












 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-11-00055-CR
                                                ______________________________
 
 
                                    MARQUAUS SIMMONS,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                      On Appeal from the 102nd
Judicial District Court
                                                          Red
River County, Texas
                                                         Trial Court
No. CR 00838
 
                                                   
                                               
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                            Memorandum Opinion by Justice Moseley




                                                     MEMORANDUM 
OPINION
            
            Marquaus
Simmons appeals from the revocation of his community supervision on his plea of
true and the imposition of a sentence of eight years’ imprisonment.  The State filed a motion to revoke for
failure to pay fees, restitution, and fines, his commission of subsequent
offenses, and use of marihuana.  At the
hearing, evidence was introduced in the form of testimony from an adult community
supervision officer and copies of convictions, and Simmons pled true to each
ground alleged.  The trial court revoked
his community supervision and sentenced him to eight years’ confinement.  
            Simmons’
attorney on appeal has filed a brief which discusses the record and reviews the
proceedings in detail. Counsel has thus provided a professional evaluation of
the record demonstrating why, in effect, there are no arguable grounds to be
advanced.  This meets the requirements of
Anders v. California, 386 U.S. 738
(1967); Stafford v. State, 813 S.W.2d
503 (Tex. Crim. App. 1981); and High v.
State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
            Counsel
mailed a copy of the brief and a letter to Simmons on May 16, 2011, informing
Simmons of his right to file a pro se response and of his right to review the
record.  No response has been filed.  Counsel has also filed a motion with this Court
seeking to withdraw as counsel in this appeal. 

            We
have determined that this appeal is wholly frivolous.  We have independently reviewed the clerk’s
record and the reporter’s record, and find no genuinely arguable issue.  See
Halbert v. Michigan, 545 U.S. 605, 623 (2005).  We, therefore, agree with counsel’s
assessment that no arguable issues support an appeal.  See
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).  
            We
affirm the judgment of the trial court.[1]
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          August
4, 2011
Date Decided:             August
5, 2011
 
Do Not Publish




[1]Since
we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to
withdraw from further representation of appellant in this case.  No substitute counsel will be appointed.  Should appellant wish to seek further review
of this case by the Texas Court of Criminal Appeals, appellant must either
retain an attorney to file a petition for discretionary review or appellant
must file a pro se petition for discretionary review.  Any petition for discretionary review must be
filed within thirty days from the date of either this opinion or the last
timely motion for rehearing that was overruled by this Court.  See
Tex. R. App. P. 68.2.  Any petition for discretionary review must be
filed with this Court, after which it will be forwarded to the Texas Court of
Criminal Appeals along with the rest of the filings in this case.  Should a petition for discretionary review be
filed after September 1, 2011, it should be filed directly with the Texas Court
of Criminal Appeals.  See Tex.
R. App. P. 68.3.  Any petition for
discretionary review should comply with the requirements of Rule 68.4 of the
Texas Rules of Appellate Procedure.  See Tex.
R. App. P. 68.4.



-footnote-id:ftn5'
href="#_ftn5" name="_ftnref5" title="">[5]  Pursuant to the request to reopen the evidence,
the trial court interviewed J.R.K. a second time.  Although there is no record of a hearing at
the time of the second interview, it is apparent the trial court changed its
custody decision in favor of Robert at that time.  This fact was clarified at an August 29
hearing, the purpose of which (both parties believed) was to offer evidence
regarding conservatorship.[6]  The trial court indicated that it previously
reopened the evidence (at the prior hearing for which there is no record),
interviewed J.R.K., and made a permanent change of custody in favor of Robert
at that time.  The trial court reopened
the evidence for the sole purpose of conducting a second interview with
J.R.K.  The final order thereafter
awarded Robert the exclusive right to designate the primary residence of
J.R.K.  
            A trial
court’s modification of conservatorship is reviewed for abuse of discretion.  In re P.M.B., 2 S.W.3d 618, 621 (Tex. App.—Houston [14th Dist.] 1999, no
pet.).  It is an abuse of discretion for
a trial court to rule without supporting evidence.  Id. (citing Gen. Tire, Inc. v. Kepple,
970 S.W.2d 520, 525 (Tex. 1998)).
            The rules of
procedure in cases affecting the parent-child relationship are the same as
those in civil cases generally.  Tex. Fam. Code Ann. § 105.003(a) (West
2008).  Because the competing motions for
modification were considered jointly at the final hearing (as extended by the
subsequent reopening of the evidence) both Glenna and Robert had the burden to
prove their competing claims.  See Tex.
R. Civ. P. 262, 265(b).  Glenna
was entitled to the opportunity to introduce evidence.  See Tex. R. Civ. P. 265(d).  In a suit seeking to modify the parent-child
relationship, the proponent must establish that modification would be in the
best interest of the child and:
(1) the circumstances of the child, a
conservator, or other party affected by the order have materially and
substantially changed since the earlier of:
 
            (A)
the date of the rendition of the order; or
 
            (B)
the date of the signing of a mediated or collaborative law settlement    agreement on which the order is based;
 
(2) the child is at least 12 years of age and
has expressed to the court in chambers as provided by Section 153.009 the name
of the person who is the child’s preference to have the exclusive right to
designate the primary residence of the child; or
 
(3) the conservator who has the exclusive right
to designate the primary residence of the child has voluntarily relinquished
the primary care and possession of the child to another person for at least six
months.
 
Tex. Fam. Code Ann.
§ 156.101 (West Supp. 2010).
 
            In response
to Glenna’s claims that she was not afforded the opportunity to present
evidence, Robert contends the trial court heard ample evidence at the temporary
hearing and again at the final hearing to permit a ruling on modification.[7]  Robert cites testimony from the temporary
hearing, but does not claim such evidence supports either a material and
substantial change in circumstances or the best interests of the child.  Moreover, this testimony was not introduced
or admitted as evidence at the final hearing. 
Accordingly, the evidence from the hearing on temporary orders could
neither be considered by the trial court in reaching its final orders, nor by
this Court on reviewing the final order. 
In re M.B.D., No.
06-10-00015-CV, 2011 WL 1709895, at *2 (Tex. App.—Texarkana May 6, 2011, no
pet.) (mem. op.); May v. May, 829
S.W.2d 373, 376 (Tex. App.—Corpus Christi 1992, writ denied).
            Robert
further contends that evidence at the final hearing supports the modification
order.  Robert testified that he is now
married and has a new baby.  Further,
J.R.K. was close to Robert’s family, who live in the area.  Glenna was considering a move in order to
increase her income and had spoken to J.R.K. about the case.  Robert had no intent to move from the area or
to change J.R.K.’s school.  Robert was
steadily employed, had a close relationship with his son, and J.R.K. wanted to
live with him.  Robert maintains that
this evidence represents a material and substantial change in the circumstances
of the parties since the decree of divorce was entered.  Robert further contends that the modification
is in the child’s best interests, because the split time possession schedule
was not a workable arrangement for J.R.K. 
Glenna talked to the child about custody and did not tell him of her
desire to move from the area.  On the
other hand, Robert claims that, because he is now remarried, has a new baby,
intends to live in the same place, and has a large family in the area with whom
J.R.K. is close, the modification is in J.R.K.’s best interests.
            Robert cites
the foregoing testimony in support of his contention that the trial court did
not make a ruling without hearing evidence and that this evidence is both
legally and factually sufficient to support the judgment.  Indeed, the trial court had before it the
foregoing evidence in advance of its ruling. 
Glenna complains, however, that she was denied the opportunity to
present her own evidence regarding conservatorship.  Glenna’s brief testimony at the earlier
hearing centered on geographical restrictions and child support.  This testimony was offered only after the
trial court made a ruling on the record that primary conservatorship would be
with Glenna.  In advance of that ruling,
Glenna had expressly reserved her right “to put on evidence as to why he ought
to be with mom rather than dad,” if J.R.K. had indicated he wanted to reside
with his father.  Once the trial court
ruled in her favor, there was no need for Glenna to offer such evidence.
            When the
evidence was reopened for the purpose of a second interview by the trial court
with J.R.K., Glenna was denied the opportunity to present evidence regarding
conservatorship.  At the August hearing,
the following exchange took place between counsel for Glenna and the trial
court:
            [Attorney for Petitioner]:  We had an agreement back in May, that
agreement covered everything from custody to the motion to enforcement and contempt.  Since that agreement is blown out of the
water now, and you said you would allow them to reopen, then we’re prepared to
put on evidence of our motion for enforcement and contempt.  We also wanted to put on evidence in response
to their motion to reopen.
 
            .
. . .
 
            THE
COURT:  My position is that - - when I
talked to the child, I made the permanent change at that time.     
 
            [Attorney
for Petitioner]:  That was not the way I
understood that, Judge.
 
            .
. . .
 
            THE
COURT:  As far as I’m concerned, I’m
ready to sign a final order.    
 
            After this
hearing, Glenna filed a formal bill of exception, setting forth the testimony
she would have given if provided the opportunity to do so.  After a brief hearing with respect to this
formal bill, the trial court denied the bill.[8]  In an evidentiary context, a bill of
exception is to tender evidence for the record when a trial court refuses to
admit evidence and counsel then provides that evidence for appellate review.  See Tex.
R. App. P. 33.2.  For a bill of
exception, the evidence must have been presented to the trial court at trial or
no error is shown.  Spivey v. James, 1 S.W.3d 380, 385 (Tex. App.—Texarkana 1999, pet.
denied); Clone Component Distribs. of Am., Inc. v. State, 819 S.W.2d 593, 596–97
(Tex. App.—Dallas 1991, no writ) (bill of exception must show evidence was
actually offered and excluded).  Here,
the proffered testimony was not actually offered and excluded.  While there was a request to present
testimony, the trial court did not hear the proffered testimony before
excluding it.  Rather, the trial refused
Glenna’s request to testify.  In this
case, the filing of a formal bill of exception was unnecessary.
            Normally, a
complaint regarding the exclusion of evidence can be made on appeal only if the
appellate record reflects the substance of the excluded evidence.  Tex.
R. Evid. 103(a)(2).  This can be
done through a formal or an informal bill of exception (offer of proof).  See
Bobbora v. Unitrin Ins. Servs., 255
S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.)  This rule does not apply, however, when the
trial court refuses to permit the appellant to present any evidence.  See
Producer’s Constr. Co. v. Muegge, 669 S.W.2d 717, 719 (Tex. 1984); Safway Scaffold Co. of Houston, Inc. v.
Safway Steel Prods., Inc., 570 S.W.2d 225, 229 (Tex. App.—Houston
[1st Dist.] 1978, writ ref’d n.r.e.). 
When the appellant is not allowed to present any evidence at trial and
the appellant objected to this action, there is no necessity for a bill of
exception.  Safway Steel Prods., Inc.,
570 S.W.2d at 229.
            Here, once the trial court reopened
the evidence and J.R.K. opted for Robert, Glenna sought, but was denied, the
right to submit evidence on point.[9]  We hold that the trial court thus erred in
denying Glenna the opportunity to present evidence in support of her
motion.  See Tex. R. Civ. P.
262, 265.  We need not address the issue
of whether the trial court abused its discretion based on the alleged legal and
factual insufficiency of the evidence.[10]
            We reverse
the trial court’s order and remand to the trial court for further proceedings
consistent with this opinion.
 
 
                                                                                    Josh
R. Morriss, III
                                                                                    Chief
Justice
 
Date Submitted:          June
24, 2011  
Date Decided:             July
8, 2011
 
 



[1]Robert’s
attorney made the following statement to the trial court:  “[W]e have a split-time arraignment
[sic].  Both parties have filed for the
custody.  Like I said, he’s now 11 years
old.  Whatever he wants to do, my client
said is fine.”  
 


[2]Glenna’s
attorney stated, “I think everybody anticipates that he’s going to say he wants
to live with mom.  If, for some reason,
he doesn’t say that, then I’m going to have to be in the position of having to
put on evidence as to why he ought to be with mom rather than dad.”  
 


[3]The
remainder of the hearing centered on whether Lamar County residency
restrictions should remain in place for Glenna and whether Robert’s child
support payments should be modified.
 


[4]Robert
was granted visitation in accordance with the standard possession order.  The trial court increased Robert’s child
support payments and denied Glenna’s request to lift the Lamar County residency
restriction.  
 


[5]Glenna
opposed the motion to reopen, claiming the request was not the result of new
evidence or an inadvertent mistake. 
According to Robert’s affidavit, J.R.K. had a change of heart.  The timing of this change coincided with
Robert’s extended summer possession period with J.R.K. 
 


[6]Counsel
for Robert stated, “We had a hearing a few months ago and changed custody to
the mother.  Subsequent to that time, we
filed a motion to reopen.  You
interviewed the child again.  He wanted
to live with the father.  You switched it
back to the father.  Mr. Starnes, at that
time that we had that hearing on the motion to reopen, asked to put on evidence
to you.  And I believe that’s what we’re
here about today.”  


[7]Robert
further contends Glenna could have presented her evidence at the final hearing,
but failed to do so.  Robert does not
claim Glenna waived her right to offer evidence.


[8]Counsel
for Robert objected to the formal bill of exception, contending that the trial
court could not know what Glenna’s testimony would have been.  The trial court then stated, “I’m going to
deny it.”  
 


[9]Glenna
had no opportunity to offer evidence of a material and substantial change of
circumstance or why it was in the child’s best interests to live with her.
 


[10]Counsel
for Glenna indicated at the August hearing that there was an agreement that
Glenna be named joint managing conservator with the exclusive right to
determine the child’s primary residence and that, in exchange, neither party
would pursue their respective motions for enforcement.  No such agreement was dictated into the
record.  Even though Glenna also filed a
motion for enforcement of back due child support, she does not claim on appeal
that she should be entitled to present evidence regarding that issue.


