                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00085-CV

                  IN THE INTEREST OF R.A.D.G., A CHILD


                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 07-000031-CV-361


                           MEMORANDUM OPINION


       Rene G. appeals from a judgment that terminated his parental rights to his child,

R.A.D.G. TEX. FAM. CODE ANN. § 161.001 (West 2011). Rene complains that he received

ineffective assistance of counsel because his trial counsel did not ensure the attendance

of his wife and mother at the final hearing and did not file a written, verified motion for

continuance asking for additional time to secure the attendance of those witnesses.

Because we find that the Rene has not met his burden to establish that his trial counsel

was ineffective, we affirm the judgment of the trial court.

       In parental rights termination cases, the Texas Supreme Court has adopted the

Strickland test that establishes the standards for effective assistance in criminal cases.
See In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (citing Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984)). "Under the well-established Strickland test,

proving ineffective assistance of counsel requires a showing that (1) counsel made

errors so serious that counsel was not functioning as 'counsel' guaranteed by the Sixth

Amendment, and (2) the deficient performance prejudiced the defense, which 'requires

showing that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.'" In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (quoting

M.S., 115 S.W.3d at 545). If both prongs of the Strickland test are not met, an appellant's

ineffective assistance of counsel claim fails. See In re M.S., 115 S.W.3d at 545; see also

Strickland, 466 U.S. at 700.

        Under the first prong, the appellant must establish that trial counsel's

performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at

687-88. Trial counsel's conduct constitutes ineffective assistance only if the challenged

conduct is so outrageous that no competent attorney would have engaged in it. See In re

M.S., 115 S.W.3d at 545; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Under the second prong, an appellant must establish that there is a reasonable

probability that but for his attorney's deficient performance, the outcome of his case

would have been different. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.

"Reasonable probability" is that which is "sufficient to undermine confidence in the




In the Interest of R.A.D.G., a Child                                                   Page 2
outcome." Strickland, 466 U.S. at 694; Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.

App. 1998).

        In evaluating trial counsel's performance, we must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable, professional assistance

and was motivated by sound trial strategy. In re M.S., 115 S.W.3d at 545. An appellant

bears the burden to overcome the presumption that, under the circumstances, the

challenged conduct might be considered sound trial strategy. Strickland, 466 U.S. at 689.

When the record is silent concerning the reasons for trial counsel's actions, we do not

engage in speculation to find ineffective assistance of counsel. Walker v. Tex. Dep't of

Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied) (citing Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996,

no pet.)). Accordingly, ineffective assistance claims must be firmly founded in the

record, and the record must affirmatively show the alleged ineffectiveness. Mallett v.

State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (quoting Thompson, 9 S.W.3d at 814).

        Miranda S. filed a petition seeking to terminate Rene's parental rights in

September of 2013. Rene filed an answer. Miranda requested a final hearing setting

with forty-five days' notice in early December of 2013, which was set for February 18,

2014. On that date, the trial court appointed an attorney to represent Rene and reset the

final hearing to March 7, 2014. The hearing was reset and heard on March 11, 2014.

Rene had been bench warranted back from prison for the final hearing.


In the Interest of R.A.D.G., a Child                                                  Page 3
         Rene was serving a six year sentence in prison for the offense of indecency with a

child. Rene had originally received deferred adjudication community supervision for

the offense, but was adjudicated and eventually revoked due to subsequent criminal

activity, including using drugs, driving while intoxicated, and assaulting his current

wife.1

         At the start of the hearing on March 11, at Rene's request, his trial counsel made

an oral motion for continuance because his mother and current wife were not present.

Rene's trial counsel stated that she found out the night before the final hearing that

Rene's current wife had a doctor's appointment on March 11 to have stitches removed

from a caesarian section she had two weeks before the final hearing. The trial court

denied the motion as being untimely and proceeded with the hearing. Later, during

Rene's testimony, the trial court asked him if he knew where his wife was at that time

and he did not. His trial counsel explained that she had spoken with Rene's wife the

previous evening and that she could not reschedule the appointment. His trial counsel

did not know whether or not she could have waited to get the stitches removed at

another time.       Nothing was said by either Rene or his trial counsel regarding his

mother's whereabouts.

         The trial court heard evidence from Miranda and Rene and spoke with R.A.D.G.

outside of the presence of the parties and attorneys the day after the hearing. The trial

1Rene does not challenge the legal or factual sufficiency of the evidence supporting the termination of his
parental rights.

In the Interest of R.A.D.G., a Child                                                                Page 4
court then signed an order granting the termination and then appointed new counsel

for Rene for purposes of appeal. Rene filed a notice of appeal prior to the signing of the

order but did not file a motion for new trial.

        Because Rene did not file a motion for new trial or otherwise give his trial

counsel an opportunity to explain any trial strategy or any reasons for the unavailability

or failure to subpoena Rene's mother and current wife, we will not speculate as to any

reasoning. Based on the record before us, we do not find that Rene has met his burden

to establish that his trial counsel's actions were so outrageous that no competent

attorney would have engaged in it by failing to subpoena witnesses. See In re M.S., 115

S.W.3d at 545.

        Additionally, we do not find that Rene has met his burden to establish that

Rene's trial counsel's failure to file a written, verified motion for continuance

constituted defective performance either. The record establishes that the trial court did

not deny the motion on the basis that it was not written but because it was not timely.

Further, Rene has not shown that had a written motion been filed that the result would

have been any different. Rene has not met his burden to establish both prongs of

Strickland and therefore, his claim of ineffective assistance of counsel cannot be

sustained. We overrule Rene's sole issue.




In the Interest of R.A.D.G., a Child                                                Page 5
Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.2




                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 2, 2014
[CV06]




2   In this proceeding the appellant was determined to be indigent and allowed to proceed without the
advance payment of cost. See TEX. R. APP. P. 20.1. The ability to proceed without the advance payment of
cost does not, however, mean that the cost is not owed by an unsuccessful appellant. See In re McGowan,
No. 10-10-00208-CV, 2010 Tex. App. LEXIS 5046 (Tex. App.—Waco June 30, 2010, orig. proceeding) (mem.
op.). Because we have affirmed the judgment of the trial court, and thus ruled against the appellant in
this appeal, the judgment of the Court will award the appellee the appellate cost paid by the appellee, if
any, and all unpaid cost of the appeal will be taxed against the appellant. The Clerk of this Court is
hereby ordered to write off all unpaid filing fees for this proceeding from the accounts receivable of the
Court. The write off, however, in no way eliminates or reduces the fees owed by the appellant pursuant
to the Court’s judgment.

In the Interest of R.A.D.G., a Child                                                               Page 6
