Joshua Robert Jones v. Krista Kay Jones--Appeal from 25th Judicial District Court of Guadalupe County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 04-05-00586-CV

Case Date: 11/23/2005

Plaintiff: ALBERT JAMES, III

Defendant: THE STATE OF TEXAS--Appeal from Criminal District Court of Jefferson County

Preview:Joshua Robert Jones v. Krista Kay Jones--Appeal from 25th Judicial District Court of Guadalupe County
MEMORANDUM OPINION

No. 04-05-00586-CV

IN THE INTEREST OF T.N.J., a Child

From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 03-1285-CV Honorable Linda Z. Jones, Judge Presiding Opinion by: Alma L. L pez, Chief Justice Sitting: Alma L. L pez, Chief Justice Catherine Stone, Justice Karen Angelini, Justice Delivered and Filed: November 23, 2005

AFFIRMED This appeal arises from a final divorce decree in which the parental rights of Joshua Robert Jones were terminated. Krista Kay Jones was named sole managing conservator of T.N.J. Joshua has filed a pro se brief, // which we construe as presenting the following issues: (1) the trial court could only terminate Joshua s parental rights under section 161.001(1)(P) of the Texas Family Code; (2) the evidence is insufficient to support the termination of Joshua s parental rights; (3) the trial court erred in refusing to consider the visitation rights of Joshua s parents; (4) the trial court erred in sustaining the contest to Joshua s affidavit of indigence thereby depriving him of the right to appointed appellate counsel; and (5) trial counsel rendered ineffective assistance of counsel. We affirm the trial court s judgment. Background Krista and Joshua married in December of 2001 after dating only four months. Krista discovered that Joshua had a drug problem in March of 2002, when Joshua returned home from a bar after drinking and taking several different prescription drugs. Shortly thereafter, Krista called 911 when Joshua began foaming at the mouth. Joshua refused treatment and started threatening Krista with a knife after Krista called her parents to ask for help in moving out of the house. Krista ran out of the house and stayed with her parents. When Krista returned the following day to remove her things, Joshua apologized, and Krista decided to stay.
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In April of 2002, Krista discovered she was pregnant. In September of 2002, Krista and Joshua were arguing over money when Joshua pushed her to the floor and cracked her tailbone. During Krista s pregnancy, Joshua went to bars most nights. Two weeks before T.N.J. was born, Krista awoke to find Joshua in the hot tub. Joshua was gasping to breathe and had blood coming out of his mouth. Krista pulled Joshua out of the hot tub and called 911. Joshua was in the hospital for four days. He had taken morphine, Xanax, Vicodin, and some other drugs. One week after T.N.J. was born, Krista was driving from Joshua s parent s house to Krista s parents house on Christmas Day. Krista noticed that Joshua had stopped breathing and had stuff coming out of his mouth. Krista found an open restaurant and called 911. Joshua refused treatment after he was given a shot to wake him. The technicians told Krista that the shot would not have worked if Joshua s condition had not been drug-related. Two months later, Joshua became angry when Krista called him home from a bar. Krista locked T.N.J. and herself in a spare bedroom. Joshua broke the door and took T.N.J. out of his crib. Krista called 911. The police came and eventually convinced Joshua to hand over T.N.J. The officers handed T.N.J. to Krista and then scuffled with Joshua who was resisting arrest. After Joshua s dad bailed him out of jail, he returned home and beat Krista because he wanted [her] to know what it felt like to get beat up because he got beat up by the police officers. Shortly after this incident, Krista and Joshua moved in with her parents, and Joshua lost his job due to excessive absences. Krista and Joshua were in the process of building their own home, but Joshua did not make any real effort to find another job. In early July of 2003, Joshua tried to strangle or hang himself twice in one week. Joshua entered a rehab program. On the day he graduated from the program, he overdosed on heroin. At that time, Krista hired an attorney to file for divorce. When Joshua was served with the divorce petition in August of 2003, he intentionally crashed his car into a brick wall after arguing with Krista and her parents and after asking Krista s dad how he would feel if he tried to hurt himself. Joshua was taken to the hospital by airlife and spent some time in another rehabilitation program after which Krista allowed him to return. In October or November of 2003, Krista found a syringe and a dirty spoon in Joshua s pants pocket on the bathroom floor. T.N.J. was crawling by that time, and Krista made Joshua leave. Joshua entered another rehabilitation program and lived with his parents until January of 2004. In January of 2004, Krista allowed Joshua to return. In April of 2004, Krista and Joshua attended her cousin s wedding. T.N.J. began crying, so Joshua stated that he would take him to the church s cry room. When the service was over, Krista looked for Joshua and could not find him. Joshua eventually walked up and stated that he had taken T.N.J. to the playground behind the church. At that time, Krista did not think Joshua was sober. Joshua later admitted that he had used heroin when he went to the playground. The following day, Joshua returned to rehab. After leaving rehab, however, Joshua continued using drugs. Finally, in the summer of 2004, Krista decided to file for termination of Joshua s parental rights. Krista did not think there was a safe place for T.N.J. to be with Joshua because Joshua was not safe. Krista stated that she had never seen Joshua free of drugs for any length of time. Joshua had not seen T.N.J. for approximately seven or eight months prior to the termination hearing, and T.N.J. had never asked about his father. Dr. Joann Murphey was appointed by the court to conduct a psychological evaluation of the parties and T.N.J. Joshua admitted his drug and alcohol abuse to Dr. Murphey, including his use of cocaine and heroin. Dr. Murphey stated that Joshua s medical records reflect that Joshua had been hospitalized at least four or five times for suicide-related attempts. Joshua had been arrested for driving while intoxicated, possession of drugs, and domestic violence. Joshua denied harming Krista during her pregnancy. Dr. Murphey detailed Joshua s history of drug abuse and the nature of his various hospitalizations. Dr. Murphey stated that Krista reported that Joshua was frequently under the influence of drugs and alcohol in T.N.J. s presence. On one occasion, Krista found a pill on the floor that she thought was Xanax. Some of Joshua s suicide attempts were in T.N.J. s presence, and he physically abused Krista in front of T.N.J. Dr. Murphey stated that Joshua s involvement in T.N.J. s life could cause emotional damage to T.N.J. Dr. Murphey admitted that she could not predict that Joshua could never overcome his drug addiction, but Dr. Murphey stated that Joshua s past record of failed rehabilitation efforts did not look promising. Joshua testified that he had overdosed on drugs eight times and admitted T.N.J. was in the house on some of those

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occasions. Joshua admitted that on one occasion he overdosed in the car while T.N.J. was present. Joshua admitted that he had tossed T.N.J. in the air and flipped him on the bed when T.N.J. was eight months old. Joshua admitted that he might have been under the influence of alcohol or drugs on those occasions. Joshua admitted that he took T.N.J. from a wedding and went to a park where he used heroin. Joshua admitted taking T.N.J. into a bedroom while Joshua was under the influence of alcohol and holding T.N.J. in the bedroom until police talked him into releasing the child. On that occasion, Joshua was arrested for domestic violence. Joshua admitted that he used money that should have been spent on T.N.J. to purchase drugs. Joshua admitted that he had not provided any support for T.N.J. for a year. Joshua testified regarding his attempts to rehabilitate himself including his current participation in a rehabilitation program. Joshua stated that he last used drugs in February of 2005, and he entered the most recent rehabilitation program in late May of 2005 prior to the termination hearing which was held on June 16, 2005. Johnny Gray, a private investigator, was hired to set up a surveillance of Joshua s actions from August of 2004 through November of 2004. Gray testified that he initially only observed Joshua drinking heavily at a bar. Gray stated that Joshua would drive after drinking. Gray later observed Joshua purchasing and possibly selling drugs. Gray admitted that he did not directly observe any drugs but formed the belief based on his indirect observations. Joshua s mother testified that Joshua was making a true effort in his latest rehabilitation program. Joshua s mother stated that Joshua was only seeking supervised visitation. Grounds for Termination Joshua initially complains that the trial court could only terminate his parental rights for behavior relating to controlled substance abuse under section 161.001(1)(P) of the Texas Family Code, which requires a showing that he failed to complete a court-ordered substance abuse treatment program or continued to abuse a controlled substance after completing a court-ordered substance abuse treatment program. See Tex. Fam. Code Ann. 161.001(1)(P) (Vernon 2002). Because the trial court did not order him to complete a substance abuse treatment program, Joshua contends that the evidence was insufficient to support the termination. We disagree. In order for a parent s rights to be terminated, only one finding alleged under section 161.001(1) is necessary. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re S.F., 32 S.W.3d 318, 320 (Tex. App. San Antonio 2000, no pet.). Section 161.001(1) does not contain any restrictions on which findings are required in a particular case, and this court has relied on drug addiction as evidence to support termination under section 161.001(1)(E). See In re D.G., 5 S.W.3d 769, 772 (Tex. App. San Antonio 1999, no pet.); see also In re S.L.W., No. 11-03-00390-CV, 2004 WL 2244476, at *2 (Tex. App. Eastland Sept. 30, 2004, no pet.) (relying on drug abuse to support a finding under section 161.001(1)(E) thereby making it unnecessary to determine the sufficiency of the evidence to support a finding under section 161.001(1)(P)). Sufficiency of the Evidence Joshua also challenges the sufficiency of the evidence to support both the finding under section 161.001(1) and that termination was in T.N.J. s best interest. Due process requires the application of the clear and convincing evidence standard in cases involving the termination of parental rights. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). In a legal sufficiency review, we consider the evidence in the light most favorable to the challenged finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding is true. Id. at 266. In determining whether the evidence is factually sufficient, we make the same inquiry, but consider all of the evidence without viewing it in the light most favorable to the challenged finding. Id. In viewing the evidence, we may not reweigh the evidence to our own liking, and we may not second guess the jury s assessment of the credibility of the witnesses. In re D.G., 5 S.W.3d at 771. The trial court s judgment states that the basis for the termination decision was its finding that Joshua engaged in conduct that endangered the physical or emotional well-being of T.N.J., knowingly placed or knowingly allowed T.N.J. to remain in conditions or surroundings that endangered the physical or emotional well-being of T.N.J., and that termination was in T.N.J. s best interest. These findings, therefore, are findings under sections 161.001(1)(D) and (E) and section 161.001(2) of the Code. Both subsections (D) and (E) require proof of endangerment, which means to expose to loss or injury or to jeopardize
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a child s emotional or physical health. See Asjes v. Texas Dept. of Protective & Regulatory Servs., 142 S.W.3d 363, 369 (Tex. App. El Paso 2004, no pet.). Abusive or violent conduct as well as drug-related criminal activity by a parent can support a conclusion that a child s physical or emotional well-being is being endangered. In re D.C., 128 S.W.3d 707, 715-16 (Tex. App. Fort Worth 2004, no pet.). Drug addiction and its effect on a parent s life and ability to parent may establish an endangering course of conduct. Asjes, 142 S.W.3d at 369; Dupree v. Texas Department of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App. Dallas 1995, no writ). The evidence overwhelmingly established Joshua s drug and alcohol addiction. Furthermore, the evidence established that Joshua s drug abuse endangered T.N.J. when Joshua would leave drugs and drug paraphernalia in places accessible to T.N.J. Joshua s drug abuse further endangered T.N.J. s physical and emotional well-being when Joshua would abuse drugs to the point where he overdosed in T.N.J. s presence. Finally, Joshua s physical abuse of Krista in T.N.J. s presence jeopardized T.N.J. s emotional health. Accordingly, the evidence was sufficient to support the trial court s finding under either subsection (D) or (E). In evaluating whether termination would be in the best interest of the child, the following factors are considered: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parenting ability of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re D.G., 5 S.W.3d at 772. In this case, T.N.J. was too young to have a stated desire with regard to his father. See In re D.G., 5 S.W.3d at 772. T.N.J. had no special emotional or physical needs; however, Joshua s continued drug and alcohol abuse would continue to pose an emotional and physical danger to T.N.J. Although Joshua testified regarding his most recent rehabilitation efforts, the trial court may have believed that based on his past lack of success with such programs, Joshua would continue to pose the same threat in the future. Joshua had limited involvement with T.N.J., while Krista provided complete emotional and monetary support. Krista planned to continue to provide for T.N.J. and was saving toward his future education. T.N.J. was in a stable home. T.N.J. had not seen Joshua for at least eight months, and Joshua had provided no monetary support for T.N.J. during the year prior to the hearing. This evidence is legally and factually sufficient to support the trial court s finding that termination was in T.N.J. s best interest. Grandparent Access Joshua also complains about the trial court s refusal to consider his parent s verbal request for visitation. The record does not contain any evidence that the paternal grandparents filed any document requesting access pursuant to section 153.432 of the Code. See Tex. Fam. Code Ann. 153.422 (Vernon 2002). Furthermore, the verbal request was made at the hearing on Joshua s motion for new trial and the contest to his affidavit of inability. The trial court did not abuse its discretion in stating that the issue was not properly before the court. See In re C-Span Entertainment, Inc., 162 S.W.3d 422, 429 (Tex. App. Dallas 2005, orig. proceeding) (noting trial court has inherent power to control disposition of cases on its docket). Affidavit of Indigence Joshua further contends that the trial court erred in sustaining the contest to his affidavit of indigence, thereby depriving him of appointed appellate counsel. The test for indigence is whether a preponderance of the evidence shows that the party would be unable to pay costs if he really wanted to and made a good faith effort to do so. Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996) (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)). On appeal, we review the trial court s ruling on an indigency determination under an abuse of discretion standard. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App. San Antonio 2001, pet. denied). The order states, movant did not meet his burdens and that he withheld material statements regarding both income, real and personal property. The record from the hearing on the contest supports the trial court s finding. At the hearing, evidence was presented that Joshua owned a home that was valued at approximately $87,000. Joshua had failed to list the house as an asset on his affidavit. Although Joshua testified that the house was being rented for the same amount as

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the mortgage payment, Joshua presented no documentary proof to support his testimony. Furthermore, no evidence was presented of any recent efforts by Joshua to sell the house or to obtain a home equity loan. Joshua also testified that he was being paid $2.50 an hour for managing health care for homeless veterans as part of his rehabilitation program. Joshua worked approximately 32 hours a week. He was living expense-free in the rehabilitation facility and attending graduate school for his master s degree in public administration. Joshua further testified that his hourly rate would increase to approximately $5.65 an hour in three weeks to two months. Joshua further admitted to owning a coin collection worth approximately $200 to $300. Although Joshua had applied for disability through the V.A., he failed to disclose this possible source of income. Finally, Joshua admitted that he owned an inoperable vehicle and had not made any efforts to sell it. Because Joshua failed to disclose complete information, the trial court did not abuse its discretion in concluding that Joshua did not meet his burden of proving by a preponderance of the evidence that he would be unable to pay costs if he really wanted to and made a good faith effort to do so. Griffin Indus., Inc., 934 S.W.2d at 351. Ineffective Assistance In his final issue, Joshua contends he received ineffective assistance of counsel because his trial counsel failed to: (1) inform him of his right to a jury trial; (2) pursue an independent psychological evaluation; (3) object to the trial court s reliance on sections 161.001(D) and (E); and (4) advise him to attend a substance abuse program. To prevail on this issue, Joshua must show that his attorney s performance was deficient and such deficiency prejudiced his defense so as to deprive Joshua of a fair trial. In re K.M.H., No. 14-04-00458-CV, 2005 WL 1693613, at *3 (Tex. App. Houston [14th Dist.] July 14, 2005, no pet.). The record does not reflect that trial counsel failed to inform Joshua of his right to a jury trial. See id. Because the record is silent, we may only speculate as to whether trial counsel informed Joshua of his right to a jury trial and why trial counsel chose not to file a jury request. We may not reverse for ineffective assistance of counsel when counsel s actions or omissions may have been based on tactical decisions, and the record contains no specific explanation for counsel s decisions. Id., at *6. A silent record will not support a claim of ineffective assistance. In re D.E., No. 04-0200825-CV, 2003 WL 21215981, at *2 (Tex. App. San Antonio May 28, 2003, no pet.). With regard to pursuing an additional psychological evaluation, Joshua appears to be complaining that the psychological evaluation by Dr. Murphey was tainted or skewed because Krista paid Dr. Murphey. This complaint ignores that Dr. Murphey was independently appointed by the trial court and Krista was ordered by the court to pay the fees. The record is silent regarding the reason trial counsel decided not to obtain a second evaluation; therefore, the record does not support Joshua s claim. Id. With regard to trial counsel s failure to object to the trial court s reliance on sections 161.001(D) and (E), we previously held that this reliance was proper; therefore, the failure to object was not deficient performance by trial counsel. Finally, with regard to trial counsel s failure to advise Joshua to attend a substance abuse program, the record is replete with the various attempts and failures resulting from Joshua s attendance of such programs. Trial counsel could have believed that a belated attempt to attend a program immediately prior to trial would not have been convincing evidence in view of Joshua s history with such programs. In any event, the record contains no specific explanation for the basis for trial counsel s decision. Id. Conclusion The trial court s judgment is affirmed. Alma L. L pez, Chief Justice

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