author: Opinion by: KAREN ANGELINI, Justice. DUNCAN, Justice,

text:
    In the Interest of M.J.M.L. a Child.
    No. 04-99-00590-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 27, 2000.

      David L. Willis, Willis & Wilkins, L.L.P., Michael D. Robbins, San Antonio, for appellant.
    Scott Roberts, Asst. Criminal Dist. Atty., Kristin Hanson, San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by: KAREN ANGELINI, Justice.

The parents of M.J.M.L., Stephanie Michelle Maxon Bell-Ortega and Robert Michael Ortega, separately appeal an order terminating their parental rights. Robert complains that there was no evidence to support the trial court’s conclusion that he engaged in conduct which endangered the physical or emotional well being of his child, and, alternatively, that due process required a showing of a causal connection between his conduct and the harm. Stephanie complains that the trial court erred in denying her motion for new trial based on the fact that she was not appointed counsel in a timely fashion. Because we find no reversible error, we affirm the order of termination as to both parents.

BACKGROUND

Stephanie Bell-Ortega delivered her baby, M.J.M.L., immediately after she was arrested on drug charges, and named three men as possible fathers. The baby was born with narcotics in his system. Five days later Appellee, the Texas Department of Protective and Regulatory Services [“the Department”], filed its “Original Petition in A Suit Affecting the Parent-Child Relationship and To Terminate the Parent-Child Relationship.” By order that same day, the Department was named temporary managing conservator of the child. After lengthy treatment for drug withdrawal, the infant M.J.M.L. was released from the hospital and placed in a foster home, where he has since remained. Stephanie- was convicted on her drug charges and remained incarcerated through the date of trial. At the six-month review hearing, Robert Ortega judicially admitted he was MJ.M.L.’s father. At trial, both Stephanie and Robert appeared in opposition to the termination of their parental rights. M.J.M.L.’s foster parents also appeared and expressed their desire to adopt him. After hearing the evidence, the trial court concluded there was clear and convincing evidence supporting termination of Stephanie’s and Robert’s parental rights pursuant to the Texas Family Code. See Tex. Fam.Code § 161.001(1) (Vernon 1996)(listing the statutory grounds which must be proven in order to terminate parental rights). Robert and Stephanie separately appeal the termination. We will address Robert’s issues first, then turn to Stephanie’s issues.

THE FATHER

Robert Ortega raises two issues on appeal: (1) no evidence supported the termination of his parental rights, and (2) he was denied his constitutional rights of due process. We address each in turn.

Legal Sufficiency of the Evidence

Robert asserts in his first issue that there was no evidence to support the trial court’s findings with respect to the statutory ground for termination pled by the Department. A “no evidence” issue is a challenge to the legal sufficiency of the evidence. See In the Interest of M.H., L.H. and A.H., 745 S.W.2d 424, 427 (Tex.App.-Houston [14th Dist.] 1988, no writ).

The Department bore the burden to prove the existence of a properly pled statutory ground for termination under the Texas Family Code, and that termination was in the best interests of the child. See Tex. Fam.Code. § 161.001 (Vernon 1996); In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980). The standard of proof is the clear and convincing evidence standard. See id. The statutory ground at issue in this case is found in section 161.001(1)(E) of the Family Code: “the parent has 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.” See Tex. Fam.Code § 161.001(1)(E) (Vernon 1996). The trial court found by clear and convincing evidence that Robert engaged in conduct or knowingly placed the child with persons who engaged in conduct which physically or emotionally endangered the child, and that termination of Robert’s parental rights was in the best interests of the child. Robert only challenges the court’s findings with respect to the existence of statutory grounds; he does not challenge the court’s findings with respect to the best interests of the child.

A legal sufficiency challenge will be sustained only when the record shows: (1) complete absence of evidence of a vital fact, (2) the trial court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) no more than a scintilla of evidence was offered to prove a vital fact, or (4) the evidence conclusively established the opposite of a vital fact. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). To determine whether there is legally sufficient evidence, all the record evidence and inferences must be viewed in the light most favorable to the finding. See Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). Anything more than a scintilla of evidence is legally sufficient to support the finding. See id.

The cornerstone of Robert’s sufficiency argument is that the trial court was precluded by law from considering portions of the evidence offered. We will first address those arguments, then turn to our legal sufficiency analysis of the record.

a. Evidence Admissible to Prove Statutory Ground for Involuntary Termination

Given the consummate significance of the termination of a parent’s rights to his child, parental termination proceedings are strictly scrutinized on appeal and involuntary termination statutes are strictly construed in favor of the parent. See In the Interest of Shaw, 966 S.W.2d 174,179 (Tex.App.El Paso 1998, no pet.). The Texas Supreme Court has held that the word “endanger” in the context of section 161.001 of the family code means to “expose to loss or injury; to jeopardize.” Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). While subsection (E) endangerment must be a direct result of a parental course of conduct, the conduct described does not have to be specifically directed at the child; nor does it have to cause an actual injury to the child or even constitute a concrete threat of injury to the child. See In re M.C., 917 S.W.2d 268, 269 (Tex.1996); In the Interest of R.D., 955 S.W.2d 364, 368 (Tex.App.San Antonio 1997, pet. denied). Rather, the statute is satisfied by showing that parental conduct simply jeopardized the child’s physical or emotional well-being. See Director of the Dallas Cty. Child Protective Servs. Unit v. Bowling, 833 S.W.2d 730, 733 (Tex.App.—Dallas 1992, no writ). The parental course of conduct includes both the parent’s actions and the parent’s omissions or failures to act. See In the Interest of B.S.T., 977 S.W.2d 481, 484 (Tex.App.Houston [14th Dist.] 1998, no pet.).

Robert first argues that the trial court could not consider any evidence of conduct which may have occurred before the child was born, referring us to the definition of “child” in section 101.003 of the code. Tex. Fam.Code § 101.003 (Vernon 1996)(“ ‘Child’ or ‘minor’ means a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.”). Robert asserts that this definition of child precludes consideration of events which occurred before a child was born. However, no court has held, and we do not find that the statutory definition of “child” conflicts with a definition of a course of conduct endangering a child which incorporates conduct occurring before and after a child’s birth. Texas courts look to what the parent did both before and after the child’s birth to determine whether a course of conduct endangering the child exists. See Avery v. State, 963 S.W.2d 550, 553 (Tex.App.—Houston [1st Dist.] 1997, no pet.); Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex.App.Dallas 1995, no writ).

Robert next argues that as a matter of law the trial court cannot consider evidence of conduct which may have occurred before the rendition of a valid paternity order, citing our opinion in Djeto v. Texas Dept. of Protective & Regulatory Servs., 928 S.W.2d 96 (Tex.App.San Antonio 1996, no writ). He misapplies our holding. The father in Djeto did not know the child was his. See id. at 97. We held that evidence of his conduct prior to the determination of paternity could not be considered in a determination of whether he knowingly placed or allowed the child to remain in conditions or surroundings endangering her physical or emotional well-being. See id. at 98. The termination was thus based on section 161.001(1)(D) of the family code, which is the knowing placement of a child in an endangering environment. As this court recently explained in In the Interest of Stevenson, 27 S.W.3d 195, 201-03 (Tex.App.-San Antonio 2000, no pet. h.),while knowledge of paternity is a prerequisite to a showing of knowing placement of a child in an endangering environment, it is not a prerequisite to a showing of a parental course of conduct which endangers a child under section 161.001(1)(E). See also In the Interest of M.D.S., 1 S.W.3d 190, 198 (Tex.App.-Amarillo 1999, no pet.). We overrule Robert’s argument on the admission of conduct evidence occurring prior to the child’s birth. Having addressed Robert’s evidentiary concerns, we now turn to our legal sufficiency analysis of the record.

b. The Evidence is Legally Sufficient to Support the Termination Order

Our review of the record in the light most favorable to the trial court’s findings reveals more than a scintilla of evidence to support the finding that Robert engaged in a course of conduct which endangered M. J.M.L.’s physical health and well-being. There was evidence that Robert knew M.J.M.L.’s mother, Stephanie Bell-Ortega, was a drug addict. Robert and Stephanie lived together for several years before M.J.M.L. was born. Stephanie testified she was using drugs while living with Robert, and there was physical evidence of extensive track marks on her arms, which presumably Robert was aware of. Their first child, Justin, was born with drugs in his system, as was M.J.M.L. In the spring before M.J.M.L. was born, while Stephanie was pregnant, she and Robert were arrested in their son Justin’s presence. Drugs and drug paraphernalia were found in their car at the time. While Robert later attempted to get help for Stephanie by taking her to a rehabilitation clinic in Dallas, he knew she left the clinic before having the baby and came back to San Antonio to do drugs. He did not come with her; instead he disappeared for at least five months. He later told witnesses he had turned himself into the Navy for a decade-old AWOL violation and served time for it in Florida. He did this at the end of Stephanie’s pregnancy and he did not make arrangements for the care of his soon-to-be-born son during the time he was gone, choosing instead to leave him in the care of a drug-addicted mother.

M.J.M.L. was born literally while Stephanie was being arrested, hence the Department obtained temporary custody of the infant. There is some evidence that Robert contacted the Department shortly after M.J.M.L.’s birth and requested the Department give M.J.M.L. to his mother. However, Robert refused to tell the Department where he was and without more proof, the Department had no way of knowing at the time he was actually M.J.M.L.’s father. This initial evasiveness and refusal to cooperate with the Department continued throughout the eighteen months between M.J.M.L.’s birth and the time of trial. While Robert judicially admitted he was M.J.M.L.’s father in April 1998 and he paid child support when ordered to by the court, he never provided to the Department basic information about himself such as his address, nor did he comply with the service plan approved by the trial court. He submitted to a psychological evaluation but he did not maintain monthly contact with the Department, take the required parenting classes or complete a substance abuse assessment. A representative of the Department and a CASA volunteer both testified they visited an address in Robstown, Texas represented by Robert as his and found an empty, boarded-up shack. When Robert was informed by his “neighbor” of the Department representative’s visit, he called the representative and accused her of harassing him. Robert agreed to studies of his mother and his neighbors as possible placements for M.J.M.L. when they were caring for his other son Justin; however, he removed Justin from their care before the Department could conduct the studies and the studies had to be dropped.

Reading the record in the light most favorable to the verdict, we find some evidence to support the trial court’s finding that Robert engaged in a course of conduct endangering the physical and emotional well-being of his son, M.J.M.L. Robert’s legal sufficiency challenge is overruled.

Denial of Dm Process

In his second issue, Robert argues that he was denied due process under the United States and Texas constitutions because the Department did not establish a causal connection between his conduct and any harm to his child. Specifically, he challenges the constitutionality of the supreme court’s holding in Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex.1987).

The Department responds that Robert has waived this causation issue because he did not raise the issue in the trial court. Constitutional issues must be properly raised in the trial court or they are waived on appeal. See In the Matter of W.A.B., 979 S.W.2d 804, 808 (Tex.App.Houston [14th Dist.] 1998, pet. denied); Segovia v. Texas Dep’t of Protective and Regulatory Servs., 979 S.W.2d 785, 788 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).

At trial, Robert’s counsel argued that Robert’s rights could not be terminated under section 161.001(1)(E) because Robert never had custody of or access to the child. He did not argue that the Department had to prove a causal connection between his behavior and any harm to the child, nor did he make a constitutional due process argument during the hearing. We note that at one point during the hearing the mother’s counsel interjected a constitutional due process argument, presumably on Robert’s behalf. However, Robert’s counsel then deliberately narrowed the argument to the trial court by saying “The fact remains that there was no child in existence for my client to do anything with. There’s no child to place. There’s no child to engage in conduct with. And until that child — My position is: Until that child is born, my client — It’s a physical impossibility for him to do anything with that child.” In his motion for new trial, Robert did assert a constitutional claim, but again, he did not argue the causation issue. Instead, he urges that section 161.001(1)(E) “is unconstitutional because it is used herein to terminate parental rights without requiring parental conduct as a basis, to wit, ROBERT M. ORTEGA NEVER had possession or control of [M.J.M.L.], the child being taken from the mother at birth.”

On appeal, Robert’s position is that even if he engaged in conduct endangering the child, the State failed to make a causal connection between his conduct and any harm to the child. This is a different issue from the one he urged at trial. Thus, Robert failed to preserve this issue.

We note, however, that even if the causal connection due process argument was properly presented to the trial court, Robert has failed to show how section 161.001(1)(E) violated his constitutional right to due process. In his brief, he asks this court to analyze three cases. First, he cites Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex.1987) and concedes that, in that case, the Texas Supreme Court does not require a showing of a causal connection between the parent’s conduct and actual harm to the child. However, the supreme court did not specifically discuss the constitutional due process issue. Second, Robert cites Harris v. Herbers, 838 S.W.2d 938 (Tex.App.-Houston [14th Dist.] 1992, no writ), which he argues stands for the proposition that a causal connection must be established before parental rights can be terminated. Again, however, there is no discussion of the constitutional right to due process in that case and Robert fails to show how the case supports his argument. Third, Robert cites In the Matter of W.A.B., 979 S.W.2d 804 (Tex.App.-Houston [14th Dist.] 1998, no pet.) which he argues “left the door open on the causal connection question” because the constitutional issue was not raised in the trial court and was, therefore, waived on appeal. We disagree with Robert’s conclusion. While the Houston court did state that the constitutional challenge was waived because it was not raised in the trial court, the court also refused to rule on the due process issue because there was nothing in the facts of that case that would make it an exception to the Texas Supreme Court’s interpretation of section 161.001(1)(E). See W.A.B., 979 S.W.2d at 808. Likewise, we can find nothing in the facts of this case to justify a departure from the supreme court’s interpretation of section 161.001(1)(E). In conclusion, Robert has simply failed to show how section 161.001(1)(E) violates his constitutional due process rights. Robert’s two issues are overruled and the order of termination against him is affirmed.

THE MOTHER

Appointment of Attorney Ad Litem

Stephanie Bell-Ortega complains in two issues that the trial court violated Texas Family Code section 107.013(a)(1) and the due process clause of the U.S. Constitution by failing to appoint an attorney ad litem for her until six months after the Department filed its original petition to terminate the parent-child relationship.

At the outset, we note that Stephanie was represented by appointed counsel for over a year before the actual trial date. She does not complain on appeal that she was not given effective representation during that time or at trial on the merits. See In the Interest of B.B. & P.B., 971 S.W.2d 160, 172 (Tex.App.Beaumont 1998, pet. denied)(the right to effective assistance of counsel in criminal actions does not apply to a civil proceeding for termination of parental rights). Stephanie’s issues relate only to the six month delay from the time this suit was filed to the date of the appointment of her first attorney,

a. Section 107.013

In Texas the appointment of an attorney for indigent parents in termination cases is mandated by statute. Section 107.013(a)(1) of the Texas Family Code provides that:

In a suit in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of:
(1) an indigent parent of the child who responds in opposition to the termination.

Tex Fam.Code ANN. § 107.013(a)(1) (Vernon Supp.2000).

Complete failure of a trial court to appoint counsel for indigent parents constitutes reversible error. See Odoms v. Batts, 791 S.W.2d 677, 679-80 (Tex.App.—San Antonio 1990, no writ); In the Interest of T.R.R., 986 S.W.2d 31, 37 (Tex.App.—Corpus Christi 1998, no pet.). However, the Legislature did not set forth any time frame or procedure by which trial courts must appoint counsel. Stephanie urges us to interpret section 107.013(a)(1) to require appointment of an attorney immediately after the filing of a petition to terminate the parent-child relationship, before any hearings are held in the case.

While we recognize that involuntary termination of parental rights statutes must be strictly construed in favor of parents, see Odoms, 791 S.W.2d at 680 (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985)), it is a well established canon of statutory construction that every word excluded from a statute is presumed to be excluded for a purpose. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981); Zajac v. Penkava, 924 S.W.2d 405, 409 (Tex.App.-San Antonio 1996, no writ). The more open-ended language of section 107.013(a)(1) directly contrasts with the preceding section which mandates the appointment of an attorney ad litem for children involved in termination proceedings “immediately after the filing [of the suit], but before the full adversary hearing.” Tex. Fam.Code ANN. § 107.012 (Vernon 1996)(referring to the hearing required to take place fourteen days after a governmental entity is awarded possession of a child. See Tex. Fam. Code ANN. § 262.201 (Vernon 1996, Vernon Supp.2000)). Presumably, if the Legislature wished to impose a similar deadline for appointment of counsel for indigent parents, it would have done so. We decline to read such a deadline into the statute. The appointment of counsel six months after the case began was not in itself a violation of section 107.013(a)(1). Stephanie’s first issue is overruled.

b. Constitutional Due Process

Stephanie also asserts that the trial court’s dilatory appointment of counsel deprived her of constitutional due process of law. Due process under the Fourteenth Amendment protects individuals against arbitrary government acts regardless of the fairness of the procedures used to implement them. The United States Supreme Court held in Lassiter v. Department of Soc. Servs., 452 U.S. 18, 31-32, 101 S.Ct. 2153, 68 L.Ed.2d 640, 652 (1981) that the due process clause does not require appointment of counsel in every parental termination proceeding, and the decision whether due process calls for appointment of counsel is best left to the trial court, subject to appellate review. As we stated, in Texas the timing of appointment of counsel to indigent parents appearing in opposition to termination is a matter within the trial court’s discretion. Therefore, in our due process review, we look to the facts and circumstances of this case to determine whether the trial court’s action was arbitrary and a violation of Stephanie’s due process rights. See Lassiter, 452 U.S. at 32,101 S.Ct. 2153.

The Department filed its suit affecting the parent-child relationship and petition to terminate parental rights on October 21, 1997, five days after M.J.M.L. was born. At that time, and at all times relevant to this proceeding, Stephanie was incarcerated. Two hearings were conducted prior to April 23, 1998, the six-month status review date. Stephanie was not represented by counsel at either hearing.

Stephanie was also not present at the first full adversary hearing October 29, 1997. At that hearing, the trial court and counsel for the Department engaged in discussion which evidenced that the immediate intended course of action was to formulate a service plan with the goal of reunification and to ensure the mother’s compliance with the plan. The Department requested that Stephanie be appointed an attorney ad litem at that time, and the trial court indicated that it would do so. For whatever reason not apparent from the record before us, the appointment was not made at that time.

At the sixty-day status review hearing on December 4, 1997, counsel for the Department put Stephanie on the stand, where she underwent extensive questioning by the Department, the child’s attorney ad litem, and the trial court about the paternity of her baby, her other children and their whereabouts, her drug use and her criminal history. She was admonished several times that she was testifying under penalty of perjury. She was further admonished by the trial court that, if she did not change her lifestyle and follow the service plan, her rights to her children could be restricted or terminated. Stephanie was still not represented by counsel at this time.

The record indicates a subsequent hearing to review the service plan was held December 18, 1997, but we do not have a reporter’s record from that hearing before us.

The next hearing in the case was the six-month review hearing which was held April 23, 1998. Both Stephanie and the father, Robert Ortega were present and testified at the hearing. The Department indicated that they were providing services to Stephanie pursuant to the service plan and that the case was “dual-tracked” for termination and reunification, which meant that even though a termination petition was on file Stephanie still had an opportunity to work with the Department to prevent the termination. While Stephanie was not represented by counsel at the hearing, the trial court appointed Irene Whitt as Stephanie’s first attorney ad li-tem that day.

Stephanie was represented by Whitt until the March 23, 1999 pretrial conference, at which she, the attorney for the Department and the ad litem attorney for the child all asked the trial court to discharge Whitt. The court then appointed Michael Bowles to take her place. Bowles filed a motion for continuance of the trial setting; however, at the hearing on the motion Stephanie requested it be withdrawn. The case was tried on May 3-5, 1999, approximately six weeks after Bowles was appointed.

In summary, the record shows that a request was made by the Department outside Stephanie’s presence for the appointment of her counsel at the first adversary hearing, and was agreed to but not followed up on by the trial court. The record also shows that Stephanie was later required to testify extensively in two preliminary hearings without the benefit of counsel.

However, the record does not show that she requested counsel at either hearing. Further, the record shows that at the time of those hearings the goal of the Department was the reunification of Stephanie and her child. The Department made clear its intent to dual-track the case for termination as well as reunification at the six-month hearing, and the trial court appointed counsel for the parents at that time. Once counsel was appointed Stephanie had more than a year to prepare for trial. There is no indication in the record before us that she complained about Whitt’s services prior to the date Bowles was appointed. Then, after withdrawing Bowles’ motion for continuance, Stephanie testified at trial that she was completely-satisfied with Bowles’ representation. These facts do not show that the trial court acted arbitrarily in delaying appointment of counsel until the Department announced it was dual-tracking the case for termination, nor do they show that Stephanie was deprived of her substantive due process rights. Cf. Ybarra v. Texas Dep’t of Human Serns., 869 S.W.2d 574, 580 (Tex.App.-Corpus Christi 1993, no writ)(no error in failure to appoint counsel when appellant did not request counsel and was represented by counsel at trial). Stephanie’s second issue is overruled and the order of termination against her is affirmed.

Concurring and dissenting opinion by: SARAH B. DUNCAN, Justice.

DUNCAN, Justice,

concurring and dissenting.

I concur in the court’s judgment affirming the termination of Stephanie Bell-Ortega’s parent-child relationship with M.J.M.L. But I must dissent to the judgment affirming the termination of Robert Ortega’s parental rights.

Standard of Review

Ortega challenges only the legal sufficiency of the evidence. In the context of the termination of parental rights, we review legal sufficiency complaints under the same standard employed in other types of cases. In re R.D., 955 S.W.2d 364, 368 (Tex.App.-San Antonio 1997, pet. denied). Accordingly, we must determine whether there is “(a) a complete absence of evidence [as to the challenged element]; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove [the challenged element]; (c) the evidence offered to prove [the challenged element] is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the [challenged element].” Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960). Evidence is no more than a scintilla when it “is so weak as to do no more than create a mere surmise or suspicion of its existence.” Id. at 363. If reasonable minds cannot differ that evidence is not probative of the vital fact, it is, in legal effect, no evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

Applicable Law

As the majority states, the only statutory ground for termination at issue is section 161.001(E) of the Texas Family Code, which provides:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence ... that the parent has ... 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) (Vernon Supp.1999). Endangering a child involves “ ‘more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment.’ ” In re M.C., 917 S.W.2d 268, 269 (Tex.1996) (quoting Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987)). To “endanger” means “‘to expose to loss or injury; to jeopardize.’ ” Id. However, “ ‘it is not necessary that the conduct be directed at the child or that the child actually suffers injury.’ ” Id.

“Child,” as defined by the Family Code, “means a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.” Id. § 101.003. As a general rule, the term “person” does not include a fetus. See Roe v. Wade, 410 U.S. 113, 158, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (“person,” as used in the Fourteenth Amendment to the United States Constitution, does not include the unborn); Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 504 (Tex.1987) (an unborn fetus is not an “individual” or “person” within the meaning of the wrongful death statute); Tex. Penal Code Ann. §§ 1.07(a)(26), (38) (defining “individual” as “a human being who has been born and is alive” and defining “person” as “an individual, corporation, or association”), 22.04(c)(1) (defining “child” as “a person 14 years of age or younger”) (Vernon 1994).

PRE-Birth Conduct

In affirming the judgment against Ortega, the majority holds we may consider “what the parent did both before and after the child’s birth.” 31 S.W.3d at 351 (citing Avery v. State, 963 S.W.2d 550, 553 (Tex.App.-Houston [1st Dist.] 1997, no pet.), and Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex.App.-Dallas 1995, no writ)). In the majority’s view, the statutory definition of “child” does not conflict with consideration of pre-birth conduct. 31 S.W.3d at 351. I cannot agree, either as a matter of statutory construction or public policy.

Statutes authorizing the termination of parental rights must be strictly construed in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). In light of this rule of strict construction and the statutory definition of “child” in the Texas Family Code and the related definitions of “person” in Texas statutory and case law, we cannot construe section 161.001(1)(E) as permitting termination of the parent-child relationship for prenatal endangering conduct. This conclusion is buttressed by the grounds for termination set forth in section 161.001(1). Most of these grounds necessarily relate to post-birth conduct. See Tex. Fam.Code Ann. § 161.001(1)(A)-(C), (F), (G), (I), (J)(N), (O), (Q), and (S) (Vernon Supp.1999). Indeed, when the Texas Legislature intended for pre-birth conduct to justify termination, it made its intention perfectly clear. See id. at § 161.001(1)(H) (“voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth”); id. at § 161.001(1)(L)-(M) (conviction or community supervision for criminal responsibility for the death or serious injury of a child); id. at § 161.001(1)(R) (parent was cause of child being born addicted to alcohol or a controlled substance). I therefore must conclude the Texas Legislature intended for pre-birth conduct to justify termination only when the conduct is expressly encompassed by a statutory ground for termination. Since pre-birth conduct is not expressly mentioned in section 161.001(1)(E), it is not probative in this case.

Failure to Comply with Service Plan

The majority also relies upon evidence that Ortega failed to cooperate with the Department and failed to comply with its service plan. However, the trial court admitted this evidence solely for purposes of establishing M.J.M.L.’s best interests, as the following exchange makes clear:

Q: All right. Now, did you take that opportunity to go over with [Ortega] the plan that you had previously developed in his absence?
A: Yes.
Ortega’s attorney: Objection, Your Hon- or. Going to have to object to any references to the plan of service in this case. It is not plead as a ground for termination.
State’s attorney: Your Honor, it goes to best interest, that we have to show that we have attempted to work with this man and that he hasn’t responded.
The Court: Overruled.
Ortega’s attorney: Your Honor, well, I reurge my objection, Judge.
The Court: Well, it doesn’t go to the grounds for termination. It goes to best interest.
Ortega’s attorney: But the Code was amended, if I may?
The Court: Sure.
Ortega’s attorney: May I address the Court? September 1st, 1997, Judge, the Family Code was amended to specifically set out as a basis for termination failure or failure to comply with the service plan or failure to cooperate with the plan of service developed by the Department. That has not been plead by the Department or any ad litem in this case. I cannot — in good conscience, I cannot agree to try that issue by consent, nor can I agree to a trial amendment on that issue. It is a specific ground, and this case was filed after September 1st, 97.
The Court: I understand that, and I’m not allowing it in on a specific ground, nor will I allow it to be tried by consent due to your objection, but I’m going to allow that information to come in on the second prong, best interest of the child.
The Court: I will give you a running objection, too.

See Tex.R. Evid. 105(a). The State has not complained of the court’s ruling. Thus, in addressing the legal sufficiency of the evidence to support the trial court’s finding under section 161.001(1)(E), we may not consider evidence that Ortega failed to comply with the service plan or cooperate with the Department.

Past Residence

The majority also appears to rely on evidence that, after M.J.M.L.’s birth, Ortega lived for some period of time in an “empty, boarded-up shack.” I agree this is some evidence from which it might be inferred that Ortega’s living conditions, at least at some point in the past, might have jeopardized M.J.M.L.’s physical and emotional well-being. But this is not the test. Rather, Ortega’s conduct must have exposed M.J.M.L. to loss or injury. This test is plainly not met since Ortega has never had custody, control, or possession of the child.

Suggestion of Relative Placement

Finally, the majority relies upon evidence that the person Ortega suggested as a relative placement, his mother, was not evaluated because she no longer cared for Ortega’s other son. However, there is no evidence of the suitability of Ortega’s mother as a caregiver for M.J.M.L. Thus, Ortega’s suggestion of his mother is a relative placement is not probative of whether he engaged in conduct that endangered M.J.M.L.’s physical and emotional well-being.

Conclusion

So far as I can discern, the only probative evidence of whether Ortega may have jeopardized M.J.M.L.’s physical or emotional well-being is that he visited M.J.M.L. only three times in eighteen months, and he failed to ask CPS caseworkers about his son’s special needs. This is not in my view legally sufficient evidence to support the trial court’s finding of endangering conduct. As the CPS caseworker, Richard Guzman, testified:

Q: [H]as Mr. Ortega, Robert M. Ortega, the respondent here, engaged in any conduct which would damage or which would endanger the physical or emotional well-being of [M.J.M.L.]?
A: Not to my knowledge, sir.
Q: And he is not — you have already testified, he hasn’t placed the child with anybody; he hasn’t had that ability, correct?
A: Yes, sir.

To terminate — finally and irrevocably— a child’s relationship with his father is a decision of constitutional magnitude. It may be that Ortega cannot parent M.J.M.L. But the Department has not proved its case in this proceeding. I therefore dissent to the majority’s judgment affirming the termination of Robert Ortega’s parent-child relationship with M.J.M.L.


source: Caselaw Access Project

author: Opinion by: TOM RICKHOFF, Justice. SARAH B. DUNCAN, Justice,

license: Public Domain

text:
    Pablo RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00722-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 27, 2000.

      J. Martin Clauder, Law Offices of J. Martin Clauder, Gonzales, for appellant.
    Allison Lanty, Asst. Dist. Atty., Seguin, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by: TOM RICKHOFF, Justice.

Pablo Rodriguez was charged with driving while intoxicated, enhanced by two pri- or convictions for driving while intoxicated (DWI). A jury, finding the enhancement paragraphs true, found Rodriguez guilty of the felony offense of DWI. The trial court assessed punishment at 35 years confinement. We address whether: (1) the evidence was factually sufficient to support the conviction and (2) a 1991 DWI conviction was used both for the purpose of enhancing the offense and enhancing the punishment. We hold the evidence was sufficient to support the conviction, but we remand for re-sentencing.

SUFFICIENCY OF THE EVIDENCE

Rodriguez asserts the evidence is factually insufficient to support his conviction. In considering a factual sufficiency challenge, we do not view the evidence through the prism of “in the light most favorable to the prosecution.” Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Instead, we examine all of the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 958 S.W.2d at 410; Clewis, 922 S.W.2d at 129. We must defer to the factfinder, and may find the evidence factually insufficient only where necessary to prevent manifest injustice. See Cain, 958 S.W.2d at 407.

At about 1:30 a.m. on November 7, 1998, Officer Golla received a dispatch to the scene of a disturbance, and he was given the description of a maroon truck driven by a man involved in the disturbance. Golla was told the man was Pablo Rodriguez and that he might be intoxicated. Golla saw the maroon truck and began to follow it. Golla testified that the truck was speeding, but he did not know how fast it was going. As he was following the truck, Golla turned on his flashing lights, but the driver, who turned out to be Rodriguez, did not immediately stop. Gol-la then turned on his side-mounted light and siren. Rodriguez swerved over the yellow line into the turning lane and then veered back into the line of traffic. At all other times, he kept the truck under control.

After about four blocks, the truck finally came to a stop, and Golla ordered Rodriguez to get out of the truck. Golla testified he handcuffed Rodriguez because Rodriguez had allegedly assaulted someone and was “possibly” driving while intoxicated. Golla thought Rodriguez was intoxicated because he was unsteady when he got out of the truck, there was a smell of alcohol on his breath and person, and his eyes were glassy. Golla did not ask Rodriguez to perform any field sobriety tests because Rodriguez was belligerent. Golla admitted that if he had not been told by dispatch that the driver of the maroon truck might be intoxicated, he would not have suspected Rodriguez was driving while intoxicated based on how he was driving.

Shortly after Golla stopped Rodriguez, Officer Price arrived. Price also testified that no field sobriety tests were administered because of Rodriguez’s belligerence. Price transported Rodriguez to the Sheriffs Office, and put him into a room with a videotape and an Intoxilizer. With the videotape on, Price read Rodriguez his DWI statutory warnings, and asked him to take the breath test. Rodriguez refused. Price then had Rodriguez perform three sobriety tests, after which Price concluded Rodriguez was intoxicated.

On appeal, Rodriguez asserts the State did not meet its burden of proof because Golla said he did not think Rodriguez was intoxicated based on how he was driving the truck and because there was no opinion testimony that he lacked the normal use of his mental or physical faculties. We disagree. After examining all the evidence without viewing it in the light most favorable to the verdict, we find the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. We hold the evidence was factually sufficient to support the jury’s verdict.

ENHANCEMENT OF OFFENSE AND PUNISHMENT

The indictment alleged Rodriguez was driving while intoxicated on November 7, 1998. The indictment contained four enhancement paragraphs, each alleging the following dates of DWI convictions: December 9, 1986, May 26, 1987, September 6, 1988, and August 2, 1991. At the arraignment, the State read only the 1986 and 1987 convictions to the jury. Although proof of the 1986 and 1987 convictions were admitted into evidence, the exhibits evidencing the convictions did not contain Rodriguez’s fingerprints or other identifying information. The State introduced into evidence the 1991 conviction to prove Rodriguez was the same person named in the 1986 and 1987 convictions, and the trial court admitted the 1991 conviction for the limited purpose of identifying Rodriguez. The jury charge instructed the jury that it could find Rodriguez guilty of the felony offense as alleged in the indictment only if it found beyond a reasonable doubt that he had previously been convicted two or more times of being intoxicated while driving or operating a motor vehicle in a public place, specifically on December 9, 1986 and May 26, 1987. The jury also was instructed that evidence of other offenses was to be used only as an aid in deciding whether Rodriguez had two prior convictions and was not to be used for any other purpose.

During closing arguments, the State told the jury it needed to consider the 1986 and 1987 convictions for the purpose of finding Rodriguez guilty of a felony offense. The prosecutor explained that fingerprints were not included in the exhibits evidencing the 1986 and 1987 convictions; therefore, the jury should consider the exhibits evidencing the 1991 conviction for the purpose of deciding whether Rodriguez was the same defendant convicted in 1986 and 1987. The jury found Rodriguez guilty of the felony offense of DWI.

At the sentencing hearing, the State read the 1988 and 1991 convictions into the record for the purpose of enhancing the punishment. Defense counsel objected to the use of the 1991 conviction, arguing that it could not be used to enhance punishment because the State had already used it to enhance the offense.

If it is shown during a DWI trial that the defendant has been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated, the offense is a felony of the third degree. Tex. Pen.Code Ann. § 49.09(b) (Vernon Supp.2000). A prior conviction may not be used under section 49.09(b) if: (1) the conviction was a final conviction under subsection (d) and was for an offense committed more than ten years before the offense for which the person is being tried was committed; and (2) the person has not been convicted of an offense under section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated committed within ten years before the date on which the offense for which the person is being tried was committed. Id. § 49.09(e). If it is shown during a DWI sentencing that the defendant has been convicted two times of a felony offense, and the second offense was subsequent to the first, the defendant shall be punished by confinement for life, or for any term not less than 25 years and not more than 99 years. Id. § 12.42(d). A prior conviction may be used for enhancement purposes under section 49.09(b) or 12.42(d), but not both. Id. § 49.09(f).

On appeal, Rodriguez asserts that the 1991 conviction was used both to enhance the primary offense of DWI under section 49.09(b), and' to enhance the punishment under the habitual felony offender statute, section 12.42(d). Rodriguez argues that the 1991 conviction was used to enhance his offense because the State had to admit evidence of that conviction before it could admit evidence of the 1986 and 1987 convictions under section 49.09(e). He argues that because the 1986 and 1987 convictions occurred more than ten years before the offense with which he was charged, the 1991 conviction was an essential element of the felony DWI offense. He concludes that the 1991 conviction was “used” to enhance his offense; therefore, it was error for the trial court to “use” it to enhance his sentence.

Prior intoxication-related offenses, whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated. See Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App.1999). The prior intoxication-related offenses are elements of the offense of DWI. See Gibson, 995 S.W.2d at 696; Jimenez v. State, 981 S.W.2d 893, 896 (Tex.App.-San Antonio 1998, pet. ref'd). They define the offense as a felony and are admitted into evidence as part of the State’s proof of its case-in-chief during the guilt-innocence stage of the trial. See Gibson, 995 S.W.2d at 696.

Because Rodriguez’s 1986 and 1987 convictions were too remote in time, the State was required to prove an intervening conviction. See Tex. Pen.Code Ann. § 49.09(e) (Vernon Supp.2000). The 1991 conviction served this purpose. At trial and on appeal, the State asserts the 1991 conviction was used only to identify Rodriguez; it was not used to enhance the offense. The State does not explain how or whether the 1986 and 1987 convictions could have been admitted into evidence without proof of the 1991 conviction. We conclude that “tacking” the 1991 conviction to the 1986 and 1987 convictions was necessary to render the 1986 and 1987 convictions not remote under section 49.09(e). The narrow issue on appeal, then, is whether tacking the 1991 conviction to the remote 1986 and 1987 convictions during the guilt-innocence phase caused the 1991 conviction to be “used for purposes of enhancement under” section 49.09.

The parties do not direct our attention to, and our own research does not reveal, any cases addressing this issue. However, we note that a prior conviction for felony DWI may be used in a subsequent felony DWI prosecution to show that a defendant is a habitual felony offender. See Phillips v. State, 992 S.W.2d 491, 493 (Tex.Crim.App.1999); see also Guinn v. State, 696 S.W.2d 436, 438 (Tex.App.-Houston [14th Dist.] 1985, pet. ref'd) (upholding defendant’s felony conviction upon his third DWI offense effected will of Legislature to punish repeat offenders more severely, to discourage offenders from drinking and driving, and to physically remove drunk drivers from public streets); Square v. State, 142 Tex.Crim. 493, 154 S.W.2d 852, 852-53 (1941) (enhanced penalty statutes are reformatory in nature). Thus, section 12.42(d) serves the purpose of enhancing punishment for a defendant who, after previous convictions, does not reform because of his persistence in the perpetuation of crime. Cf. Linley v. State, 501 S.W.2d 121, 123 (Tex.Crim.App.1973) (“When construing penal statutes authorizing increased punishment in connection with other criminal statutes, the Legislature obviously intended for the enhanced penalty statutes to be reformatory in their nature.... ”). Therefore, in determining when a prior conviction has been “used” under section 49.09(f), we look for guidance in those cases discussing when evidence of a prior conviction may be used for the purpose of showing lack of reformation.

Generally, when a defendant testifies, prior convictions for felonies or misdemeanors involving moral turpitude may be admitted in evidence as impeachment. Tex.R. Evid. 609(a). However, the Texas Court of Criminal Appeals has placed limits on that general proposition by holding that evidence of extremely remote convictions cannot be admitted for purposes of impeachment. See Lucas v. State, 791 S.W.2d 35, 50 (Tex.Crim.App.1989). The general rule of thumb is that where the release from confinement is less than ten years prior to the proceeding in which the conviction is sought to be used, the conviction is admissible. See id.; Tex.R. Evid. 609(b).

The Court of Criminal Appeals has carved out an exception to the general rule. If more than ten years has elapsed, a prior conviction will not be held remote if the witness’ lack of reformation is shown by evidence of an intervening conviction for a felony or a misdemeanor involving moral turpitude. See Lucas, 791 S.W.2d at 51; McClendon v. State, 509 S.W.2d 851, 855-57 (Tex.Crim.App.1974); Crisp v. State, 470 S.W.2d 58, 59 (Tex.Crim.App.1971); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.-Houston [1st Dist.] 1990, pet. ref d). Evidence of the lack of reformation or subsequent felony and certain misdemeanor convictions may then cause the prior conviction to fall outside the general rule and not be subject to the objection of remoteness. See McClendon, 509 S.W.2d at 855-56; Crisp, 470 S.W.2d at 59.

, In Lucas, the State was allowed to impeach a defense witness with evidence of the witness’s almost 20-year-old forgery convictions. The State argued that the witness had not reformed in the intervening years because he had fled the jurisdiction of another state rather than face drunken driving charges and he allegedly participated in a kick-back scheme to take part of a worker’s pay in return for showing the worker present at a jobsite even if the worker was absent. The Court of Criminal Appeals held that while the trial court properly considered uncontroverted evidence of the witness’s flight to avoid prosecution in making its decision to admit the remote prior convictions, the court erroneously considered evidence of the highly contested issue regarding the witness’s participation in an illegal kick-back scheme. 791 S.W.2d at 52. The court concluded that, without any other intervening acts of misconduct, evidence of flight ten years before trial was not enough to show unreformed character at the time of trial. Id.

In Sinegal, the State was allowed to impeach the defendant’s credibility with five prior convictions. The defendant had been released from prison ten and one-half years before trial, he did not have any intervening convictions, and he was between 16 and 19 years old when he committed the prior offenses. The court of appeals held that the trial court abused its discretion in allowing evidence of the remote convictions because there was no evidence of lack of reformation. 789 S.W.2d at 388.

We interpret these cases as requiring proof of intervening convictions before a remote conviction may be admitted into evidence. Similarly, we hold that proof of an intervening conviction under section 49.09(e)(2) is required before a remote conviction may be used to enhance an offense under section 49.09(b). In other words, it is not enough that an intervening conviction merely exist; the State must prove lack of reformation by admissible evidence. As we have already noted, if the remote conviction is an element of the offense, then a necessary intervening conviction is also an element of the offense. Therefore, because the State was required to use the 1991 conviction to defeat a remoteness objection to the 1986 and 1987 convictions, we hold that the 1991 conviction was “used for purposes of enhancement [of the offense] under” section 49.09(f). Accordingly, it was error for the trial court to use the 1991 conviction to prove habitual felony offender status under section 12.42 to enhance Rodriquez’s punishment.

Rodriguez was found guilty of felony DWI, a third degree felony. Tex. Pen.Code Ann. § 49.09(b). The normal range of sentencing for this offense is imprisonment for not more than ten years or less than two years and a fine not to exceed $10,000. Id. § 12.34. Rodriguez’s sentence was enhanced because he had two previous felony convictions, one of which was the 1991 conviction. If a person who is guilty of a third-degree felony, such as felony DWI, is an habitual felony offender, the person may be punished by imprisonment for life or for any term of not more than 99 years or less than 25 years. Id. § 12.42(d).

In this case, Rodriguez was sentenced to thirty-five years in prison. Without proof of two previous felony convictions, he could have only been sentenced to imprisonment for not more than ten years or less than two years. Id. § 12.34. Therefore, we conclude that Rodriguez was harmed by the trial court’s error.

We affirm the trial court’s judgment as to the finding of guilt and reverse that portion of the judgment imposing sentence and remand the cause for reassessment of punishment. See Tex.Code Crim. PROC. Ann. art. 44.29(b) (West Supp.2000).

Dissenting opinion by: SARAH B. DUNCAN, Justice.

SARAH B. DUNCAN, Justice,

dissenting.

I concur in the court’s judgment affirming the conviction but not in its reversal of the punishment assessed. In my view, the 1991 conviction was used as a predicate to the admissibility of the 1986 and 1987 convictions; it was not used to enhance the level of offense.

      . The jury viewed the videotape.

      . After Golla testified, and outside the jury’s hearing, the prosecutor told the court he would offer the 1991 conviction for two purposes: first, to identify the defendant, and second, to tack onto the 1986 and 1987 convictions. The prosecutor said this in response to the trial court’s concern that the 1986 and 1987 convictions were more than ten years old.

      . The State contends Rodriguez waived his objection because he did not obtain an adverse ruling. We disagree. After counsel made his objection, the trial court stated, "That is a good point on appeal.” We construe this statement as an adverse ruling sufficient to preserve Rodriguez’s complaint on appeal.


text:
    Jose Guadalupe PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00785-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 27, 2000.
    Jorge G. Aristotelidis, Laredo, for appellant.
    Alan E. Battaglia, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by: PHIL HARDBERGER, Chief Justice.

Jose Guadalupe Perez (“Perez”) appeals his conviction for felony driving while intoxicated. In his sole point of error, Perez contends that he received ineffective assistance of counsel, rendering his plea involuntary. We overrule Perez’s point of error and affirm the trial court’s judgment.

PROCEDURAL HISTORY

Perez was indicted for his third offense of driving while intoxicated which is a felony. Perez was not a U.S. citizen but was a legal resident. Perez resided in the U.S. since he was five years old and was thirty-three at the time of the offense. He has a wife and three children.

Perez signed the trial court’s written admonishments that informed him that if he was not a U.S. citizen, a plea of guilty or nolo contendere may result in deportation, exclusion from admission to the U.S. or denial of naturalization under federal law. In addition, at the plea hearing, the trial judge stated his understanding that Perez was not a U.S. citizen and verbally admonished Perez regarding the consequences of a plea of guilty.

Perez’s trial attorney, Michael Sawyer, questioned Perez on the record at the plea hearing about their prior discussion about the effect of entering a guilty plea. Perez acknowledged that his decision was between trying the case and facing the possibility of deportation and a sentence of two to twenty years or accepting the State’s plea bargain for four years with the possibility of probation. Sawyer summarized, “But either way you go, whether it’s probation or a trial and you’re convicted, either way you’re facing a possibility of deportation.” Perez acknowledged that he understood the possibility and pled guilty to the offense.

During the sentencing phase of the trial, Perez was represented by Walter Serna. Perez was sentenced to four years, in accordance with the plea bargain agreement, and was placed on probation for five years. After the trial court pronounced Perez’s sentence, Serna stated, “Judge, for the record, he has a hold placed on him by immigration. When he gets that cleared up, Judge, then he’s to report to the probation officer, if he stays here in the country?” The trial court agreed.

Perez then retained new counsel and filed a motion for new trial. The motion for new trial asserted that Perez’s plea was involuntary because trial counsel misinformed him about the present state of law with regard to deportations following conviction for felony DWI. Perez asserted that if he had known that he would face automatic deportation, he would have proceeded to trial or negotiated for a lesser DWI offense. Perez attached the affidavit of Anne D. Monahan, an immigration lawyer, to his motion for new trial. Monahan stated that a felony driving while intoxicated offense was classified as a crime of violence in 1998, making a conviction an aggravated felony for immigration purposes. Monahan further stated that under current immigration law, a lawful permanent resident who is convicted of an aggravated felony is statutorily barred from applying for any form of relief from removal/deportation. Monahan asserted that deportation may be a collateral consequence in other circumstances when relief is available, but the current immigration law makes deportation a definite, immediate, and largely automatic consequence.

At the hearing on the motion for new trial, Monahan testified that prior to 1996, a waiver would be available to Perez that would permit him to readjust his status and remain in the country as a legal resident. In 1996, federal law was amended to remove the waiver, making deportation automatic if a legal resident is convicted of felony driving while intoxicated and receives a sentence for one year or more. Monahan stated that Perez would still have relief available if he had pled to a second offense DWI with 364 days in jail.

Sawyer also testified at the hearing on the motion for new trial. Sawyer testified that he made Perez aware of the immigration problem, and Perez told him that he had an immigration lawyer. Sawyer testified that he advised Perez to discuss the possibility of deportation with his immigration lawyer. Sawyer stated that Perez informed him that he believed he would be okay as long as he got probation. Sawyer stated that he was unaware that a guilty plea would result in automatic deportation and that if he had known, he would not have allowed Perez to plead guilty. Sawyer stated that he would either have set the case for trial or sought a plea bargain that would have prevented automatic deportation.

Perez testified that he would not have pled guilty if he had known deportation was automatic. He stated that he would have fought the case by going to trial.

The trial court denied the motion for new trial, and Perez timely filed his appeal.

STANDARD OP REVIEW

The two part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges to guilty pleas based on ineffective assistance of counsel. Ex parte Pool, 738 S.W.2d 285, 286 (Tex.Crim.App.1987). The voluntariness of a plea under this test depends on: (1) whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases; and if not (2) whether there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997); Ex parte Pool, 738 S.W.2d at 286.

Discussion

The question posed in this case is whether Perez has met his burden to show that: (1) his trial counsel’s failure to inform him that deportation was automatic rather than a possibility was outside the range of competence demanded of attorneys in criminal cases; and (2) but for his trial counsel’s failure to inform him that deportation was automatic, Perez would not have pleaded guilty and would have insisted on going to trial.

Courts have held that while the Sixth Amendment ensures an accused of effective assistance of counsel in criminal prosecutions, this assurance does not extend to “collateral” aspects of the prosecution. Ex parte Morrow, 952 S.W.2d at 536. Counsel’s failure to advise a defendant of the “collateral consequences” does not rise to the level of constitutionally ineffective assistance of counsel. Ex parte Morrow, 952 S.W.2d at 537.

Generally, a guilty plea is considered voluntary if the defendant was made fully aware of the direct consequences of his plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex.Crim.App.1999). It will not be rendered involuntary by lack of knowledge as to some collateral consequence. See id.

A consequence is collateral if it is not a definite, practical consequence of a defendant’s guilty plea. See Ex parte Morrow, 952 S.W.2d at 536. Deportation is generally considered to be a collateral consequence. See, e.g., State v. Jimenez, 987 S.W.2d at 888-89; Ex parte Morrow, 952 S.W.2d at 536; Hernandez v. State, 986 S.W.2d 817, 821 (Tex.App.—Austin 1999, pet. ref'd).

In Hernandez v. State, the defendant made an argument similar to the one asserted by Perez. 986 S.W.2d at 821. In that case, Hernandez contended that “she was incorrectly told that a guilty plea might result in deportation, while in fact federal law makes deportation mandatory upon conviction for controlled substances offense.” Id. The attorney who represented Hernandez testified that “he ‘didn’t know the exact ramifications of the plea’ with regard to appellant’s immigration status, but told appellant before she pleaded guilty that ‘she may be deported’ because of the conviction and advised her to seek the advice of an immigration law expert.” Id. In response to questioning regarding whether her attorney led her to believe that she would most likely be staying in the country after entering the plea, Hernandez responded, “He said that I have a chance, yes.” Id. .

The Austin court of appeals noted the general rule that if a defendant is fully advised of the direct consequences of her plea, her ignorance of a collateral consequence does not render the plea involuntary. See id. The court then noted that deportation is a collateral consequence of a guilty plea. See id. The court held: “In this cause, appellant was not ignorant of the effect her guilty plea would have on her immigration status. By her own admission, she understood before pleading guilty that a conviction might lead to deportation. While appellant may have underestimated the likelihood of deportation, this did not render the guilty plea involuntary.” Id.

The current state of the law, as pronounced in Morrow and Jimenez, dictates the result in this case. Deportation is a collateral consequence of a guilty plea, and trial counsel’s failure to advise Perez of the likelihood of deportation does not rise to the level of constitutionally ineffective assistance of counsel. See Jimenez, 987 S.W.2d at 888-89; Ex parte Morrow, 952 S.W.2d at 537.

Conclusion

The trial court’s judgment is affirmed.


author: Opinion by: KAREN ANGELINI, Justice. STONE, Justice,

text:
    Clifford William CHETWOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00431-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 29, 2000.

      Suzanne M. Kramer, San Antonio, for appellant.
    Alan E. Battaglia, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by: KAREN ANGELINI, Justice.

The trial court revoked Clifford William Chetwood’s community supervision after he pleaded true to the State’s allegations that he violated certain conditions of his probation. Chetwood appeals the revocation on the grounds that he received ineffective assistance of counsel during the revocation hearing, rendering his plea of true involuntary. We affirm the judgment.

Factual & Procedural Background

On February 4, 1997, Clifford William Chetwood pleaded guilty to a driving while intoxicated charge. The trial court assessed his punishment at five years confinement and imposed a $1,000 fine. The trial court, however, suspended his sentence and placed Chetwood on community supervision for five years. On July 21, 1997, the trial court modified the terms and conditions of Chetwood’s probation to include, under condition number 23, six months in the Intensive Supervision Program (ISP). Then, on March 20, 1998, finding that Chetwood failed to abide by the terms and conditions of his community supervision, the trial court adjudicated him as guilty and sentenced him to five years imprisonment in the Texas Department of Criminal Justice, Institutional Division. It is from this decision that Chetwood appeals. In a single issue, Chetwood claims he received ineffective assistance of counsel at the revocation hearing, rendering his plea of true to the State’s allegations involuntary.

Ineffective Assistance of Counsel

A probation revocation hearing constitutes no part of a criminal prosecution. See Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993). Instead, it is an administrative proceeding used as a means to protect society and to rehabilitate lawbreakers. See Hill v. State, 480 S.W.2d 200, 202-203 (Tex.Crim.App.1971). Although such a hearing is administrative in nature, as an extension of the sentencing process, a probationer has the right to be assisted by counsel. See id (citing Mempa v. Rhay, 389 U.S. 128, 135, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) and U.S. Const, amend 6). The right to assistance of counsel includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In assessing the effectiveness of counsel at a probation revocation proceeding, we apply the two-prong test set forth by the Supreme Court in Strickland v. Washington. See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999). This test requires us first to determine whether counsel’s performance was deficient. See id.; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); Jimenez v. State, 804 S.W.2d 334, 338 (Tex.App.-San Antonio 1991, pet. ref'd). Counsel’s performance is deficient when it falls below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812. Once the appellant shows trial counsel’s performance was deficient, he or she must then affirmatively establish that trial counsel’s performance prejudiced the outcome of the case. See id. In other words, we ask whether there is a reasonable probability that the outcome would have been different but for counsel’s deficient performance. See id.

In evaluating the effectiveness of trial counsel, we evaluate his or her representation as a whole and presume that counsel’s conduct falls within the wide range of reasonable professional assistance. See id. at 813; Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App.1986); Paez v. State, 995 S.W.2d 163, 170 (Tex.App.San Antonio 1999, pet. ref'd). An appellant challenging his or her trial counsel’s performance therefore faces a difficult burden and “a substantial risk of failure.” See Thompson, 9 S.W.3d at 813. He or she must prove by a preponderance of the evidence that trial counsel’s performance was ineffective. See Thompson, 9 S.W.3d at 813. Accordingly, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See id. Failure to make such a showing defeats an ineffectiveness claim. See id.

Chetwood claims on appeal that his trial counsel failed to adequately review the condition of community supervision requiring that he attend the ISP and the motion to revoke, which alleged he violated that condition. Specifically, Chetwood points out that the trial court added condition number 23 to his probation terms on July 21, 1997, requiring him to attend the ISP for six months. The probation condition appears as follows: “INTENSIVE SUPERVISION PROGRAM Participate in the Intensive Supervision Program and comply with all rules, regulations and instructions as directed by the Court and/or Supervision Officer. You will report every Monday at 8:00 a.m. or at such time that may be scheduled by the Supervision Officer.” Immediately following the condition is a handwritten notation that says “(6 mos).” The notation does not, however, indicate when the six month period begins and ends. Chetwood argues that the ISP requirement began when the condition was added on July 21, 1997, and expired six months later on January 21, 1998. Chet-wood makes this argument despite the fact that he did not meet the ISP requirement for much of that six month period because he was incarcerated for a separate offense. Chetwood was, in fact, in jail at the time the condition was added on July 21, 1997, and was released from jail in November, 1997.

The State’s motion to revoke probation alleges Chetwood failed to attend the ISP during the months of February and March, 1998. The State argues that Chet-wood’s obligation to attend the ISP began upon his release from jail in November, 1997, and was therefore effective through May of 1998. Chetwood argues that because the condition in question expired in January, 1998, he had no legal obligation to attend ISP in February or March of that year. Chetwood argues that had his trial counsel thoroughly reviewed his conditions of probation and the motion to revoke, he would have discovered that the ISP condition had expired before the dates the State alleged Chetwood failed to appear. Chetwood claims this oversight amounted to ineffective assistance of counsel and that had his trial counsel made this discovery, he would not have advised Chet-wood to plead true to the alleged probation violation. He therefore claims that this uninformed advice rendered his plea of true involuntary.

Both Chetwood’s and the State’s interpretations of the ISP condition of probation are equally plausible. Chetwood’s counsel may have reasonably believed that the ISP condition did not take effect until Chetwood was released from jail in November, 1997. Under these circumstances we cannot conclude that Chetwood’s counsel’s performance was deficient. The record before us does not affirmatively demonstrate ineffective assistance of counsel. Chetwood has therefore failed to rebut the presumption that trial counsel acted reasonably and has not shown ineffective assistance of counsel. Accordingly, we affirm the trial court’s judgment.

Dissenting Opinion by: CATHERINE STONE, Justice.

STONE, Justice,

dissenting.

Because I believe the record establishes that Clifford Chetwood received ineffective assistance of counsel at his probation revocation hearing, I respectfully dissent.

The majority has reasoned that it cannot find that defense counsel’s performance was deficient because “[bjoth Chetwood’s and the State’s interpretations of the ISP condition of probation are equally plausible.” (P4). Faced with two equally plausible interpretations, the majority concludes that counsel could have believed the State’s interpretation, and thus counsel cannot be found ineffective. I disagree.

The two interpretations of the ISP condition are complete opposites, and only one interpretation can be correct. It was trial counsel’s duty to determine the correct interpretation, and advise Chetwood on the basis of the correct interpretation. Neither the record nor relevant case law supports the State’s interpretation of the ISP condition, and Chetwood should have been so advised.

The very basis of Chetwood’s appellate complaint is that the ISP condition was stated in the order simply as a six month requirement, but with no beginning date specified. In the absence of a specified starting date, or other qualifying language, the terms and conditions of an order become effective on the date the order is signed. See State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex Crim.App.l991)(hold-ing that starting date for appellate timetables is date order is signed); In the Interest of Simpson, 932 S.W.2d 674, 677 (Tex.App.-Amarillo 1996, no wi*it)(holding that time period to file motion for new trial begins from date judgment is signed). In the instant case there was no qualifying language noting a different effective date for the ISP. The only notation is a parenthetical “(6 mos”), indicating the duration of the condition, but not the starting date. Under these circumstances, it was not reasonable for trial counsel to assume that the ISP condition was to begin at any time other than who the order was signed.

The State contents that it was reasonable to assume that the ISP condition was to begin at some later date because Chet-wood was incarcerated on an unrelated matter when the order was signed. However, the order imposing the ISP condition included no language indicating that Chet-wood’s period of reporting would be suspended during the period of incarceration. Indeed, the record indicates that the State did not assume that the ISP condition was suspended during Chetwood’s incarceration. Rather, the State filed a Motion to Extend ISP, reciting that the first six-month period of ISP had been completed.

In short, the order imposing ISP must prevail, not the State’s subsequent assertion that the ISP condition “obviously” did not apply while Chetwood was in jail. Under the State’s argument, we would be required to honor an allegation by Chet-wood that the ISP condition did not apply while he was hospitalized; his mother, father, sister, brother, spouse, or child was hospitalized with their final illness; or he suffered from debilitating depression which prevented him from leaving the house. The fact is, any of these “excuses” — from incarceration to debilitating depression — constitute a possible defense to a motion to revoke for failing to report for ISP. They do not, however, constitute an automatic suspension of the ISP reporting requirement.

For these reasons I believe Chetwood received ineffective assistance of counsel, rendering his plea of true involuntary. I therefore dissent.

      . See Tex.Code Crim. P. art. 42.12 § 1 (Vernon Supp.2000)

      . Chetwood points to the "Recommendation for Intensive Supervision Program Extension” motion as evidence that even his probation officer understood that the ISP condition began on July 21, 1997. Chetwood, therefore, concludes that his trial counsel was ineffective in not reaching a similar interpretation. He reaches this conclusion based upon the motion’s language which indicates that he had completed six months in the program. The motion, however, expressly states that “[Chetwood] did not begin reporting to ISP until November 25, 1997 ...” and, accordingly, does not indicate that Chetwood’s interpretation is any more plausible than the State’s.

      . It could be argued that Chetwood indeed completed his full six months’ of ISP-incarceration must surely be the most intensive supervision available.


author: J. BONNER DORSEY, Justice.

text:
    In the Interest of M.A.W. and M.A.W., Children.
    No. 13-00-218-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 5, 2000.

      Juan P. Gonzalez, Douglas E. Mann, Cathy Pope Clark, Corpus Christi, for Appellant.
    Walter D. Bryan, Asst. County Atty., Laura Garza Jimenez, County Atty., Corpus Christi, for Appellee.
    Before Chief Justice SEERDEN and Justices DORSEY and RODRIGUEZ.
   OPINION

J. BONNER DORSEY, Justice.

Appellant, Tomeika Williams, appeals from a judgment terminating her parental rights to her two children, M.A.W. and M.A.W. By three issues appellant asserts that the trial court erred by denying her motion for new trial, by failing to find that termination was in the best interest of the children, and she argues that the trial court had no jurisdiction over the case. We affirm.

I. Procedural History

On August 25, 1999 the Texas Department of Protective and Regulatory Services (the Department) took possession of appellant’s two children in Bexar County, Texas and filed a petition in the 45th District Court of Bexar County, seeking termination of the parent-child relationship. The next day the Department was named temporary sole managing conservator of the children. On September 7, 1999 the 45th District Court granted the Department’s motion to transfer the case to Nueces County, and on September 23, 1999, this case was assigned to the 94th District Court of Nueces County, Judge Jack Hunter presiding. On November 16, 1999, the case was called before Judge Carl Lewis, presiding judge of County Court at Law No. Five of Nueces County, for consideration of a service plan. At this hearing appellant signed an Affidavit of Voluntary Relinquishment of Parental Rights. By signing this affidavit appellant indicated that she was freely, voluntarily, and permanently relinquishing all of her parental rights and duties concerning the two children to the Department. Judge Lewis accepted the affidavit, ordered the termination of appellant’s parental rights with respect to the two children, and ordered that the Department be named as their managing conservator.

On December 6, 1999 a decree of termination was signed in this case. On December 9, 1999 Judge Hunter signed an order transferring the case from the 94th District Court to County Court at Law No. Five.

II. Jurisdiction

By her first issue appellant asserts that because the case was not transferred to County Court at Law No. Five until after the termination decree was signed, Judge Levas did not have jurisdiction over the case when he terminated her parental rights, or at the time the decree was signed. She argues that because Judge Lewis did not have jurisdiction over her case he had no authority to terminate her parental rights. We disagree.

Effective September 1, 1999, the Texas Legislature created County Court at Law No. Five and gave it jurisdiction of “any proceeding involving an order relating to a child in the possession or custody of the Department of Protective and Regulatory Services.” Tex.Govt.Code Ann. § 25.1802(r)(2) (Vernon Supp.2000). When Judge Lewis heard this case, the Department was seeking the termination of the parent-child relationship. It had taken possession of the children and was named their temporary sole managing conservator. Because the proceedings before Judge Lewis involved an order relating to children in the possession or custody of the Department, Judge Lewis as the judge of County Court at Law No. Five had jurisdiction to hear this case.

The next question is whether Judge Lewis’s termination of appellant’s parental rights was void due to the fact that the case was not transferred to his court until after the termination decree was signed. Appellant failed to object on the basis that the case had not been transferred to County Court at Law No. Five and, therefore, has not preserved this issue for our review. Tex.R.App.P. 33.1. However even if appellant had objected on this basis we conclude that Judge Lewis had the authority to terminate appellant’s parental rights even though the case had not been transferred to him.

Section 74.094(a) of the Texas Government code provides that:

A district or statutory county court judge may hear and determine a matter pending in any district or statutory county court in the county regardless of whether the matter is preliminary or final or whether there is a judgment in the matter. The judge may sign a judgment or order in any of the courts regardless of ivhether the ease is trans-ferirá. The judgment, order, or action is valid and binding as if the case were pending in the court of the judge who acts in the matter....

Tex.Gov’t Code Ann. § 74.094(a) (Vernon Supp.2000) (emphasis added). In Camacho v. Samaniego, 831 S.W.2d 804 (Tex.1992) the court in its discussion of section 74.094(a) stated that “within a county, district and statutory county court judges may exchange benches, sign a judgment or order in another court without transferring the case, and be subject to assignment of any trial or proceeding by the local administrative judge.” Id. at 811. Accordingly section 74.094(a) did not require the 94th District Court to transfer the case to County Court at Law No. Five before Judge Lewis could terminate appellant’s parental rights. See Camacho, 831 S.W.2d at 811.

By this same issue appellant complains that the termination decree was not signed by either Judge Lewis or Judge Hunter. The decree appears to be signed by Judge Manuel Banales, presiding judge of the 105th District Court of Nueces County. Because district and statutory county court judges may sign a judgment or order in another court without transferring the case we conclude that Judge Banales had the authority to sign the decree. See Camacho, 831 S.W.2d at 811.

We hold that Judge Lewis had the authority to terminate appellant’s parental rights and that his decision to do so is not void. We overrule the first issue.

III. Findings Under Section 161.001

By her second issue appellant argues that the trial court failed to make any findings that termination of her parental rights was in the best interest of the children. Section 161.001(1) of the Texas Family Code provides that in cases like the one before us involving an affidavit of relinquishment, the trial court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has: “(K) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter; and (2) that termination is in the best interest of the child.” Tex.Fam. Code Ann. § 161.001(1)(K) & (2) (Vernon Supp.2000).

In the instant case the termination decree stated in relevant part that the court “finds by clear and convincing evidence” that pursuant to section 161.001(1) of the Texas Family Code that appellant “executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights.” The decree also stated that the court “finds based upon clear and convincing evidence presented in trial” that “termination of the parent-child relationship between ... [appellant] and the children ... [M.A.W. and M.A.W.], is in the best interest of the children.” We hold that this language complies with the requirements of section 161.001 and constitutes a finding that termination of appellant’s parental rights was in the best interest of the children. We overrule the second issue.

IV. Motion For New Trial

By her third issue appellant asserts that the trial court erred (1) by accepting her affidavit of relinquishment, and (2) by failing to grant her motion for new trial to revoke the affidavit because she signed it under duress and without proper understanding. Section 161.211(c) of the Texas Family Code provides that “A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights ... is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.” Tex.Fam.Code Ann. § 161.211(c) (Vernon Supp.2000). In Neal v. Texas Dep’t of Human Servs., 814 S.W.2d 216 (TexApp. — San Antonio 1991, writ denied) the court stated that “[A]n involuntarily executed affidavit is a complete defense to a termination suit or decree based solely upon a finding under section [161.001(1)(K) ] of the Family Code.” Id. at 219.

In the instant case the evidence showed that appellant did not make any claim of duress, overreaching, coercion, or fraud at the time of the relinquishment or at the motion for new trial. At the hearing on the motion for new trial appellant’s testimony was that when she signed the affidavit of relinquishment she believed that it was in the best interest of the children to relinquish her rights to them. Appellant knew what she was doing when she signed the affidavit and understood that the affidavit was irrevocable. Appellant indicated that she had changed her mind and wanted her children returned to her. This evidence does not show that appellant executed the affidavit due to fraud, duress, coercion, or that she involuntarily executed the affidavit. We hold that the trial court did not err by accepting her affidavit and overruling the motion for new trial. We overrule the third issue.

We affirm the trial court’s judgment.

      . We point out that the Camacho Court also interpreted section 74.094(a) as "allowing a statutory county court judge to hear, determine, and sign a judgment in a matter pending in district court outside his court’s jurisdiction without transferring the case.” Camacho, 831 S.W.2d at 811.