











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00219-CR
______________________________


GARY LYNN MARKHAM, JR., Appellant
Â 
V.
Â 
THE STATE OF TEXAS, Appellee


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

On Appeal from the 402nd Judicial District Court
 Wood County, Texas
Trial Court No. 16,492-2000


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 



Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss


MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Â Â Gary Lynn Markham, Jr., attempts to appeal the revocation of his community supervision and
imposition of twelve years' imprisonment for the offense of attempted driving while intoxicated
committed in 2000.  Pursuant to a plea agreement, Markham answered true to the allegations in the
State's application to revoke community supervision. 
Â Â Â Â Â Â Â Â Â Â Â Â The record demonstrates that the trial court held a hearing on Markham's right of appeal and
denied it.  On October 2, 2003, the trial court, in accordance with Rule 25.2,
 entered its certification
of defendant's right to appeal, stating that this "is a plea-bargain case, and the defendant has NO right
of appeal." 
Â Â Â Â Â Â Â Â Â Â Â Â Unless a certification, showing that a defendant has the right of appeal, is in the record, we
must dismiss the appeal.  See Tex. R. App. P. 25.2(d).  Because the trial court's certification
affirmatively shows Markham has no right of appeal, we dismiss his appeal.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Josh R. Morriss, III
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice

Date Submitted:Â Â Â Â Â Â Â Â Â Â November 19, 2003
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â November 20, 2003

Do Not Publish

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Â 
Â 
Â 
Â 
Â 
Â 
Â 
Â 
Â 
 In
The
                         Court
of Appeals
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Sixth
Appellate District of Texas at Texarkana
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  ______________________________
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  No. 06-10-00015-CV
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  ______________________________
Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  IN THE INTEREST OF M.B.D., A CHILD
Â 
Â 
Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  On Appeal from the 76th Judicial District Court
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Morris County, Texas
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Trial
Court No. 23,380
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Before Morriss, C.J.,
Carter and Moseley, JJ.
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Opinion by Justice Carter




Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  O P I N I O N
Â 
Â Â Â Â Â Â Â Â Â Â Â  In this
appeal we address whether the trial court erred in failing to admit evidence at
a hearing on a motion for new trial following the trial courtÂs order on
conservatorship and child support.Â  We
find that facts were alleged which, if true, would have entitled appellant
mother to a new trial, and therefore the trial court was obligated to hear
evidence.Â  We reverse the trial courtÂs judgment
and remand for an evidentiary hearing on the motherÂs new trial motion. 
I.Â Â Â Â Â Â Â Â Â  Background
Â 
Â Â Â Â Â Â Â Â Â Â Â  Sarah,
the child the subject of this suit in the trial court, was born to Jennifer and
Thomas[1]
in January 2006.Â  In August 2009 the
parents reached an agreement as to conservatorship and child support, and
dictated this agreement into the record before the trial court.Â  The trial court accepted the agreement,
declared it in SarahÂs best interest, and pronounced the agreement to be the
order of the court.Â Â  A written order was
not signed until November 30, 2009.Â  On
appeal, mother raises four points of error:Â 
the first two challenge the trial courtÂs order on conservatorship and
fatherÂs right to determine the childÂs primary residence.Â  Her third point complains of not being
allowed to present evidence at the hearing on her motion for new trial; the
fourth point addresses differences between the agreement dictated into the
record and the trial courtÂs written order.Â 
Our resolution of the third point, regarding evidence at the new trial
hearing, is dispositive of the appeal.
Â Â Â Â Â Â Â Â Â Â Â  Since
March 2007, these parties have been litigating conservatorship of their
child.Â  An agreed temporary order was
entered March 12, 2007, naming them as joint managing conservators. Â Father filed a petition to modify the
temporary order.Â  A lengthy hearing was
conducted in February 2008 and another temporary order was entered March 3,
2008, appointing the parents as joint managing conservators with father having
the right to designate the primary residence of the child.Â  A very brief final hearing was conducted
August 26, 2009, at which time the parties dictated into the record an
agreement which the trial court approved and adopted as the courtÂs order Âhere
in open court.ÂÂ  A final order, approved
as to substance and form by both mother and father, was entered November 30,
2009.Â Â  While the temporary hearings were
detailed and contained evidence about both parties, the live evidence at the
final hearing consists only of seven reported pages, including the trial courtÂs
comments.Â  The parties agreed this Âfinal
orderÂÂ  would appoint them as joint
managing conservators; mother would have visitation pursuant to the standard
possession order.[2]Â Â  Both parents testified before the trial
court they believed the agreement to be in the childÂs best interest; they each
agreed to the terms and wanted the trial court to approve the agreement.Â Â  The trial court approved the partiesÂ
agreement and found it to be in the childÂs best interest.Â Â  
Â Â Â Â Â Â Â Â Â Â Â  A
few days before the final written order was entered, mother filed motions in
the trial court attempting to withdraw her consent to the agreement Âread into
the record on August 26, 2009 . . . .Â Â On
November 30, 2009, the trial court signed a written order which was approved in
form and substance by both parents; the order was file-stamped December 2, 2009.Â  On December 30, 2009, mother filed a motion
for new trial.
II.Â Â Â Â Â Â Â  Lack of Evidence at Final Hearing 
Â Â Â Â Â Â Â Â Â Â Â  MotherÂs
first two points of error allege the trial court erred in appointing the father
as a joint managing conservator and as the conservator with the right to
determine the primary residence of the child.Â 
The basis for these arguments is Section 153.004 of the Texas Family
Code, which prohibits the appointment of joint managing conservators if
credible evidence is presented of a history by one parent of child neglect,
physical or sexual abuse against the other parent or a child.Â  Tex.
Fam. Code Ann. Â§ 153.004(b)
(Vernon 2008).Â  Mother cites evidence
that was introduced at the temporary hearings as the Âcredible evidenceÂ of a
history of sexual abuse by father against mother since they began their sexual
relationship when she was fourteen and he was approximately twenty years of
age.Â  At the final hearing no such
evidence was presented; the evidence from the hearings for temporary orders could
neither be considered by the trial court in reaching its final orders, nor by this
Court on reviewing the final order.Â  May v. May, 829 S.W.2d 373, 376 (Tex. App.ÂCorpus Christi 1992, writ
denied); see also Davis v. State, 293 S.W.3d 794 (Tex.
App.ÂWaco 2009, no pet.). Â Consequently,
there is no evidence to support motherÂs arguments that father was disqualified
as a joint managing conservator; we overrule points one and two.Â  
III.Â Â Â Â Â Â  The
Motion for New Trial
Â Â Â Â Â Â Â Â Â Â Â  MotherÂs motion for new trial
alleged that her assent to the conservatorship agreement was obtained via undue
influence and that she entered the agreement under duress.Â  She claimed that because she and Father had
been engaged in a sexual relationship beginning when she was fourteen years old
and Father was twenty, this Âprohibited sexual relationship[3]
placed undue influence on [mother] due to [fatherÂs] control and restraint on [motherÂs]
free will.Â Â Attached to the motion for
new trial was an affidavit in which mother detailed the sexual relationship
with father.Â  She also makes rather
general allusions to father having acted to ÂcontrolÂ her throughout the
relationship, such as when he pressured her to have sex or to drop out of
school; regarding the date the agreement between the parties was reached, motherÂs
affidavit claimed her attorney told her she Âdid not have a chance of getting
custody,Â would be lucky to get standard visitation, and could get less if she
did not accept the offered settlement.Â 
The affidavit goes on to say that she was ill after returning home from
the hearing which ended in the agreement, and that she felt panicked, confused,
and without alternatives.Â Â  Another broad
statement asserts, Â[Father] was always trying to control every aspect of my
life and this was just another example.ÂÂ 

Â Â Â Â Â Â Â Â Â Â Â  At
the hearing on the motion for new trial, mother continued to argue that
pressure had been brought to bear upon her to consent to the partiesÂ
agreement.Â  The trial court denied her
request to present testimony from a psychologist about her suffering from
post-traumatic stress as a result of her under-age relationship with father.Â  Mother also offered, but the trial court
declined to admit, a written statement which mirrored the history and
allegations in the motion for new trialÂs affidavit.Â  The statement was, though, accepted into the
record as an offer of proof.Â  No
testimony was presented at the new trial hearing, just argument from counsel.[4]Â  Near the end of his arguments, motherÂs
counsel made the following statement:Â  ÂThe
Family Code has provisions in it that are supposed to prevent us from putting a
child with a child sexual abuser, but thatÂs what has been -- what has
happened, unwittingly, in this case.Â  WeÂre
not supposed to do that . . . .Â
Â Â Â Â Â Â Â Â Â Â Â  During
the motion for new trial hearing, motherÂs attorney stated that mother started
having sex with father when she was fourteen and he was nearly twenty-one and
that mother had been a victim of rape for years and requested that mother be
allowed to present evidence.Â  About two
weeks later, mother filed a brief in support of her motion for new trial, and
for the first time specifically cited Section 153.004(b) of the Texas Family
Code: 
Â Â Â Â  (b)
The court may not appoint joint managing conservators if credible evidence is
presented of a history or pattern of past or present child neglect, or physical
or sexual abuse by one parent directed against the other parent, a spouse, or a
child, including a sexual assault in violation of Section 22.011 or 22.021,
Penal Code, that results in the other parent becoming pregnant with the child. Â A history of sexual abuse includes a sexual
assault that results in the other parent becoming pregnant with the child,
regardless of the prior relationship of the parents. Â It is a rebuttable presumption that the
appointment of a parent as the sole managing conservator of a child or as the
conservator who has the exclusive right to determine the primary residence of a
child is not in the best interest of the child if credible evidence is
presented of a history or pattern of past or present child neglect, or physical
or sexual abuse by that parent directed against the other parent, a spouse, or
a child.
Â 
Tex.
Fam. Code Ann. Â§ 153.004(b).Â 
Although mother initially argued for a new trial based on her claim of
undue influence and duress, a necessary predicate of this argument was the
sexual relationship between her and father which occurred when mother was a
child as defined in the Texas Penal Code and father was an adult.[5]
Â Â Â Â Â Â Â Â Â Â Â  The
above-cited subsection of the Texas Family Code, precluding a perpetrator of
domestic violence or a sexual abuser, in certain delineated circumstances, from
being named joint managing conservator of a child, appears to be
mandatory.Â  At least two of our sister
courts have treated it as such.Â  In Garner v. Garner, 200 S.W.3d 303, 310Â11
(Tex. App.ÂDallas 2006, no pet.), disapproved
on other grounds by Iliff v. Iliff, No. 09-0753, 2011 Tex. LEXIS 292 (Tex.
Apr.Â 15, 2011), the trial court made a finding of physical abuse by the
father against the mother; accordingly, the statute prohibited appointing him
joint managing conservator.Â Â  Also, in In re Marriage of Stein, 153 S.W.3d 485,
489 (Tex. App.ÂAmarillo 2004, no pet.), the acts of physical abuse were either
conceded by the parties or revealed by other uncontradicted testimony.Â  Thus as a matter of law, credible evidence
had been presented of physical abuse by one parent against the other and it was
an abuse of discretion to appoint the parents joint managing conservators.Â  Finally, the statuteÂs language is mandatory:Â Â  ÂThe court may not appoint joint managing
conservators if credible evidence is presented. . . .ÂÂ  This raises the question of whether the trial
court was presented with credible evidence of one of the situations which would
preclude appointment of joint managing conservators.Â  Although only admitted as an offer of proof,
the trial court was presented with a written statement from mother (albeit
unsworn) alleging in detail a sexual relationship which amounted to sexual
assault of a child as defined by the Texas Penal Code.Â  Also, the unsworn statement admitted as an
offer of proof at the new trial hearing closely mirrored the allegations and
history detailed in motherÂs sworn affidavit, attached to the initial motion
for new trial.Â  And near the end of the
new trial hearing, motherÂs attorney did ask to put mother on the stand to
testify. 
Â Â Â Â Â Â Â Â Â Â Â  Thus,
mother presented the trial court with a summary of evidence which, if developed
through testimony or other admissible evidence, could have amounted to credible
evidence that father had engaged in sexual assault of mother.Â  ÂWhen a motion presents a question of fact
upon which evidence must be heard, the trial court is obligated to hear such
evidence when the Motion for New Trial alleges facts, which if true, would
entitle the movant to a new trial and when a hearing for such purpose is
properly requested.ÂÂ  Hensley v. Salinas, 583 S.W.2d 617, 618
(Tex. 1979).Â  In Hensley, the trial court failed to hold a hearing on the movantÂs
motion for new trial, despite repeated requests.Â  Here, the trial court did conduct a hearing,
but declined to hear testimony or evidence.Â 
Counsel for mother pointed out at the hearing the Texas Family CodeÂs
provision for preventing a child from being placed Âwith a child sexual abuserÂ
and did accurately cite the statutory provision in a subsequent brief, which
was filed at the invitation of the trial court.Â 
The evidence proffered by mother presented a factual questionÂwhether father
engaged in a sexual relationship with mother which would have constituted
sexual assault of a childÂwhich, if true, would have entitled mother to a new
trial (i.e., the trial court was precluded as a matter of law from naming father
as a joint managing conservator).Â  The
trial court was, therefore, obligated to hear evidence and make a finding on
the question of fact.Â  Id.
IV.Â Â Â Â Â Â  Deviation
in Final Order
Â Â Â Â Â Â Â Â Â Â Â  Finally,
mother argues in her fourth point that the final order deviated from the agreement
entered in open court.Â  The agreement
recited in open court was extremely brief whereas the written judgment is a
detailed thirty-two-page document signed and approved by both parties and their
attorneys.Â  No argument is made that the
signed and approved final order was not the agreement of the parties.Â  We overrule motherÂs fourth point of error.
V.Â Â Â Â Â Â Â  Conclusion
Â Â Â Â Â Â Â Â Â Â Â  A
judgment may be reversed only if the error (1) probably caused the rendition of
an improper judgment; or (2) probably prevented the appellant from properly
presenting the case to the court of appeals.Â 
Tex. R. App. P.
44.1(a)(1)(2).Â  In this instance
we have found the error to be failing to allow the mother to testify at the
motion for new trial hearing.Â  We find
this error probably prevented the appellant from properly presenting her case
to the court of appeals.Â  We reverse the
judgment and remand the proceeding to the trial court to conduct an evidentiary
hearing on motherÂs motion for new trial.
Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Jack
Carter
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Carter
Date Submitted:Â Â Â Â Â Â Â Â Â  April
12, 2011
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â  May
6, 2011




[1]Pseudonyms
have been used for the parents and child to protect the childÂs identity and
privacy.Â  We will refer to the parties
simply as ÂmotherÂ and Âfather.Â 


[2]See Tex.
Fam. Code Ann. Â§Â§ 153.311Â.317
(Vernon 2008 & Vernon Supp. 2010).


[3]See Tex.
Penal Code Ann. Â§ 22.011 (Vernon Supp. 2010).


[4]Exhibits
entered as evidence consisted of copies of three cases, generally concerning
the law on motherÂs allegations of undue influence; and a psychological
assessment of mother, which had already been made a part of the trial courtÂs
file ten days before the agreement was entered, in August 2009.Â  


[5]Although
we cannot consider evidence from the temporary hearing, the fatherÂs attorney
during the motion for new trial hearing argued that the parties had litigated
Âhow this child was bornÂ at a temporary hearing and mother did not bring it up
Âuntil my client filed for custody about my client raping her and all
that.ÂÂ  


