
NO. 07-07-0166-CR
NO. 07-07-0167-CR
NO. 07-07-0168-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 4, 2007
______________________________

ELLIS BUTLER, 

								Appellant

v.

THE STATE OF TEXAS, 

								Appellee
_________________________________

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NOS. 49,819-C; 50,096-C; 50,097-C; HON. PATRICK A. PIRTLE, PRESIDING
_______________________________

Memorandum Opinions
_______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
	Ellis Butler (appellant) appeals from the orders for withdrawal of funds from his
inmate trust account to offset court costs assessed in his prior convictions.  We dismiss the
appeals for lack of jurisdiction.
	 The record before us reveals that the "Order[s] for Withdrawal from Inmate
Account. . ." were signed on April 8, 2005.  Pursuant to the Texas Rules of Appellate
Procedure, appellant was required to file his motions for new trial or notices of appeal with
the clerk of the trial court no later than 30 days after the signing of the orders, or by May
9, 2005.  The notices of appeals were filed on May 2, 2007.  Because the deadline to
perfect an appeal was May 9, 2005, the notices appeared untimely.  Tex. R. App. P. 26.2
(stating that one must file a notice of appeal within 30 days of the date the final order is
signed, unless that deadline has been extended by motion or rule of procedure). 
Furthermore, no motion (timely or otherwise) to extend the May 9th deadline was received
by this court.  
	By letter dated May 21, 2007, we directed appellant to explain why the notices of
appeal were late or why he believed them to be timely.  The explanation was due by May
31, 2007.  He was also told that the failure to comply with this directive would result in the
dismissal of the appeals.  To date, no response has been received. 
	 A timely notice of appeal is essential to invoke our appellate jurisdiction.  In re
A.L.B., 56 S.W.3d 651, 652 (Tex. App.-Waco 2003, no pet.).  If the notice is untimely, then
the court of appeals can take no action other than to dismiss the proceeding.  Id.  The
notice at bar being untimely, we dismiss the appeals for want of jurisdiction. 

							Brian Quinn
						          Chief Justice

Do not publish.

#160;     Authority and Application 
          The standards of review are discussed in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex.
2002 and In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) to which we refer the parties.  Further,
we need only determine if evidence of one of the statutory grounds is sufficient to support
termination as well as that termination is in the best interest of the child.  In re K.C.B., 280
S.W.3d 888, 894-95 (Tex. App.–Amarillo 2009, pet. denied) (stating that we may affirm if
the evidence is sufficient on any one statutory ground relied upon by the trial court when
there is also a finding that termination is in the best interest of the child).  
          One of the grounds alleged for termination was that appellant had knowingly
engaged in criminal conduct that resulted in his conviction of an offense and confinement
or imprisonment and inability to care for the child for not less than two years from the date
of the filing of the petition, September 18, 2008.   See Tex. Fam. Code Ann. §161.001(1)(Q)
(Vernon Supp. 2009).  The evidence showed that appellant had been imprisoned for
murder since 2001.  At the time of the hearing on January 6, 2009, appellant had served
eight years of a sixteen-year sentence.  He had twice been up for parole and been denied. 
Although he would come up for parole again, he conceded there was no guarantee it would
be granted.    
          While evidence of the availability of parole is relevant in determining whether a
parent will be released from prison in two years, the introduction of such evidence does not
prevent a trier of fact from finding that the parent will continue to be incarcerated.  In re
H.R.M., 209 S.W.3d 105, 109 (Tex. 2006).  In other words, the mere possibility of parole
does not prevent one from forming a firm belief or conviction that the parent will remain
incarcerated for at least two years.  Id.  Given that 1) appellant participated in a murder in
retaliation for the shooting of a cousin, 2) appellant fled to California from Colorado to
escape arrest, 3) appellant was serving a sixteen-year prison term which began in 2001,
4) appellant has been denied parole twice, and 5) appellant cites us to no evidence of
record suggesting that future parole decisions may differ, there is evidence of record which
would enable the factfinder to form a firm conviction and belief that appellant would remain
in prison for at least two more years after the date the termination petition was filed.   
          Moreover, Santos provided no evidence that he would be able to or would care for
the child during the aforementioned two years, and that was his burden.  In re Caballero,
53 S.W.3d 391, 396 (Tex. App.–Amarillo 2001, pet. denied).  Nor did anyone testify that
they would or could do so on his behalf.  Evidence that an incarcerated parent merely left
the child with the other parent, absent some agreement illustrating that the other parent
would care for the child on his behalf, does not constitute the ability to provide care.  In re
H.R.M., 209 S.W.3d at 110.  Therefore, the record did permit the factfinder (i.e. the trial
court) to form a firm belief or conviction that the requirements of §161.001(1)(Q) had been
met.  
          Next, we must determine whether the evidence supports the trial court’s decision
that termination is in the best interest of the child.  In doing so, we may consider the indicia
known as the Holley factors.  Those factors include 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 parental abilities of the individuals
seeking custody, 5) the programs available to assist those individuals to promote the best
interest of the child, 6) the plans for the child by those individuals or by the agency seeking
custody, 7) the stability of the home, 8) the acts or omissions of the parent indicating that
the existing parent/child relationship is not a proper one, and 9) any excuse for the acts or
omissions of the parent.  In re P.E.W., 105 S.W.3d 771, 779-80 (Tex. App.–Amarillo 2003,
no pet.).  Moreover, it is not necessary to show that each factor favors termination, id. at
780, and the list is not exhaustive.  In re C.J.F., 134 S.W.3d 343, 354 (Tex. App.–Amarillo
2003, pet. denied).  There must simply be enough evidence to enable the factfinder to form
a firm belief or conviction that the child’s best interest justifies termination.  In re P.E.W.,
105 S.W.3d at 780.  
          Evidence appears of record that 1) Santos had been incarcerated since the child
was six months old and the child was eight years old at the time of trial, 2) Santos saw his
son four times while imprisoned in California but had not seen him since he was extradited
to Colorado and had not maintained any significant contact with the child, 3) he had not
provided support for the child, 4) threats had been made against the life of the child by
others due to Santos having testified against his cousins, 5) the child’s name had been
changed to protect him from these threats, 6) Santos threatened the child’s mother that he
would kill her if she ever allowed his son to call someone else “dad,” 7) Abraham Sanchez
is the only father the child has known, 8) Abraham and Toni have one child together and
she was pregnant with another, and 9) Abraham testified he wants to be able to care for
Santos’ son if something happens to his wife.
          Incarceration makes Santos’ future uncertain with respect to meeting the child’s
need for permanence.  In re M.D.S., 1 S.W.3d 190, 200 (Tex. App.–Amarillo 1999, no
pet.).  Based on this and the evidence mentioned above, a rational factfinder could also
form a firm conviction or belief that termination of the parent/child relationship at bar was
in the best interest of the child.  
          Having found that the factfinder could legitimately conclude that one ground for
termination was established and that termination was in A.J.P.’s best interest, we overrule
all of appellant’s issues and affirm the termination order.
 
                                                                           Brian Quinn 
                                                                          Chief Justice    
