defense.” Not only did appointed trial counsel fail to discuss the case with Walker, he actually abandoned Walker and sent his brother, who had never met Walker, to trial in his stead. As pointed out by Walker in his brief to this court, there is no evidence in the record that any attempt was made by counsel to comply with Texas Rule of Civil Procedure 10 or that Walker in any way agreed to this substitution of trial counsel. Instead, appointed trial counsel’s brother showed up on the trial date to represent Walker without ever having met him. In fact, the trial record itself establishes that the brother of Walker’s appointed trial counsel did not even meet with Walker until DFPS had completed its case. The appointment of trial counsel in this case does not even rise to the level of being a “sham.” When given the opportunity to directly contradict Walker’s affidavit testimony at the new trial hearing, appointed trial counsel did not even offer a pretense of having provided any actual assistance to Walker.

It should come as no surprise at all that while Walker was mistakenly sitting in another courtroom waiting for his appointed trial counsel to show up, appointed trial counsel’s brother allowed the trial against Walker to proceed without objection. After Walker made it to the correct courtroom after DFPS had presented its case, appointed trial counsel’s brother placed Walker on the witness stand after a “short” recess.

The trial transcript in this case is only sixty pages long. Of those sixty pages, only forty-one of the pages are devoted to any actual testimony. Of the forty-one pages of testimony, only five pages cover trial counsel’s direct examination of Walker. Conservatively estimating forty-five seconds per page, Walker’s parental rights were terminated in approximately forty-five minutes, less than four minutes of which were devoted to appointed trial counsel’s brother’s direct examination of Walker. In fact, the first thirteen pages of the trial transcript are taken up by trial counsels’ stipulation of evidence, and appointed trial counsel’s brother offered “no objection” to all thirteen exhibits, which contain hearsay evidence that is irrelevant to the actual allegations that DFPS made against Walker. The cross-examination of witnesses made by appointed trial counsel’s brother takes up only approximately four pages of the transcript or approximately three minutes. Thus, the “assistance” of counsel provided to Walker was not merely deficient, it was nonexistent.

The “assistance” of counsel provided to Walker in this case is far below that afforded to the criminal defendant in the infamous “sleeping-lawyer case.” See Burdine v. Johnson, 262 F.3d 336 (5th Cir.2001). In Burdine, the court held that because defense counsel repeatedly slept in trial while evidence was being introduced against the defendant, the defendant was denied counsel. Id. at 338. Thus, it was presumed that counsel’s unconsciousness prejudiced the defendant. Id. The court emphasized,

Unconscious counsel equates to no counsel at all. Unconscious counsel does not analyze, object, listen or in any way exercise judgment on behalf of a client.... When we have no basis for assuming that counsel exercised judgment on behalf of his client during critical stages of trial, we have insufficient basis for trusting the fairness of that trial and consequently must presume prejudice.

Id. at 349.

Although Burdine’s lawyer slept through portions of the trial, it is at least possible that he actually prepared for trial. Here, the undisputed evidence reveals that Walker’s appointed trial counsel never discussed the case with Walker and then abandoned Walker on the trial date. Appointed trial counsel’s brother did not even meet Walker until after DFPS had presented its case against Walker. Neither attorney investigated the case, interviewed witnesses or potential witnesses, conducted discovery, or made any effort at preparation for trial. In short, appointed trial counsel’s brother went into Walker’s trial blind and could not possibly have exercised sound judgment on Walker’s behalf.

The “assistance” of counsel provided to Walker is comparable to that provided to the defendant by the lawyer in the “potted plant” case. See Childress v. Johnson, 103 F.3d 1221 (5th Cir.1997). In Childress, the defendant complained that his attorney, appointed by a district court “a minute or two” before his plea of guilty to help him execute a jury-trial waiver, provided “no meaningful assistance” of counsel. Id. at 1222-23. The court agreed, noting that the appointed lawyer “never investigated the facts, never discussed the applicable law with Childress, and never advised him of the rights he would surrender by pleading guilty.” Id. at 1223. The Court explained,

That a person who happens to be a lawyer is present at trial alongside the accused ... is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.

Id. at 1228 (quoting Strickland, 466 U.S. at 685, 104 S.Ct. at 2063). The right to counsel “encompasses the right to have an advocate for one’s cause.” Id. Noting that the United States Supreme Court has “dispensed with the Strickland prejudice inquiry in cases of actual or constructive denial of counsel,” the court explained that when a defendant can establish that counsel was not merely incompetent but inert, prejudice will be presumed. Id. The court held that although Childress’s counsel at his plea in the 1940’s was “more sentient than a potted plant,” the lawyer “was not the advocate for the defense whose assistance is contemplated by the Sixth Amendment.” Id. at 1231.

Here, likewise, appointed trial counsel and his brother, who merely appeared at the trial on behalf of appointed trial counsel, having never even discussed the case with Walker, did nothing to advocate Walker’s cause. The cursory trial transcript reflects nothing but the equivalent of a drawn-out guilty plea, entered by the brother of appointed trial counsel, to which Walker did not consent.

Conclusion

Walker, at the hearing on his Supplemental Motion for New Trial, conclusively established that he received no meaningful assistance of counsel in the trial court. Because Walker received no meaningful assistance of counsel in the trial court, prejudice is legally presumed. See Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; Cronic, 466 U.S. at 659, 104 S.Ct. at 2046-47; Burdine, 262 F.3d at 349; Childress, 103 F.3d at 1228. Accordingly, I would hold that the trial court erred in denying Walker’s motion for new trial. I would sustain his sixth issue and remand the case to the trial court for a new trial. The majority’s holding to the contrary is a grave error. Like the “sleeping-lawyer” case, this case will stand as a significant embarrassment in the history of Texas jurisprudence.

JIM SHARP, Justice,

dissenting to denial of en banc consideration.

The standard set forth in TRAP 41.2(c) regarding an appellate court’s en banc consideration of a case speaks to “extraordinary circumstances requiring en banc consideration.”

It is my position that both the panel’s opinion and dissent thereto, illustrate the case to be worthy of the additional analy-ses to be obtained from the full court. Here the issue reduces to what action or absence of action by counsel constitutes “an actual or constructive denial” of “any meaningful assistance of counsel” in light of Burdine v. Johnson, 262 F.3d 336 (5th Cir.2001). I believe it to be an extraordinary circumstance that no appellate court has addressed this issue with respect to the denial of effective assistance of counsel in termination of parental rights cases.

The level of public scrutiny upon Texas jurisprudence in this area of effective assistance of counsel is already heightened due, in part, to the Court of Criminal Appeals’ much-maligned Burdine decision in the criminal context and given the particular factual circumstances of this case, at the very least, we should accord it the attention of the full court.

For this reason, I respectfully dissent to the denial of en banc consideration.

En banc consideration was requested. See Tex.R.App. P. 41.2(c).

Chief Justice RADACK and Justices JENNINGS, KEYES, HANKS, HIGLEY, BLAND, SHARP, and MASSENGALE participated in the vote to determine en banc consideration.

A majority of the Court voted to deny en banc consideration. See Tex.R.App. P. 49.7.

Justice SHARP, dissenting from the denial of en banc consideration.

Justice ALCALA recused herself and did not participate.

      . The challenged sections require a party appealing the termination of parental rights to file a statement of appellate points with the trial court. Issues omitted from the statement are not preserved for appeal. The statement of appellate points must be filed with the trial court no later than the 15th day after the signing of an order terminating parental rights.

      . In Eldridge, the United States Supreme Court held that identifying the requirements of procedural due process generally requires consideration of: (1) the private interest affected by the proceeding or official action; (2) the risk of an erroneous deprivation of that interest through the procedures used; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

      . We note that, at the hearing, Walker’s trial attorney neither controverted nor admitted as true the statements in Walker’s affidavit. After testifying as the first witness in the hearing on the motion for new trial, Walker’s counsel testified as follows:
      Q: All right. I understand. Is there any other evidence that you would like to offer to the Court in terms of or in contradiction to the affidavit that Mr. Walker has?
      A: No.
      There was no cross-examination of this testimony.

      . The results of the drug test establish that Walker was under the influence of drugs on the day of his last court appearance before his trial. Walker was represented by counsel at this hearing.

      . Walker later testified in the hearing on the motion for new trial that "just because you get convicted of assault doesn’t mean that you assaulted anybody.” The record also reflects that when asked questions that could be harmful to his case, for example regarding his awareness that his wife was using cocaine and his current employment status, Walker was evasive in his responses.

      . Although the dissent is critical of the brevity of Walker's direct examination, given Walker’s history of drug abuse, including the fact that he had been under the influence of drugs at his last court appearance, and his late arrival at the termination trial, we cannot conclude that Walker’s counsel’s decision to limit Walker’s time on the stand was not a valid strategic decision.

      . In oral argument, when asked to direct this court to "any evidence in the record” showing that Walker had received "any meaningful assistance of counsel” below, appellate counsel for DFPS asserted that Walker had failed a drug test and implied that his appointed trial counsel could have therefore concluded that Walker was unworthy of any such legal representation.

      . Although some of the information presented in these exhibits might possibly amount to more than a scintilla of evidence against Walker, the poor state of the trial record makes this extremely difficult to discern.


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    DBHL, INC. and Dearborn HL, S. de R.L. de C.V., Appellants, v. MOEN INCORPORATED and Moen Sonora S.A. de C.V., Appellees.
    No. 01-08-00046-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 25, 2009.

      Marcus R. Tucker, Royston, Rayzor, Vickery & Williams LLP, Melissa Ann Mi-halick, Nicole B. James, Spencer L. Edwards, The Hudgins Law Firm, Houston, TX, for Appellants.
    Tonja De Sloover, Thomas C. Godbold, Fulbright & Jaworski L.L.P., Houston, TX, Amy Flaherty Hartman, David E. Ko-ropp, Winston & Stawn LLP, Chicago, IL, for Appellees.
    Panel consists of Justices BLAND, SHARP, and TAFT

       Justice Tim Taft, who retired from the First Court of Appeals on June 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on March 24, 2009.

   OPINION

JANE BLAND, Justice.

After DBHL, Inc. and Dearborn HL, S. de R.L. de C.V. (DBHL) settled numerous product liability claims for damages resulting from a defective plumbing part, it sued Moen Incorporated and Moen Sonora S.A. de C.V. (Moen) for indemnification based on a Texas statute and a provision of an asset purchase agreement (APA) under which DBHL acquired a prototype of a defective part. Moen counterclaimed for indemnity for attorney’s fees that it expended in connection with the underlying claims. The trial court granted summary judgment against DBHL on its statutory indemnification claim, and, after a bench trial, entered a take-nothing judgment against both DBHL and Moen on the remaining indemnification claims. DBHL appeals, contending that the evidence is not legally or factually sufficient to support the trial court’s findings and conclusions that (1) DBHL’s losses did not result from or arise out of Moen’s conduct and (2) DBHL was wholly responsible for its liability arising from the defective part, and consequently, Moen owes no contractual indemnity to DBHL. DBHL further contends that the trial court erred in dismissing DBHL’s claim for statutory indemnification on summary judgment because Moen satisfies the statute’s definition of “manufacturer.” Finding no error, we affirm.

Background

In December 2002, DBHL acquired Moen’s specialty plumbing parts business. In addition to Moen’s existing product lines, DBHL acquired prototypes of products in development, including a toilet tank part known as a “fill valve” or a “ballcock,” built with a polypropylene shank rather than with the polyvinyl chloride (PVC) shank Moen primarily used to make ballcocks in its existing products.

Moen considered the change from PVC to polypropylene to be significant and, accordingly, treated the polypropylene ballcock as a new product under its standard development and testing procedures. This meant that Moen would not release ballcocks with a polypropylene shank for sale to the public until they passed rigorous testing. Before the sale to DBHL, Moen’s reliability engineer devised a three-stage test plan for the polypropylene ballcock project. Moen conducted the first stage, which involved prototype testing, with custom-made samples of the product, using different tooling and manufacture methods but not the methods used to mass-produce products sold.to the public.

The second and third stages of the test plan involved production part. approval process (PPAP) testing — which included installation torque testing to evaluate the strength of the mounting nut — and product verification testing. These two stages use samples of the product made with the same equipment and by the same method that would be used to mass produce the products for sale to the public, assuming satisfactory results. Moen, however, did not complete these testing stages before the sale to DBHL because it had not obtained the required production equipment modifications. Before the parties executed the APA, DBHL knew that the propylene ballcocks and design changes were not complete and that, before DBHL could consider releasing the polypropylene ballcocks to the public, it would have to, among other things, obtain production tooling, conduct production part approval process testing on actual samples, and pass all required code compliance testing.

As part of the sale of the business, Moen gave DBHL its files containing the test plan. At that point, DBHL assumed sole responsibility and control for going forward with the polypropylene ballcock project Moen had initiated. DBHL decided to proceed with development and commercial production without reviewing any of the testing results Moen had previously provided to it. From the December 2002 sale closing date until August 2003, DBHL continued to sell the PVC ballcocks that Moen had been selling, but continued to develop the polypropylene ballcocks, without input from Moen, including making its own design decisions and obtaining and approving production tooling. DBHL deviated from Moen’s testing protocol: it released the polypropylene ballcocks for commercial sale in September 2003 without having conducted any of the planned installation torque testing on them.

DBHL sold the ballcocks primarily to original equipment manufacturers (OEMs). By December 2003, DBHL began to receive reports from one of the OEMs that its polypropylene ballcocks were failing in unprecedented numbers, and specifically, that the new shank attached to the ballcock was breaking during assembly.

Based on these reports, DBHL decided to immediately modify the ballcocks by thickening the shank, but did not remove the product from the market. By early March 2004, however, DBHL began to receive more reports that the polypropylene ballcocks were failing in the field. Such a failure was catastrophic in the sense that it caused water to overflow from the toilet, potentially resulting in substantial damage to the end users’ property.

DBHL removed the polypropylene ballcocks from the market in May 2004, after it had sold approximately 1.6 million of them.

The OEMs sued DBHL to recover the payments they had made to settle their customers’ property damage claims, and they sought to hold DBHL liable under various theories, including strict liability, negligence, defective design, and failure to warn. The OEMs alleged that DBHL was negligent with respect to the design, manufacture, quality, testing, and/or sale of the ballcocks, negligent in its failure to notify customers of prior complaints about the ballcocks, and negligent in its failure to properly investigate complaints about the ballcocks. The OEMs also brought claims for breach of contract, and breach of express and implied warranties, arising out of DBHL’s alleged failure to provide a product that conformed to the requirements of DBHL’s contracts with the OEMs, and, in two of the complaints, claims that DBHL intentionally misrepresented that the polypropylene ballcock was an improved product and that it had been adequately researched, certified, and tested.

DBHL reached a settlement with the OEMs and resolved those cases by paying the OEMs approximately $27 million. In settling the OEM claims, DBHL named Moen as a “released party” in the settlement agreements, but reserved its rights to sue Moen “based on contribution, indemnity, negligence, strict liability, breach of contract or any other theory of recovery, legal, equitable, or otherwise.” The OEMs agreed to “cooperate reasonably” in DBHL’s effort to obtain reimbursement from Moen of the consideration paid in connection with the settlement, including an agreement to file suit against Moen if needed to preserve DBHL’s contribution rights. DBHL then demanded that Moen indemnify it for losses caused by the ballcock failures. Moen refused, and DBHL filed this suit.

Discussion

I. Contractual indemnity

DBHL challenges the trial court’s conclusion that Moen did not owe DBHL contractual indemnity, in whole or in part, as well as the legal and factual sufficiency of its findings of fact undergirding that conclusion. We first consider the scope of the parties’ contractual indemnity provision in the APA in determining the propriety of the trial court’s challenged rulings. Courts may not expand the parties’ rights or responsibilities beyond the limits defined in an indemnity contract. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 458 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (citing Ideal Lease Serv., Inc. v. Amoco Prod. Co., 662 S.W.2d 951, 953 (Tex.1983)). The APA declares that Delaware law applies to its interpretation. We consider both Delaware law and, where the applicable rules do not substantially differ, Texas law, in reviewing DBHL’s contractual challenge.

A. Standard of Review

We defer to the trial court’s properly supported factual findings. In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict so long as evidence exists in the record to support them. Amador v. Ber-rospe, 961 S.W.2d 205, 207 (Tex.App.Houston [1st Dist.] 1996, writ denied). We review the sufficiency of the evidence supporting challenged findings of fact by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). We review de novo a trial court’s conclusions of law and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); In re Moers, 104 S.W.3d 609, 611 (Tex.App.Houston [1st Dist.] 2003, no pet.).

The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. If the evidence falls within the zone of reasonable disagreement, then we may not substitute our judgment for that of the fact-finder. Id. at 822. The fact-finder is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence supporting and contradicting the challenged finding and set aside the finding only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); see Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989).

B. Indemnity obligations imposed by the APA

Section 9.3(a) of the APA states: Subject to Sections 9.1 and 9.2, from and after the Closing, Seller shall indemnify, defend and hold harmless Purchaser and its Affiliates (including Foreign Purchaser) and their respective directors, officers, employees and representatives (collectively, “Purchaser Indemnitees ”) from and against any and all claims, demands or suits (by any Person, including any Governmental Authority), losses, liabilities, damages, fines, penalties, obligations, payments, costs and expenses, paid or incurred, whether or not relating to, resulting from or arising out of any Third Party Claim, including the costs and expenses of any and all actions, suits, proceedings, demands, assessments, judgments, settlements, and compromises relating thereto and reasonable attorneys’ fees in connection therewith (collectively, “Losses ”) (provided, that Losses shall not include any indirect, consequential or punitive damages of any Purchaser Indemnitee, including damages for lost profits and lost business opportunities, or any Losses to the extent reimbursed pursuant to insurance policies insuring any Purchaser Indemnitee with respect thereto or otherwise recovered from third Persons, but not excluding any portion of such Loss that would pursuant to the terms of such insurance or other arrangement ultimately be borne by any Purchaser Indemnitee relating to, resulting from or arising out of any deductible or other like arrangement) (individually and collectively, “Indemnifiable Purchaser Losses ”) resulting from or arising out of any of the following:
(i) any breach by Seller of any of the representations or warranties of Seller contained in this Agreement;
(ii) any breach by Seller or Foreign Seller of any covenant of Seller or Foreign Seller contained in this Agreement;
(iii) other than with respect to the Assumed Liabilities, the conduct of the Business or any part thereof or the ownership, use or lease of any Asset, in each case, prior to the Closing Date; and
(iv) any Excluded Liability.

(italics added; underscoring in original). In applying this provision to the underlying claims, the trial court found that “DBHL’s losses did not result from or arise out of the conduct of Moen’s business” before the closing date. DBHL challenges this finding, asserting that the trial court erroneously relied on contentions in the underlying lawsuits to determine whether DBHL’s losses arose from Moen’s pre-closing conduct and failed to make an independent factual determination as to whether the ballcock failures resulted from or arose out of the conduct of DBHL, Moen, or both.

As DBHL correctly notes, a duty to indemnify is triggered by the facts, not merely any underlying pleadings. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.Bd 118, 125 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). But, contrary to DBHL’s assertion, the trial court did not rely merely on the allegations and contentions in the underlying OEM lawsuits. Rather, the trial court made specific findings of fact concerning the events that gave rise to those lawsuits, and reached its conclusions of law by applying the APA’s indemnity provision in construing the effect of those events and each party’s responsibility for them. Accord Delle Donne & Assocs., LLP v. Millar Elevator Serv. Co., 840 A.2d 1244, 1249-50 (Del.2004) (applying jury findings addressing proportionate negligence allocation in determining amount of indemnity owed by each tortfeasor under reciprocal indemnity agreement).

With respect to Moen’s conduct, the trial court specifically found that, (1) at the time Moen sold the business, it had not progressed beyond creating a small number of prototypes of the polypropylene ballcocks and had not completed design verification testing (findings 8, 24, 26, and 72); (2) that Moen never made any determination that the polypropylene ballcocks were ready for release to the public (findings 25, 27, and 73); and (8) Moen provided DBHL with its test plan and made DBHL aware that the polypropylene ballcocks required further testing and design modifications before they would be ready for the market (findings 21, 26, 27, 31, and 32).

The trial court found that DBHL “alone” (1) was responsible for the design of the shank threads and the decision to use pure polypropylene in manufacturing the ballcocks (findings 78 and 79); (2) decided to put the polypropylene ballcocks on the market without conducting the additional testing set forth on Moen’s test plan, including the critical installation torque testing, which could have forewarned them that the polypropylene ballcocks’ shank was too thin given the type and grade of polypropylene used (findings 52 and 77); (3) decided to use existing installation instructions that accompanied the PVC ballcocks without reviewing them or making any effort to determine whether they needed revision (finding 80); and (4) decided to introduce the polypropylene ballcocks into the stream of commerce without ensuring that they had been sufficiently tested (findings 74 and 75). Ultimately, the trial court found, DBHL attributed the ballcocks’ failure to the facts that: “(1) the type and grade of polypropylene chosen was not as strong as PVC; (2) the shank of the ballcoek was not thick enough given the type of polypropylene used; and (3) the threads where the coupling nut attached to the toilet tank were too sharp.” (finding 71)

These specific findings support the trial court’s overarching determination that “[t]hese contributing factors resulted from, and arose out of, DBHL’s conduct of the business after the Closing Date,” and that, obversely, “DBHL’s consequential damages did not arise out of, or result from, in whole or in part, Moen’s conduct of the business prior to the Closing Date.” (finding 71 and conclusion 106).

DBHL next contends that no evidence supports “the necessary finding of fact that DBHL paid to settle its own liability,” and not, at least partially, Moen’s. DBHL points to the settlement agreements as “the only evidence in the record,” on this issue, and, according to DBHL, these agreements show that DBHL paid to settle Moen’s exposure. This contention also lacks merit. As the trial court found, each of the underlying settlement agreements requires the OEM to cooperate with DBHL in its effort to obtain contribution from Moen for the settlement, and assigns to DBHL the right to pursue Moen. Thus, Moen plainly was not “released” from liability in the underlying settlements. In any event, the trial court did not limit its inquiry to the content of the release and settlement agreements in factually determining whether DBHL’s losses resulted from or arose out of Moen’s conduct before the closing date. Rather, its findings of fact specifically address the chronological sequence of events giving rise to the OEM lawsuits and buttress the trial court’s determination that Moen was not responsible for the losses DBHL incurred based on its commercial sale of the product, which commenced after the closing. The trial court based its findings on the extensive testimony about these facts that it heard as the trier of fact.

DBHL finally contends the trial court erred by failing to apportion responsibility for the ballcoek failures between it and Moen, despite its conclusion that Moen is responsible for its own attorney’s fees, a determination Moen chose not to appeal. DBHL’s contention confuses the concept of fault with the APA’s definition of “loss.” The APA defines “loss” as “losses, liabilities, damages, fines, penalties, obligations, payments, cost and expenses, paid or incurred, whether or not relating to, resulting from or arising out of any Third Party Claim including the costs and expenses of any and all actions, suits, proceedings, demands, assessments, judgments, settlements, and compromises relating thereto and reasonable attorneys’ fees in connection therewith.... ” Under the APA, “loss” includes attorney’s fees and costs in defending against lawsuits, which is, according to the trial court’s findings, the only loss incurred by Moen. But with respect to fault, the trial court found that DBHL “alone” decided to forego additional testing and, without making any design modifications or revision to the installation instructions, place the polypropylene ballcoek into the stream of commerce. The record supports these findings. Consequently, we detect no fatal inconsistency between the trial court conclusion that Moen’s “losses” — i.e., the attorney’s fees that Moen incurred when the OEMs sued it — did not result from or arise out of DBHL’s conduct after the closing date with its conclusion that DBHL alone was responsible for the polypropylene ballcoek failures, and thus has no claim for contractual indemnity for the losses DBHL sustained after the closing date.

The trial court’s finding that DBHL was solely responsible for releasing a defective product on the market renders the case DBHL relies on, Delle Donne and Associates, LLP v. Millar Elevator Service Co., factually inapposite. 840 A.2d 1244 (Del. Sup.Ct.2004). In that case, Delle Donne, a building owner and manager, and Millar, an elevator maintenance company, settled a third-party personal injury claim before trial. Millar paid $80,000 and Delle Donne paid the remainder of a $175,000 settlement. Id. at 1258. In a separate suit, they pursued cross-claims for contractual indemnity under reciprocal indemnity provisions. Id. The jury found that Delle Donne was 65% liable and that Millar was 85% liable for the injury. Id. The court adjusted each party’s financial burden for the settlement accordingly, recognizing that an indemnitee was entitled to recover partial contractual indemnity for losses caused by the indemnitor’s negligence, measured by the percentages of liability determined by a jury. Id. at 1253-54.

The trial court’s apportionment of responsibility in this case harmonizes with the rule in Delle Donne: finding that the damages were wholly attributable to DBHL’s conduct, the trial court imposed full responsibility on DBHL and none on Moen. Accordingly, we hold that the trial court did not err in concluding that DBHL is not entitled to contractual indemnity under the Asset Purchase Agreement.

II. Statutory indemnity

DBHL also challenges the trial court’s summary judgment ruling that DBHL is not entitled to statutory indemnity under Chapter 82 of the Texas Civil Practice and Remedies Code for its payments to the OEMs. We review a trial court’s grant of partial summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Under the standard for traditional summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). “When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); see Dorsett, 164 S.W.3d at 661.

Section 82.002(a) of the Texas Civil Practice and Remedies Code provides that “[a] manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.” Tex. Civ. Prac. & Rem.Code Ann. § 82.002 (Vernon 2005). The statute defines a “manufacturer” as “a designer, formulator, constructor, rebuild-er, fabricator, producer, compounder, processor or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce.” Id. § 82.001(4). Here, the undisputed evidence demonstrates that Moen had no involvement in placing the polypropylene ballcock into the stream of commerce. Because Moen cannot be a “manufacturer” without placing the product into the stream of commerce, DBHL is not entitled to statutory indemnity from Moen. Accordingly, the trial court correctly held that DBHL’s statutory in-damnification claim fails as a matter of law. See Owens & Minor, Inc. v. Ansell Healthcare Prods., Inc., 251 S.W.3d 481, 482, 489 (Tex.2008) (holding that statute does not require manufacturer to indemnify against claims involving products other manufacturers released into stream of commerce).

Conclusion

Legally and factually sufficient evidence supports the trial court’s findings that (1) DBHL’s losses did not result from or arise out of the conduct of Moen’s business prior to the APA’s closing date and (2) DBHL was wholly responsible for the losses it incurred due to its product’s commercial failure. These findings support the trial court’s legal conclusion that Moen owes no contractual indemnity to DBHL. Further, the trial court did not err in granting summary judgment in favor of Moen on DBHL’s section 82.002 statutory indemnification claim. We therefore affirm the judgment of the trial court.

      . Moen conducted installation torque testing on all products with threaded attachments. The test involves inserting each sample into a hole in a test plate, installing a mounting nut on the threading, then twisting the mounting nut down on the sample until it fails.