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In=20 The For=20 The
FREDERICK DEWAYNNE=20
WALKER, Appellant TEXAS =
DEPARTMENT OF=20
FAMILY AND PROTECTIVE SERVICES, Appellee
On =
Appeal from the=20
314th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2006-06952J
On July 19, 2006, Walker's =
wife,=20
Lauressa, 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=20
made a referral to DFPS. Lauressa admitted to hospital staff that =
she had=20
used cocaine as recently as three days before W.J.W. was born, and =
the=20
staff reported to DFPS that Walker had appeared to be intoxicated =
when he=20
arrived at the hospital. Neither Walker nor Lauressa had any=20
identification, money, or paperwork on them. When questioned by =
the DFPS=20
caseworker at the hospital, Walker admitted that he had used drugs =
in the=20
past and that he and Lauressa had three older children who were =
already in=20
CPS custody in Florida. The DFPS caseworker also noted that Walker =
and=20
Lauressa were homeless. Based on evidence that (1) both =
Lauressa=20
and W.J.W. tested positive for cocaine at W.J.W.'s birth, (2) the =
parents=20
were homeless, and (3) both parents had previous criminal, drug, =
and CPS=20
histories, DFPS requested to be named W.J.W.'s sole managing =
conservator.=20
W.J.W. was then placed in a foster home. On August 3, 2006, the =
court=20
signed an order requiring Walker to comply with each requirement =
set out=20
in the DFPS service plan during the pendency of the suit, pursuant =
to=20
section 263.106 of the Texas Family Code. On January 9, 2007, Walker =
signed a=20
Family Service Plan requiring him to attend parenting classes, to =
submit=20
to random drug tests, to receive drug treatment, to maintain a =
stable=20
environment, to maintain contact with W.J.W. on a weekly basis, to =
maintain suitable housing, to refrain from criminal activity, and =
to=20
follow the recommendations of service providers. A DFPS caseworker =
explained the plan to Walker and told him that his parental rights =
to=20
W.J.W. could be terminated if he did not comply. Walker stated to =
the=20
worker that he understood the plan and that he would enroll in a=20
rehabilitation program. In April of 2007, DFPS filed a =
permanency=20
progress report with the court, stating that Walker had not =
completed any=20
services suggested by DFPS and had not made progress toward =
mitigating his=20
parental termination action. The report also indicated W.J.W.'s =
current=20
placement was a safe, stable, and nurturing environment and =
recommended=20
that the parental rights of Walker and Lauressa be terminated. =
About a=20
month after the April permanency progress report was filed, Walker =
tested=20
positive for cocaine and marijuana. At trial, W.J.W.'s caseworker=20
testified that Walker had not visited W.J.W. since the day he was=20
born. During his testimony, Walker =
stated that=20
he was currently living with his sister in Houston and that she =
had agreed=20
to let W.J.W. live at her residence, too, if Walker was allowed to =
keep=20
custody. When asked why DFPS had not done a home study on his =
sister's=20
house, Walker stated, "she didn't--they--it was like she told me =
that it=20
would be best for me just to relinquish my rights." He also =
testified that=20
he had been clean for eight months before trial, although he had =
tested=20
positive for marijuana and cocaine only two months earlier. When =
asked=20
whether he knew that his wife had been using cocaine before W.J.W. =
was=20
born, Walker gave contradictory answers. At the close of trial, the =
court signed a=20
judgment terminating Walker's parent-child relationship with =
W.J.W. and=20
appointing DFPS as W.J.W.'s sole managing conservator. =
Sufficiency=20
of the Evidence In his first three issues, =
Walker argues=20
that the evidence is both legally and factually insufficient to =
support=20
the trial court's termination of his parental rights pursuant to =
Texas=20
Family Code Section 161.001(1)(E), Section 161.001(1)(O), and =
Section=20
161.001(2). Standard =
of=20
Review Because=20
parental-rights termination "is complete, final, irrevocable, and =
divests=20
for all time that natural right . . . [,] the evidence in support =
of=20
termination must be clear and convincing before a court may =
involuntarily=20
terminate a parent's rights." Holick v. Smith, 685 S.W.2d =
18, 20=20
(Tex. 1985) (citing Santosky v. Kramer, 455 U.S. 745, =
747-48, 102=20
S. Ct. 1388, 1391-92 (1982)). When=20
determining legal sufficiency, we review "all the evidence in the =
light=20
most favorable to the finding In=20
determining factual sufficiency under the clear-and-convincing =
burden, we=20
must consider whether the evidence is sufficient to produce a firm =
belief=20
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,=20
25-26 (Tex. 2002). We consider whether disputed evidence is such =
that a=20
reasonable factfinder could not have resolved that disputed =
evidence in=20
favor of its finding. J.F.C., 96 S.W.3d at 266. The natural=20
rights that exist between parents and their children are of =
constitutional=20
dimension. Holick, 685 S.W.2d at 20. Therefore, =
termination=20
proceedings should be strictly scrutinized, and the involuntary=20
termination statutes should be strictly construed in favor of the =
parent.=20
Id. at 20-21. However, "[j]ust as it is imperative for =
courts to=20
recognize the constitutional underpinnings of the parent-child=20
relationship, it is also essential that emotional and physical =
interests=20
of the child not be sacrificed merely to preserve that right."=20
C.H., 89 S.W.3d at 26. For=20
parental rights to be involuntarily terminated, it must be found =
by clear=20
and convincing evidence that the parent engaged in conduct set out =
in=20
subsection 161.001(1) and that termination would be in the child's =
best=20
interest pursuant to subsection 161.001(2). Tex. Fam. Code Ann. =
=A7 161.001=20
(Vernon 2008). Grounds =
for=20
Termination In his first three issues, =
Walker=20
challenges the legal and factual sufficiency of these=20
findings. A.=20
Endangerment Legal =
Sufficiency We begin by considering the =
legal=20
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=20
trial court must find by clear and convincing evidence that the =
parent=20
"engaged in conduct or knowingly placed the child with persons who =
engaged=20
in conduct which endangers the physical or emotional well-being of =
the=20
child." Tex. Fam. Code. Ann. =A7 161.001(1)(E). Mere imprisonment will not, =
standing=20
alone, constitute engaging in conduct that endangers the physical =
or=20
emotional well-being of a child. See Boyd, 727 S.W.2d at =
533.=20
However, when all of the evidence, including imprisonment, shows a =
course=20
of conduct that has the effect of endangering the physical or =
emotional=20
well-being of the child, a finding under section 161.001(1)(E) is=20
supportable. Id. at 533-34. If the imprisonment of the =
parent=20
displays a voluntary, deliberate and conscious course of conduct, =
it=20
qualifies as conduct that endangers the child. See Avery, =
963=20
S.W.2d at 553. The record reflects Walker's=20
incarceration on multiple occasions both before and after W.J.W.'s =
birth:=20
driving while intoxicated (30 days); criminal assault against his =
wife (90=20
days); criminal assault against his mother-in-law (20 days); =
delivery of=20
marijuana (90 days); and interfering with public duties (5 days). =
Even=20
though three of these offenses occurred before W.J.W. was born, =
they can=20
still be considered as part of a voluntary, deliberate, and =
conscious=20
course of conduct that had the effect of endangering W.J.W. =
See In re=20
R.W., 129 S.W.3d 732, 738 (Tex. App.--Fort Worth 2004, pet. =
denied);=20
Harris v. Herbers, 838 S.W.2d 938, 942-43 (Tex. =
App.--Houston=20
[1st Dist.] 1992, no writ). Conduct that routinely subjects a =
child to the=20
probability that the child will be left alone because a parent is =
jailed=20
endangers both the physical and emotional well-being of the child. =
See=20
In re S.D., 980 S.W.2d 758, 763 (Tex. App.--San Antonio 1998, =
pet.=20
denied). Walker was arrested and jailed =
twice for=20
criminal assault against his wife and his mother-in-law. Abusive =
and=20
violent criminal conduct by a parent can produce an environment =
that=20
endangers the well-being of a child. In re B.R., 822 =
S.W.2d 103,=20
106 (Tex. App.--Tyler 1991, writ denied). Evidence as to how a =
parent has=20
treated another child or spouse is relevant regarding whether a =
course of=20
conduct under section 161.001(1)(E) has been established. In =
re=20
D.T., 34 S.W.3d 625, 636-37 (Tex. App.-Fort Worth 2000, pet. =
denied).=20
Evidence that a person has engaged in abusive conduct in the past =
permits=20
an inference that the person will continue violent behavior in the =
future. Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, =
824=20
(Tex. App.--Fort Worth 2007, no pet.); In re M.G.M., 163 =
S.W.3d=20
191, 202 (Tex. App.--Beaumont 2005, no pet.). The trial court heard evidence =
that=20
Walker had tested positive for cocaine and marijuana after he had =
signed a=20
Child Protective Services Family Service Plan and therefore knew =
that his=20
parental rights were in jeopardy and that Walker had a prior =
history of=20
drug use that included an arrest for delivery of marijuana. =
Because it=20
exposes the child to the possibility that the parent may be =
impaired or=20
imprisoned, illegal drug use may support termination under section =
161.001(1)(E). See Vasquez v. Tex. Dep't of Protective &=20
Regulatory Servs., 190 S.W.3d 189, 195-96 (Tex. App.--Houston =
[1st=20
Dist.] 2005, pet. denied) (terminating parental rights despite =
there being=20
no direct evidence of parent's continued drug use actually =
injuring=20
child). Evidence of narcotics use and its effect on a parent's =
life and=20
ability to parent may establish that the parent has engaged in an=20
endangering course of conduct. See Toliver v. Tex. Dep't of =
Family=20
& Protective Servs., 217 S.W.3d 85, 98 (Tex. App.-Houston =
[1st=20
Dist.] 2006, no pet.) (citing In re R.W., 129 S.W.3d at=20
739). The evidence presented with =
respect to=20
Walker's pattern of crime, imprisonment, drug use, and violence =
against=20
family members demonstrates a deliberate course of conduct from =
which a=20
reasonable trier of fact could have found that Walker endangered =
W.J.W.'s=20
emotional and physical well-being. When viewed in the light most =
favorable=20
to the judgment, we hold that the evidence was legally sufficient =
to=20
support the trial court's finding that Walker engaged in a =
deliberate=20
course of conduct that endangered W.J.W. under section =
161.001(1)(E).=20
Factual =
Sufficiency B. Failure to Comply =
with Court=20
Order Because we conclude that the =
evidence is=20
both legally and factually sufficient to support the trial court's =
finding=20
under section 161.001(1)(E), and because a finding as to any one =
of the=20
acts or omissions enumerated in section 161.001(1) is sufficient =
to=20
support termination, we need not address Walker's second issue =
challenging=20
the trial court's findings under section 161.001(1)(O). However, =
we must=20
still determine whether the evidence was sufficient to support the =
trial=20
court's finding that termination was in W.J.W.'s best interest, =
pursuant=20
to section 161.001(2). C. Best Interest of the=20
Child In his third issue, Walker =
challenges the=20
legal and factual sufficiency of the A strong presumption exists =
that a=20
child's best interests are served by maintaining the parent-child=20
relationship. In re L.M., 104 S.W.3d 642, 647 (Tex. =
App.--Houston=20
[1st Dist.] 2003, no pet.). The same evidence of acts or omissions =
used to=20
establish grounds for termination under section 161.001(1) may be=20
probative in determining the best interests of the child. In =
re=20
C.H., 89 S.W.3d 17, 28 (Tex. 2002); L.M., 104 S.W.3d =
at 647.=20
In=20
Holley v. Adams, the Texas Supreme Court provided a =
nonexclusive=20
list of factors that the trier of fact in a termination case may =
use in=20
determining the best interest of the child. 544 S.W.2d 367, 371-72 =
(Tex.=20
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=20
emotional and physical danger to the child now and in the future; =
(4) the=20
parental abilities of the individuals seeking custody; (5) the =
programs=20
available to assist these individuals to promote the best interest =
of the=20
child; (6) the plans for the child by these individuals or by the =
agency=20
seeking custody; (7) the stability of the home or proposed =
placement; (8)=20
the acts or omissions of the parent that may indicate that the =
existing=20
parent-child relationship is not a proper one; and (9) any excuse =
for the=20
acts or omissions of the parent. Id. The desires of the =
child=20
At trial, W.J.W. was only one =
year old=20
and, thus, too young to express his desires. However, there is no =
reason=20
to believe that W.J.W. has any conscious knowledge of Walker, as =
he has=20
not seen W.J.W. since the day that he was born. The child's physical and =
emotional=20
needs, now and in the future The emotional and physical =
danger to=20
the child, now and in the future The evidence regarding =
endangerment, discussed in support of the trial court's finding =
under=20
section 161.001(1)(E) above, is also probative of a finding as to =
danger=20
in determining the child's best interest. See C.H., 89 =
S.W.3d at=20
28. The parental abilities of =
those=20
seeking custody In July 2004, Walker was =
arrested in=20
Florida for child neglect because he left his oldest three =
children in a=20
car while he was out looking for their mother. These charges were =
dropped=20
and the Florida CPS report was closed because the Department was =
unable to=20
locate the family. A year later, Walker's three children were =
taken into=20
custody by Florida's CPS Department after it received a report =
from=20
Lauressa's relatives that the family was living in a car, =
traveling from=20
state to state, and the parents were using drugs with children in =
the back=20
seat. It was reported that neither parent worked and that the =
children had=20
not been seen in school for over a year. The three children were =
then=20
placed in the care of Lauressa's mother, Lisa Hale, in Florida. =
Walker=20
showed no interest in caring for W.J.W. and had not seen him since =
the day=20
the child was born. This, when considered with Walker's two =
criminal=20
assault charges against his family members and his criminal and =
drug=20
history, is sufficient to show Walker's lack of parental=20
abilities. Programs available to =
assist parents=20
in promoting the child's best interests There was no evidence =
presented=20
at trial that Walker has participated in any of the programs =
outlined in=20
the Family Service Plan. Walker told his DFPS caseworker that he =
was=20
enrolled in a rehabilitation program, but when the caseworker =
called the=20
number, it turned out to be a shelter and not a rehabilitation =
center.=20
Plans for the child by the =
individual=20
or agency seeking custody Although Walker testified that =
his sister=20
was willing to allow W.J.W. to live in her house, he admitted upon =
further=20
questioning that his sister also told him that it would be best if =
he=20
would just relinquish his rights. DFPS planned for W.J.W. to be =
adopted.=20
W.J.W.'s current caregiver had expressed an interest in adopting =
him and=20
testified that she loved him and wished to provide a safe and =
loving=20
environment for him. The stability of the home =
or proposed=20
placement The DFPS caseworker testified =
that W.J.W.=20
was thriving in his current placement and was bonded to his =
current=20
caregivers. She said that the placement home seems safe and =
appropriate=20
and that all of W.J.W.'s needs were being met and would be met in =
the=20
future. Parent's acts or omissions =
that=20
indicate the current parent-child relationship is improper and =
parent's=20
excuses for those acts or omissions Currently, Walker and W.J.W. =
have no=20
parent-child relationship. Walker has not seen his son at any =
scheduled=20
visitations arranged by DFPS. Walker apparently did show up for =
one visit,=20
but a miscommunication with the caseworker about the date =
prevented him=20
from seeing the child. The factfinder could reasonably have =
concluded that=20
this one failed attempt did not excuse Walker's failure to visit =
his son=20
over an entire year. We overrule =
Walker's=20
third issue. Having done so, we need not address =
his=20
fourth issue, which requests that we reverse the appointment of =
DFPS as=20
sole managing conservator should we conclude that the trial court =
erred in=20
terminating his parental rights. We discuss Walker's fifth and =
sixth=20
issues together. In his fifth issue, Walker contends that Sections =
263.405(b) and (i) of the Texas Family Code violate the separation =
of=20
powers provision of the Texas Constitution and deny him due =
process of law=20
because their operation prevented him from preserving a challenge =
of=20
ineffective assistance of counsel. We may examine the unpreserved =
sixth=20
issue in order to determine the validity of Walker's due process=20
challenge. The Texas Supreme Court presumes that the rules =
governing=20
preservation of error in civil cases, including=20
parental-rights-termination cases, comport with due process of =
law.=20
See In re B.L.D., 113 S.W.3d 340, 352-54 (Tex. 2003), =
cert.=20
denied, 124 S. Ct. 1674 (2004). However, the Texas Supreme =
Court has=20
also acknowledged that, in a given parental-rights-termination =
case, a=20
particular "calibration" of the procedural due process factors =
outlined by=20
the United States Supreme Court in Mathews v. Eldridge Applying the principles set out =
in the=20
cases discussed and cited above, we determine that we must examine =
Walker's unpreserved complaint. Although the State certainly has =
an=20
interest in ensuring that parental-rights-termination proceedings =
are=20
expeditious, final, and governed by consistently applied =
procedural rules,=20
the costs to both the parent and the child of an inaccurate, =
unjust=20
decision outweigh the benefits of preserving judicial efficiency. =
Further,=20
as noted by the Texas Supreme Court in M.S. and the =
United States=20
Supreme Court in Santosky v. Kramer, the State has an =
interest in=20
protecting the welfare of the child, and that interest must =
initially=20
manifest itself by working toward preserving the familial bond =
rather than=20
severing it. M.S., 115 S.W.3d at 548; Santosky, =
455 U.S.=20
745, 766-67, 102 S. Ct. 1388, 1401-02 (1982). "'[T]he State =
registers no=20
gain towards its declared goals when it separates children from =
the=20
custody of fit parents.'" Santosky, 455 U.S. at 767, 102 =
S. Ct.=20
at 1402 (quoting Stanley v. Illinois, 405 U.S. 645, 652, =
92 S.=20
Ct. 1208, 1213 (1972)). Thus, the State's interest in meeting its =
ultimate=20
goal of ensuring the safety and stability of the child is best =
served by=20
procedures that promote an accurate determination of whether the =
natural=20
parents can and will provide a normal home. See M.S., 115 =
S.W.3d=20
at 549; Santosky, 455 U.S. at 767, 102 S. Ct. at 1402. To =
that=20
end, it is important to protect the Constitutional right to =
effective=20
counsel of a parent facing the loss of his or her children. =
In this case, Walker, who is =
indigent,=20
was represented by a court-appointed lawyer at trial and is being=20
represented by a different court-appointed lawyer on appeal. Given =
this=20
situation, we note that, even under the most favorable of =
circumstances,=20
it would be extremely difficult for the appellate lawyer to =
procure a=20
trial transcript and clerk's record, familiarize himself with the =
case,=20
evaluate the performance of trial counsel, and file a statement of =
appellate points with the court within the fifteen-day window =
provided by=20
the statute. Failure to meet this swift deadline would bar the =
appellate=20
court from considering what may be a valid challenge of =
ineffective=20
assistance of counsel. We conclude that, in this case, the =
procedural rule=20
must give way out of concern for due process of law. See =
B.L.D.,=20
113 S.W.3d at 352-54; M.S., 115 S.W.3d at 546-50;=20
S.A.S., 200 S.W.3d at 828-30. Accordingly, we now examine =
the=20
merits of Walker's challenge of ineffective assistance of counsel. =
Standard =
of Review:=20
Ineffective Assistance To successfully assert a =
challenge of=20
ineffective assistance of counsel, a defendant in a=20
parental-rights-termination case must show that his or her =
counsel's=20
performance was deficient and that this deficiency prejudiced the=20
defense. In re J.P.B., 180 S.W.3d 570, 574 (Tex. =
2005)=20
(citing In re M.S., 115 S.W.3d at 545) (citing =
Strickland v.=20
Washington, 466 U.S. 668, 687-92, 104 S. Ct. 2052, 2063-67 =
(1984))).=20
This standard requires a showing that counsel's errors were =
serious enough=20
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=20
strong presumption that counsel's conduct falls within the wide =
range of=20
reasonably professional assistance, including the possibility that =
counsel's decision was based on strategy. M.S., 115 =
S.W.3d at 549=20
(citing Strickland, 466 U.S. at 689, 104 S. Ct. at=20
2065). In deciding whether counsel's =
performance=20
in a particular case is deficient, we must take into account all =
of the=20
circumstances surrounding the case and focus primarily on whether =
counsel=20
performed in a "reasonably effective" manner. M.S., 115 =
S.W.3d at=20
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=20
attorney would have engaged in it" that the challenged conduct =
will=20
constitute ineffective assistance. M.S., 115 S.W.3d at =
545=20
(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. =
App.=20
2001)). If a reviewing court concludes =
that the=20
conduct of Walker's counsel was deficient, the court must then =
determine=20
if that conduct was prejudicial to him by assessing whether =
"'there is a=20
reasonable probability that, but for counsel's unprofessional =
error(s),=20
the result of the proceeding would have been different.'"=20
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see =
also=20
M.S., 115 S.W.3d at 550; Garcia, 57 S.W.3d at 440.=20
Strickland's appellate record requirement applies to =
ineffective=20
assistance challenges in termination cases: "'An allegation of =
ineffective=20
assistance must be firmly founded in the record, and the record =
must=20
affirmatively demonstrate the alleged ineffectiveness.'" In re =
K.K., 180 S.W.3d 681, 685 (Tex. App.--Waco 2005, no pet.); =
see=20
also Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. =
Crim.=20
App. 1999). Failure to make the required showing of either =
deficient=20
performance or sufficient prejudice defeats an ineffectiveness =
challenge.=20
See Thompson, 9 S.W.3d at 813. Walker presented his=20
ineffective-assistance challenge to the trial court in a =
supplemental=20
motion for new trial, and the trial court overruled Walker's =
complaint by=20
denying his supplemental motion for new trial. We therefore =
analyze=20
Walker's ineffective-assistance-of-counsel issue as a challenge to =
the=20
denial of his supplemental motion for new trial. Biagas v. =
State,=20
177 S.W.3d 161, 170 (Tex. App.--Houston [1st Dist.] 2005, pet. =
ref'd)=20
(citing Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. =
App.=20
2004), superseded in part on other grounds by Tex. R. =
App. P.=20
21.8(b)). In such circumstances, we review the Strickland =
test=20
through an abuse of discretion standard. Id. Thus, we =
reverse=20
only if the trial court's decision is arbitrary or unreasonable, =
viewing=20
the evidence in the light most favorable to the ruling. =
Id;=20
see also Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. =
2007)=20
("[A] trial court abuses its discretion in denying a motion for =
new trial=20
only when no reasonable view of the record could support the trial =
court's=20
ruling."). In reviewing a trial court's ruling on a motion for new =
trial,=20
we give almost total deference to the trial court's determination =
of=20
historical facts that are supported by the record, especially when =
the=20
trial court's findings are based on an evaluation of credibility =
and=20
demeanor. Charles, 146 S.W.3d at 206; Guzman v. =
State,=20
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We may =
also rely=20
upon implied findings of fact that are supported by the record to =
uphold=20
the trial court's ruling even when the trial court is not faced =
with=20
expressly conflicting affidavits or testimony. Charles, =
146=20
S.W.3d at 206. Next, Walker argues that his =
attorney=20
failed to make hearsay objections at trial and to properly =
cross-examine=20
the witnesses. However, Walker's appellate counsel did not =
question his=20
trial counsel regarding these omissions during the motion for new =
trial=20
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=20
objecting to certain testimony and evidence, we cannot conclude =
that trial=20
counsel's performance was deficient. Walker has not rebutted the=20
presumption that trial counsel made his decisions in the exercise =
of=20
reasonable professional judgment. Finally, Walker argues that he =
received=20
ineffective assistance of counsel because, he alleges, neither of =
his two=20
attorneys conducted a pretrial investigation. Walker attached an =
affidavit=20
to his supplemental motion for new trial asserting that the =
attorneys did=20
not return several phone messages left by Walker, interview any =
witnesses,=20
inform Walker of his rights and obligations, or familiarize =
themselves=20
with his case before trial. The affidavit also stated that such=20
investigation would have "brought out information and testimony =
that would=20
have directly contradicted and refuted the evidence against =
[Walker]."=20
Walker reiterated many of these statements on the stand at the =
motion for=20
new trial hearing and argues that, at the hearing on his motion =
for new=20
trial, his affidavit and testimony were largely uncontroverted by =
the=20
attorneys who represented him. After reviewing the entire =
record in this=20
case, we conclude that it was not unreasonable for the trial court =
to=20
discredit Walker's testimony regarding the investigative efforts =
and=20
conduct of his attorneys and to find that he received effective =
counsel. A=20
trial court sitting as the trier of fact is not required to accept =
as true=20
the statements made in an affidavit, even if that affidavit is=20
uncontradicted. See Biagas, 177 S.W.3d at 171; =
Charles, 146=20
S.W.3d at 213 (holding that, although affidavits averring that =
trial=20
counsel had not conducted any independent investigation into =
voluntariness=20
of defendant's confession were uncontroverted, trial court did not =
abuse=20
discretion in denying motion for new trial on grounds of =
ineffective=20
assistance of counsel). The same is true of live testimony. =
See State=20
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (citing=20
Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. =
1987));=20
see also Nelson v. Najm, 127 S.W.3d 170, 174 (Tex. =
App.--Houston=20
[1st Dist.] 2003, pet. denied) (applying identical rule in civil =
bench=20
proceeding--trial court may "take into consideration all the facts =
and=20
surrounding circumstances in connection with the testimony of each =
witness=20
and accept or reject all or any part of that testimony"). Further, =
the=20
uncontradicted testimony of an interested witness cannot be =
considered as=20
doing more than raising an issue of fact to be decided by the =
trial court=20
if there are circumstances in evidence tending to discredit or =
impeach the=20
interested witness's testimony. See Anchor Cas. Co. v. =
Bowers,=20
393 S.W.2d 168, 169 (Tex. 1965). The record in this case =
discredits and=20
impeaches the veracity of Walker's testimony. The trial court was =
well=20
aware at the time of Walker's testimony of his history of drug =
use, crime,=20
and imprisonment and the fact that Walker had never even visited =
W.J.W.=20
The record also reflects that, on at least one occasion during the =
termination trial, Walker's testimony under oath was in direct=20
contradiction of the facts established by the court records =
admitted into=20
evidence. While under oath at his termination trial, Walker =
testified that=20
he had last used illegal drugs "maybe like eight months" before =
the trial.=20
However, in the same proceeding, the trial court received evidence =
that=20
Walker had in fact failed a court-ordered drug test just over two =
months=20
before the trial. In=20
addition, the transcript of Walker's direct examination by his =
counsel=20
discredits Walker's claims that his counsel conducted no pretrial=20
investigation of this matter. Although relatively brief, the =
examination=20
is precise and focused on eliciting a series of facts that could =
be=20
helpful to Walker's claims. With the exception of Walker's =
testimony=20
regarding his contacts with CPS and past drug use, the elicited =
facts were=20
largely uncontradicted on cross-examination by DFPS. Counsel asked =
Walker=20
about the alleged failure of CPS to communicate with him during =
the=20
process; the fact that he was currently living with his sister, =
who was=20
employed, would help take care of W.J.W., and was willing to =
undergo a=20
homestudy for her suitability to be involved in W.J.W.'s life; =
Walker's=20
employment skills and job prospects; and Walker's alleged =
involvement in=20
the lives of his other four children. These facts were elicited =
from=20
Walker despite the fact that Walker was not even present at the =
beginning=20
of the termination trial and did not appear until the end of the =
trial,=20
right before his testimony. The record reflects that, after Walker =
arrived=20
in court, there was only a short recess before he was placed on =
the stand=20
to testify. Under these circumstances, we conclude that these =
questions=20
illustrate counsel's familiarity with the material facts of the =
case and=20
discredit Walker's allegations that his counsel did not conduct =
any=20
pretrial investigation in this matter. Even if, as=20
the dissent urges, we give no deference to the trial court's =
determination=20
of historical facts, Walker's challenge of ineffective assistance =
of=20
counsel still fails. The record simply does not affirmatively show =
a=20
reasonable probability that, but for the conduct of Walker's =
counsel, "the=20
result of the proceeding would have been different." =
Strickland,=20
466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d =
at 812.=20
When asked, at the hearing on his motion for new trial, what =
evidence=20
proffered by DFPS he could have refuted had his counsel conducted =
an=20
adequate pretrial investigation, Walker was not able to identify =
any=20
evidence that had not been produced at the termination trial that =
would=20
have changed its outcome. Having=20
examined the record and found Walker's ineffective assistance of =
counsel=20
challenge to be without merit, we do not reach his fifth issue =
because=20
Walker cannot show that the operation of the challenged statute =
caused him=20
harm. See CenterPoint Energy Houston Elec., LLC v. Gulf Coast=20
Coalition of Cities, 252 S.W.3d 1, 31 (Tex. App.--Austin =
2008, no=20
pet.) ("[I]n making a due-process claim, a party must show that a=20
due-process violation occurred and that he or she was harmed by =
that=20
violation.") (citing Hammack v. Public Util. Comm'n, 131 =
S.W.3d=20
713, 730 (Tex. App.--Austin, pet. denied)) (citing Vandygriff =
v. First=20
Sav. & Loan, Etc., 617 S.W.2d 669, 673 (Tex. 1981)).=20
Additionally, our disposition of Walker's sixth issue effectively =
disposed=20
of the case. Texas courts will not pass on the constitutionality =
of a=20
statute when the case may be decided on independent, alternative=20
grounds.
George C. Hanks, Jr. Justice Panel consists of Justices =
Jennings,=20
Hanks, and Bland.
Justice Jennings,=20
dissenting.
1. The challenged sections require a party =
appealing=20
the termination of parental rights to file a statement of =
appellate points=20
with the trial court. Issues omitted from the statement are not =
preserved=20
for appeal. The statement of appellate points must be filed with =
the trial=20
court no later than the 15th day after the signing of an order =
terminating=20
parental rights.=20
2. In Eldridge, the United States =
Supreme=20
Court held that identifying the requirements of procedural due =
process=20
generally requires consideration of: (1) the private interest =
affected by=20
the proceeding or official action; (2) the risk of an erroneous=20
deprivation of that interest through the procedures used; and (3) =
the=20
government's interest, including the function involved and the =
fiscal and=20
administrative burdens that the additional or substitute =
procedural=20
requirement would entail. See 424 U.S.319, 335, 96 S. Ct. =
893,=20
903 (1976).=20
3. We note that, at the hearing, Walker's =
trial=20
attorney neither controverted nor admitted as true the =
statements=20
in Walker's affidavit. After testifying as the first witness in =
the=20
hearing on the motion for new trial, Walker's counsel testified as =
follows: Q: All right. I understand. Is =
there any=20
other evidence that you would like to offer to the Court in terms =
of or in=20
contradiction to the affidavit that Mr. Walker has? A: No. There was no cross-examination =
of this=20
testimony.=20
4. The results of the drug test establish =
that Walker=20
was under the influence of drugs on the day of his last court =
appearance=20
before his trial. Walker was represented by counsel at this =
hearing.=20
5. Walker later testified in the hearing on =
the motion=20
for new trial that "just because you get convicted of assault =
doesn't mean=20
that you assaulted anybody." The record also reflects that when =
asked=20
questions that could be harmful to his case, for example regarding =
his=20
awareness that his wife was using cocaine and his current =
employment=20
status, Walker was evasive in his responses.=20
6. Although the dissent is critical of the =
brevity of=20
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=20
last court appearance, and his late arrival at the termination =
trial, we=20
cannot conclude that Walker's counsel's decision to limit Walker's =
time on=20
the stand was not a valid strategic decision.=20
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