





6-96-028-CV Long Trusts v. Dowd                                     



















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

______________________________

No. 06-06-00035-CV
______________________________



IN RE:
CATHERINE MARIE WHATLEY




Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Original Mandamus Proceeding





Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 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 Justice Ross



MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Catherine Marie Whatley has filed a petition for writ of mandamus in which she asks
this Court to order the Honorable Robin D. Sage, presiding judge of the 307th Family
District Court of Gregg County, Texas,
 to grant her a writ of habeas corpus seeking
possession of her children, David Allen Whatley, II, and Christopher James Whatley.   We
requested that any response from the respondent or real party in interest be "received by
this court no later than Monday, April 03, 2006."  No response has been received from
either the respondent or the real party in interest.  We conditionally grant the writ.
Â Â Â Â Â Â Â Â Â Â Catherine Whatley was given custody of the children by an agreed final decree of
divorce.  Following an inspection of her house by the Texas Department of Family and
Protective Services (the Department), Catherine Whatley agreed as part of a written Child
Safety Evaluation Plan to allow David Whatley, the father of the children, to assume
custody of the children.  That agreement expired February 24, 2006.  On March 9, 2006,
Catherine Whatley filed an application for a writ of habeas corpus in the trial court in an
attempt to secure the return of her children to her custody from the custody of David
Whatley.  
Â Â Â Â Â Â Â Â Â Â At the hearing on the application for writ of habeas corpus, Diedre Phillips, an
investigation supervisor for the Department, testified that the condition of Catherine
Whatley's home posed a danger to the children's well-being.  Several pictures, which were
taken January 13, 2006, during a visit by the Department to Catherine Whatley's home,
were introduced into evidence.  These pictures reveal that there was trash throughout the
house, urine and human feces on the toilet seats, and the bathroom sink was filled with
trash.   Phillips also testified there was dog feces on the floor and a considerable amount
of trash, including a refrigerator, on the front porch, both of which could pose a hazard to
the children.  Phillips testified Catherine Whatley was informed the children would be
returned once the house was in a suitable condition.  While no pictures of the inside of the
house taken since the visit on January 13th were introduced, Phillips testified that, on
March 3, 2006, when she visited Catherine Whatley's home, the home was in similar
condition, although not the exact same condition.  There were pictures of the exterior of
the house taken March 3, 2006, introduced into evidence which showed there was still a
considerable amount of trash, and the refrigerator, on the front porch.  Phillips testified that
Catherine Whatley agreed to allow the children to remain with their father March 3, 2006. 
The record does not indicate the length of time Catherine Whatley agreed to allow the
children to remain with their father or any written extension of the original agreement.  
Â Â Â Â Â Â Â Â Â Â Following the hearing, the trial court denied the application for writ of habeas corpus. 
Although the trial court orally found there was "a serious and immediate question regarding
the health and safety of the children," no written finding of the existence of a serious
immediate question concerning the welfare of the children was made and no temporary
custody order was granted awarding custody of the children to a person other than
Catherine Whatley.  The trial court did issue a written order denying the application for writ
of habeas corpus, but no temporary custody order was entered and no written finding was
made that a serious and immediate question existed concerning the welfare of the children.
Â Â Â Â Â Â Â Â Â Â Mandamus issues only when the mandamus record establishes (1) a clear abuse
of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and
adequate remedy at law.  Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v.
Packer, 827 S.W.2d 833, 839â40 (Tex. 1992).  Mandamus is an extraordinary remedy that
will issue only to correct a clear abuse of discretion, or, in the absence of another statutory
remedy, when the trial court fails to observe a mandatory statutory provision conferring a
right or forbidding a particular action.  Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). 
The proper procedure to challenge a trial court's denial of an application for writ of habeas
corpus seeking possession of a child is through a petition for writ of mandamus.  Lamphere
v. Chrisman, 554 S.W.2d 935, 938 (Tex. 1977); Revey v. Peek, 951 S.W.2d 920, 924 (Tex.
App.âTexarkana 1997,  orig. proceeding).
Â Â Â Â Â Â Â Â Â Â With respect to the resolution of factual issues or matters committed to the trial
court's discretion, the reviewing court may not substitute its judgment for that of the trial
court.   Walker, 827 S.W.2d at 840.  The relator must establish that the trial court could
reasonably have reached only one decision.  Id.  Our review is much less deferential with
respect to a trial court's determination of the legal principles controlling its ruling, because
a trial court has no discretion in determining what the law is or in applying the law to the
facts.  Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996); see Walker, 827 S.W.2d at
840.   Thus, a clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion and may result in a writ of mandamus.  Huie, 922 S.W.2d
at 927.  The trial court's erroneous legal conclusion, even in an unsettled area of law, is an
abuse of discretion.  Id. at 927â28.
Â Â Â Â Â Â Â Â Â Â An application for writ of habeas corpus seeking custody pursuant to a prior court
order is governed by Section 157.372(a) of the Family Code, which provides as follows:
Subject to Chapter 152 and the Parental Kidnapping Prevention Act (28
U.S.C. Section 1738A), if the right to possession of a child is governed by a
court order, the court in a habeas corpus proceeding involving the right to
possession of the child shall compel return of the child to the relator only if
the court finds that the relator is entitled to possession under the order.

Tex. Fam. Code Ann. Â§ 157.372(a) (Vernon 2002).  The intent of habeas corpus is to
compel obedience to existing orders, not to relitigate the award of custody.  Saucier v.
Pena, 559 S.W.2d 654, 656 (Tex. 1977); In re P.D.M., 117 S.W.3d 453, 460 (Tex.
App.âFort Worth 2003, pet. denied).  The issuance of the writ of habeas corpus is to be
"automatic, immediate, and ministerial, based upon proof of the bare legal right of
possession."  Schoenfeld v. Onion, 647 S.W.2d 954, 955 (Tex. 1983).  
Â Â Â Â Â Â Â Â Â Â We note one exception to the above rule would be if the trial court had entered a
valid temporary order under Section 157.374 of the Texas Family Code finding a serious
immediate question concerning the children's welfare.  See Tex. Fam. Code Ann. Â§ 157.374
(Vernon 2002); see Strobel v. Thurman, 565 S.W.2d 238, 239 (Tex. 1978) (concerning 
former Section 14.10(c) of the Texas Family Code).  Section 157.374 provides: 
"Notwithstanding any other provision of this subchapter, the court may render an
appropriate temporary order if there is a serious immediate question concerning the
welfare of the child."   Tex. Fam. Code Ann. Â§ 157.374.  The term "serious immediate
question" means imminent danger of physical or emotional harm that requires immediate
action to protect the child.   McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex. 1977); In re
Lau, 89 S.W.3d 757, 759 (Tex. App.âHouston [1st Dist.] 2002, orig. proceeding).
Â Â Â Â Â Â Â Â Â Â Under the facts of this case, the trial court clearly abused its discretion by refusing
to grant the application for writ of habeas corpus.  Regardless of whether the trial court
abused its discretion in finding there existed a serious and immediate question to the
children's welfare,
 the trial court failed to issue any temporary orders pursuant to Section
157.374.  A temporary order is required by Section 157.374.  See Tex. Fam. Code Ann. Â§
157.374; see also Rocha v. Schuble, 809 S.W.2d 681, 683 (Tex. App.âHouston [14th
Dist.] 1991, orig. proceeding); cf. McCaleb v. Hansard, 697 S.W.2d 73, 75 (Tex. App.âEl
Paso 1985, orig. proceeding).  Further, the finding that there is a serious and immediate
question concerning the welfare of the child must be made in a written temporary order;
an oral finding is not sufficient.  Lau, 89 S.W.3d at 759; M.J.R. v. Vick, 753 S.W.2d 526,
528 (Tex. App.âFort Worth 1988, orig. proceeding) (citing Whatley v. Bacon, 649 S.W.2d
297, 299 (Tex. 1983); McElreath, 545 S.W.2d at 958).  Catherine Whatley has legal right
of possession of the children under the permanent custody order.  The custody agreement
entered into by Catherine Whatley has expired.  In the absence of a valid temporary order
awarding custody of the children to someone other than Catherine Whatley and a written
finding that a serious immediate question existed concerning the welfare of the children, 
Â 
Â 
Â 
Â 
Â 
Â 
the trial court was required to grant the application for writ of habeas corpus.  The relief
sought is therefore conditionally granted.  The writ will issue only if the trial court fails to
take appropriate action in accordance with this opinion. 
Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Donald R. Ross
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Date Submitted:Â Â Â Â Â Â April 5, 2006
Date Decided:Â Â Â Â Â Â Â Â Â April 6, 2006


OPINION ON MOTION ON REHEARING

Â Â Â Â Â Â Â Â Â Â The real party in interest, David Allen Whatley, has filed a motion for rehearing of
our opinion conditionally granting the petition for issuance of a writ of mandamus filed by
the relator, Catherine Marie Whatley.  In the motion for rehearing, David Whatley requests
that this Court consider his response attached to the motion for rehearing, withdraw our
prior opinion, and deny the petition for writ of mandamus.  We had requested that any
response from the respondent or real party in interest be "received by this court no later
than Monday, April 03, 2006."  Although apparently mailed on April 3, 2006, David
Whatley's response was not received by this Court until after the issuance of our opinion
conditionally granting the writ of mandamus.  In the response, David Whatley argues that
the trial court did not clearly abuse its discretion in denying application for the writ of
habeas corpus because a serious immediate question existed concerning the welfare of
the children.
Â Â Â Â Â Â Â Â Â Â After considering the response, we remain convinced of the correctness of our prior
opinion dated April 6, 2006.  The motion to reconsider is overruled.



Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Donald R. Ross
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Date:Â Â Â Â Â Â Â Â Â Â Â Â Â April 7, 2006

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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. 06-11-00141-CR
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  ______________________________
Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  RANDOLF SAMUEL FRANKLIN, II,
Appellant
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  V.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 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 Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â 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 264th
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 Â Â  Bell 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. 65121
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â 
Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 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  Memorandum 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  MEMORANDUM OPINION
Â 
Â Â Â Â Â Â Â Â Â Â Â  Randolf
Samuel Franklin, II,[1]
pled guilty to committing theft from a person, resulting in an order of
deferred adjudication community supervision for a period of five years.Â  The State moved to adjudicate guilt in this
matter after Franklin allegedly committed burglary of a habitation in violation
of the terms and conditions of his community supervision.Â  After Franklin pled true to the violation,
the trial court adjudicated him guilty and sentenced Franklin to two yearsÂ
imprisonment.Â Â Â  
Â Â Â Â Â Â Â Â Â Â Â  Franklin
argues that the trial court erred in refusing to allow his court-appointed
attorney to withdraw on the day of the contested hearing, rendering his plea
involuntary.[2]Â  Because we decide that Franklin failed to
preserve any complaint that his plea was involuntary, and this issue is
dispositive of FranklinÂs appeal, we affirm the trial courtÂs judgment.Â  
Â Â Â Â Â Â Â Â Â Â Â  At the
hearing on the motion to withdraw, Franklin asked the trial court to appoint
another attorney.Â  He stated, ÂMy family
is in the process of seeing if we can hire a lawyer.ÂÂ  When asked why he wished counsel to withdraw,
Franklin answered,
IÂve
spoken and seen him, I want to say about four times since December. Â All my questions have not been answered fully.
Â Very aggressive in the last two visits. Â If IÂm not mistaken, the last statement made
by Mr. Rodriguez, his assistant was good luck in the penitentiary, did not sit
right with me at all.Â  So I mean as the
list goes on and on. Â I have everything
written down if you need me to read the whole list, but like I said, I do not feel
comfortable going to trial with Mr. Barina or any of his assistants at this
time.Â  
Â 
In response, counsel assured that he was prepared for
trial.Â  
Â 
Â Â Â Â Â Â Â Â Â Â Â  On appeal,
Franklin does not allege that his counsel was ineffective.Â  He simply contends that the trial courtÂs
failure in allowing the withdrawal forced him to Âgo to trial with an attorney
in whom he had no confidence and who had failed to sufficiently inform
Appellant, and risk a life sentence on the [burglary] case or plead to the
lesser-included offense and face twenty years.ÂÂ Â  
Â Â Â Â Â Â Â Â Â Â Â  ÂAs
a prerequisite to presenting a complaint for appellate review, the record must
show that: Â (1) the complaint was made to
the trial court by a timely request, objection, or motion . . . .Â Tex. R. App. P. 33.1(a)(1). Â We have previously held that challenges to the
voluntariness of a plea of guilty must be raised at the trial court level to
preserve the complaint for review on appeal. Â Sims v.
State, 326 S.W.3d 707, 713 (Tex. App.ÂTexarkana 2010, pet. dismÂd) (citing Mendez v. State, 138 S.W.3d 334, 350
(Tex. Crim. App. 2004)); Starks v. State,
266 S.W.3d 605, 613 (Tex. App.ÂEl Paso 2008, no pet.). Â The issue could be raised by a motion for new
trial during the plenary jurisdictional authority of the trial court.Â  The trial court advised Franklin in open
court of his right to file a motion for new trial, a motion in arrest of
judgment, or to accept the courtÂs sentence.Â 
The record demonstrates that Franklin did not raise this issue
below.Â  Without presenting this issue to
the trial court in any manner, it had no opportunity to address the
merits.Â  Without a timely objection,
motion, or request that the trial court inquire into the voluntariness of his
plea, Franklin has forfeited his right to complain about the voluntariness of his
guilty plea.Â Â  FranklinÂs point of error
is overruled. 
Â Â Â Â Â Â Â Â Â Â Â  We affirm
the judgment of the trial 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 Â Â 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  Justice
Â 
Date Submitted:Â Â Â Â Â Â Â Â Â  November
1, 2011Â Â Â Â Â  
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â  November
15, 2011
Â 
Do Not PublishÂ Â Â Â Â Â Â Â Â Â  
Â 
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[1]Originally appealed to the Third Court of Appeals,
this case was transferred to this Court by the Texas Supreme Court pursuant to
its docket equalization efforts.Â  See Tex.
GovÂt Code Ann. Â§ 73.001 (West 2005).Â 
We are unaware of any conflict between precedent of the Third Court of
Appeals and that of this Court on any relevant issue.Â  See
Tex. R. App. P. 41.3.
Â 


[2]Franklin
also appeals his conviction of burglary of a habitation addressed in our cause
number 06-11-00142-CR on the same grounds. 


