COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-099-CV
IN THE INTEREST OF
C.R., E.R., AND R.R., JR., CHILDREN
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION ON APPELLANT’S
MOTION FOR REHEARING EN BANC 1
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We grant Appellant Rodolfo R.’s motion for rehearing en banc, withdraw
our opinion and judgment of November 2, 2006, and substitute this opinion and
judgment in their place.
Appellant appeals from the trial court’s order, following a nonjury trial,
terminating his parental rights in his children, C.R., E.R., and R.R., Jr. In two
1
… See T EX. R. A PP. P. 47.4.
points, Appellant argues that the evidence is legally and factually insufficient
(1) to support the trial court’s finding that he was convicted for aggravated
sexual assault and indecency with a child because those convictions were not
final at the time of trial and (2) to show that he engaged in criminal conduct
that resulted in his conviction and imprisonment for more than two years
following the date of the termination petition’s filing. We affirm.
Background
Appellant is the father of C.R., E.R., and R.R.; their mother is Rosa T.,
Appellant’s common-law wife.2 Appellant was also the stepfather of Rosa’s
two other children, G.T. and R.T.
Appellant testified that he was convicted on October 1, 2004, for five
separate crimes—two counts of aggravated sexual assault, two counts of
indecency with a child, and one count of attempted indecency with a
child—and received sentences of more than two years’ confinement for each
conviction. The victims of his crimes were his children and stepchildren. The
Department offered copies of the five judgments into evidence; they reflect
sentences ranging from ten to fifty years’ confinement.
2
… The trial court also terminated Rosa’s parental rights.
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The trial court found as grounds for termination under family code section
161.001(1) that Appellant had been convicted for being criminally responsible
for serious injury to a child under penal code sections 21.11 (indecency with
a child) and 22.021 (aggravated sexual assault) and that Appellant had
knowingly engaged in criminal conduct that resulted in his conviction of an
offense and confinement or imprisonment and inability to care for the children
for not less than two years from the date of filing the petition for termination.
See T EX. F AM. C ODE A NN. §§ 161.001(1)(L), (Q) (Vernon Supp. 2007) (setting
forth grounds for termination). The trial court also found that termination of
Appellant’s parental rights was in the children’s best interest and terminated
Appellant’s rights in the children.
Family Code Section 263.405(i)
In our original opinion, a panel of this Court held that family code section
263.405(i) precluded appellate review of Appellant’s issues because he had not
raised them in a timely-filed statement of points in the trial court under section
263.405(b). In re C.R., No. 02-06-00099-CV, 2006 WL 3114468, at *1 (Tex.
App.—Fort Worth Nov. 2, 2006); see T EX. F AM. C ODE A NN. §§ 263.405(b), (i)
(Vernon Supp. 2007). In his motion for rehearing and motion for rehearing en
banc, Appellant challenges the constitutionality of section 263.405(i), arguing
that it constitutes an infringement on our authority as ultimate arbiter of factual
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matters on appeal under Section 6 of Article I of the Texas Constitution. T EX.
C ONST. art. I, § 6.
After Appellant’s motion for rehearing and rehearing en banc was filed
and while it has been pending in this Court, in In re D.W., sitting en banc, this
Court held that section 263.405(i) is void in violation of the separation of
powers clause, Section 1 of Article II of the Texas Constitution, by interfering
with our constitutionally granted appellate powers under Section 6 of Article I.
T EX. C ONST. art. II, § 1; No. 02-06-00191-CV, 2008 WL 467328, at *12 (Tex.
App.—Fort Worth Feb. 19, 2008, no pet. h.)(en banc). In the interest of justice
and judicial economy, we will consider Appellant’s issues on the merits.3
Standard of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59,
102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
In a termination case, the State seeks not just to limit parental rights but to end
3
… In a nonjury case, a complaint regarding legal or factual insufficiency
of evidence to support a trial court finding may be raised for the first time on
appeal. T EX. R. C IV. P. 324(a),(b); T EX. R. A PP. P. 33.1(d). Therefore,
Appellant’s legal and factual insufficiency issues are preserved for appellate
review under the trial and appellate procedural rules.
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them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except for the child’s right
to inherit. T EX. F AM. C ODE A NN. § 161.206(b) (Vernon Supp. 2007); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of
the parent. Holick, 685 S.W.2d at 20-21; In re E.M.N., 221 S.W.3d 815, 820
(Tex. App.—Fort Worth 2007, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001 (Vernon
Supp. 2007); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must
be established; termination may not be based solely on the best interest of the
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987).
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
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reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined as the “measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
Grounds for Termination Under Section 161.001(1)
Family code section 161.001 provides, in pertinent part, as follows:
The court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
....
(L) been convicted or has been placed on community
supervision, including deferred adjudication community supervision,
for being criminally responsible for the death or serious injury of a
child under the following sections of the Penal Code or adjudicated
under Title 3 for conduct that caused the death or serious injury of
a child and that would constitute a violation of one of the following
Penal Code sections:
....
(iv) Section 21.11 (indecency with a child);
....
(vii) Section 22.02 (aggravated assault);
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(viii) Section 22.021 (aggravated sexual assault);
....
(Q) knowingly engaged in criminal conduct that has resulted
in the parent’s:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the
child for not less than two years from the date of filing the
petition; . . . .
T EX. F AM. C ODE A NN. §§ 161.001(1)(L), (Q).
Discussion
In his first point, Appellant argues that the evidence is legally and
factually insufficient to support the trial court’s findings under sections
161.001(1)(L) and (Q) because the five convictions underlying the findings are
not yet final.4 A conviction from which an appeal has been taken is not
considered to be final until the conviction is affirmed and the court’s mandate
4
… We affirmed Appellant’s convictions for aggravated sexual assault and
indecency with a child and reversed and remanded for new trial his conviction
for attempted indecency with a child on July 25, 2006. Rangel v. State, 199
S.W.3d 523, 544 (Tex. App.—Fort Worth 2006). The court of criminal appeals
granted Appellant’s and the State’s petitions for discretionary review, but
dismissed both petitions as improvidently granted on February 13, 2008.
Rangel v. State, No. PD-0447-06, ___ S.W.3d ___, 2008 WL 375446, at *1
(Tex. Crim App. February 13, 2008). Thus, the convictions are still not final.
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of affirmance becomes final. Russell v. State, 790 S.W.2d 655, 657 (Tex.
Crim. App. 1990).
Appellant concedes that other courts have held that “conviction” as used
in section 161.001(1) includes nonfinal convictions. See Rogers v. Dep’t of
Family and Protective Servs., 175 S.W.3d 370, 378 (Tex. App.— Houston [1st
Dist.] 2005, pet. dism’d w.o.j.) (“Although Rogers contends that his criminal
conviction cannot be used as evidence because it was on appeal at the time of
trial, that is not an accurate reflection of the statute, which makes no reference
to post-conviction proceedings.”); In re J.F.L., No. 06-04-00102-CV, 2005 WL
957974, at *1 (Tex. App.—Texarkana April 27, 2005, no pet.) (“The statute
does not contain language requiring proof of a final conviction, as would be
required in an enhancement context. It requires only proof of a conviction.”);
but see In re S.K.S., 648 S.W.2d 402, 404 (Tex. App.—San Antonio 1983, no
writ) (affirming termination on failure to support but noting in dictum that if the
father’s conviction had not been on appeal, “surely a final conviction for the
murder of the mother of the child would constitute the conduct described in sub
[section] (E)”).
Despite the persuasive authority from other courts, Appellant argues that
if the legislature had intended section 161.001(1) to encompass nonfinal
convictions, it would have explicitly said so. But from the plain language of
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section 161.001(1)(L)—“[has] been convicted or has been placed on community
supervision, including deferred adjudication community supervision—it is clear
that the legislature intended that subsection to encompass far more than final
convictions as grounds for termination. T EX. F AM. C ODE A NN. § 161.001(1)(L)
(emphasis added). The legislature’s inclusion of deferred adjudication as
grounds for termination shows that it intended subsection (L) to cover more
than just final convictions.
Appellant observes that only final convictions may be used to enhance
punishment under the penal code, see, e.g., Russell, 790 S.W.2d at 657, and
argues that we must presume that the legislature enacted section 161.001(1)
with knowledge of court decisions so holding. See Phillips v. Beaber, 995
S.W.2d 655, 658 (Tex. 1999) (“[W]e presume that the Legislature acted with
knowledge of the common law and court decisions.”). But the presumption
that the legislature was aware that courts have long held that only final
convictions may be used to enhance punishment under the penal code does not
mean the legislature intended to restrict the word “convicted” to the same
meaning in the family code under entirely different situations and
circumstances. And as we have already noted, the language of section
161.001(1)(L) shows that the legislature did not intend to restrict termination
under that subsection only to final convictions.
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Appellant also points to penal code section 49.09 and election code
section 141.001 to show that the legislature has explicitly expanded and
restricted the meaning of “conviction” when it wanted to. Penal code section
49.09(d) includes a conviction with a probated sentence within the meaning of
“final conviction” for enhancing punishment for repeat driving-while-intoxicated
offenders. T EX. P ENAL C ODE A NN. § 49.09(d) (Vernon Supp. 2007). Conversely,
section 141.001 of the election code specifically restricts eligibility for public
office to those who have not been “finally convicted of a felony.” T EX. E LEC.
C ODE A NN. § 141.001(a)(4) (Vernon Supp. 2007) (emphasis added). Rather
than support Appellant’s argument, these statutes highlight the fact that when
the legislature intends to expand or restrict the meaning of the word
“conviction,” it does so explicitly. In family code section 161.001(1)(L), the
legislature did not explicitly restrict the kind of convictions that will support
termination to final convictions, and its inclusion of deferred adjudication as a
ground for termination shows that the legislature intended to set the threshold
for termination well below the level of final conviction. See T EX. F AM. C ODE
A NN. § 161.001(1)(L).
We therefore follow the precedent set by our sister courts and hold that
a nonfinal conviction that otherwise meets the requirements of section
161.001(1)(L) will support termination. In this case, Appellant admitted that
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he had been convicted of two counts of aggravated sexual assault and two
counts of indecency with a child. He does not challenge the trial court’s finding
that these offenses caused serious injury to the child victims. Thus, the
evidence is both legally and factually sufficient to support the trial court’s
finding that Appellant had violated section 161.001(1)(L). We overrule the part
of his first point that concerns the trial court’s section 161.001(1)(L) finding.
Because a finding of a single ground under section 161.001(1), in conjunction
with a finding that termination is in the child’s best interest under section
161.001(2), will support a trial court’s termination order, we need not consider
the remainder of Appellant’s first point or his second point, both of which
concern the trial court’s finding under section 161.001(1)(Q). See T EX. F AM.
C ODE A NN. § 161.001; In re J.L., 163 S.W.3d at 84; T EX. R. A PP. P. 47.1. 5
5
… We likewise need not reach Appellant’s other argument raised in his
motion for rehearing—that section 263.405(i) is unconstitutional because it
prevents the rendition of effective assistance of counsel on appeal by requiring
the filing of a statement of all points to be raised on appeal before the record
can be prepared. See T EX. R. A PP. P. 47.1.
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Conclusion
Having overruled Appellant’s first point in part and having determined that
we need not consider the remainder of his first point nor his second point, we
affirm the trial court’s termination order.
ANNE GARDNER
JUSTICE
EN BANC
CAYCE, C.J.; concurs without opinion.
HOLMAN, J., concurs without opinion.
MCCOY, J., concurs without opinion.
DELIVERED: April 10, 2008
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