      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00023-CV



                                     Harold Davis, Appellant

                                                 v.

                Texas Department of Family and Protective Services, Appellee




      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
           NO. 198,616-B, HONORABLE RICK MORRIS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Harold Davis appeals the district court’s judgment terminating his parent-child

relationship with his son B.L.K. He raises a single issue contending that he was denied the effective

assistance of counsel. See In re M.S., 115 S.W.3d 534, 545 (Tex. 2003) (right to effective assistance

of counsel in parental-rights termination proceeding). Because the record properly before this Court

does not support Davis’s claim, we affirm the district court’s judgment.


Background

               B.L.K. tested positive for cocaine and marihuana at birth, and his mother admitted

to nurses that she had frequently used drugs during her pregnancy. The Texas Department of Family

and Protective Services (the Department) was appointed temporary managing conservator of B.L.K.

on June 25, 2003, and he was placed in foster care when he was two days old. Davis was not
identified as B.L.K.’s father for some time after the Department became involved in the case. He

was first alleged as B.L.K.’s biological father in the Department’s second amended petition, filed

on November 14, 2003, listing his address as the Bell County Jail. However, Davis was not served

with the Department’s petition until March 2004. Davis filed a denial of paternity and was ordered

to submit to paternity testing no later than May 27, 2004. Davis did not appear at the May 27 status

hearing and did not submit to testing as ordered. He was convicted of possession of cocaine on July

18 and sentenced to five years in prison. A blood sample was collected from Davis on September

9, 2004, just before he was sent to the Texas Department of Criminal Justice Dawson Unit. On

September 30, 2004, attorney Billy Ray Hall was appointed to represent Davis in the termination

proceeding after DNA testing identified Davis as B.L.K.’s biological father.1 A final hearing on the

termination of Davis’s parental rights was set for December 14.

                At the outset of the hearing on December 14, Hall asked the associate judge for a

continuance, explaining that he had yet to confer with his client. Hall told the court that he had sent

correspondence to Davis at the Dawson Unit, but Davis had not responded. Hall attempted to

contact Davis by phone but was informed by the warden’s office that the phone system for attorney-

client interviews was inoperable and that he would have to interview his client in person. Hall

declined to travel to the Dawson Unit to visit with Davis before the hearing. The associate judge

denied the continuance and proceeded with a brief final hearing. The Department’s only witness was

its caseworker Cheryl Parker, who testified about the circumstances of B.L.K.’s removal from his




       1
           B.L.K.’s mother’s parental rights were terminated on September 30, 2004.

                                                  2
mother and B.L.K.’s satisfactory placement with foster parents. She testified that B.L.K. had bonded

with the foster parents and that they wished to adopt him.

               Parker described her limited conversation with Davis. She recounted that Davis once

told her that “he wanted his child if he was found to be the dad.” However, she opined that Davis

could not properly meet the needs of his child and that the termination of his parental rights was in

B.L.K.’s best interest. Records reflecting Davis’s conviction for possession of cocaine and five-year

sentence were also admitted into evidence. Although Hall cross-examined Parker, Hall presented

no evidence on Davis’s behalf, and his sole argument in opposition to termination was the fact that

he had not yet conferred with his client. The associate judge recommended that Davis’s parental

rights be terminated, and the district court’s decree of termination was signed that day.


Affidavit of Billy Ray Hall

               Before addressing the merits of Davis’s issue, we must decide whether we may

properly consider facts contained in an affidavit attached to Davis’s appellate brief. Davis has

attached an affidavit from Hall, which describes Hall’s contacts with his client. In the affidavit, Hall

states that he first spoke with Davis on January 3, 2005, after the hearing but before the district

court’s plenary jurisdiction had expired.2 After asking to think overnight about his options, Davis

told Hall on the following day that he did not wish to contest the termination of his parental rights.

Hall proceeded according to his client’s wishes, informed the Department of Davis’s decision, and




        2
           Hall’s affidavit does not discuss the full contents of his conversation with Davis but makes
it clear that he informed Davis about his paternity and the termination of his parental rights.

                                                   3
sent Davis an affidavit to sign stating that he did not wish to pursue an appeal. Hall then states in

his affidavit that all of his correspondence to Davis had been sent to the wrong address:


       On February 5, 2005, it was discovered that the correspondence address we had on
       file for Mr. Davis was not correct and the Post Office Box address we were given for
       the Dawson Unit had two number digits transposed. None of the previous
       correspondence we had sent had been returned to us by the postal service, so we were
       not aware that the address was wrong.


Hall explains that a copy of a motion to dismiss the appeal and an affidavit for Davis to sign was sent

to the correct address on the day the mistake was discovered. Hall received a letter from Davis on

February 22 informing Hall that Davis “[was] not willing to give up parental rights to his child . . .

he only found out the child was his biological son in January 2005 after receiving the results from

a DNA paternity test, and that he [would] not abandon his responsibility for his child.”

               We cannot consider evidence attached to briefs that does not also appear in the

appellate record. See Sabine Offshore Servs. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.

1979); Beck v. Walker, 154 S.W.3d 895, 899 (Tex. App.—Dallas 2005, no pet.); Carlisle v. Phillip

Morris, Inc., 805 S.W.2d 498, 501 (Tex. App.—Austin 1991, writ denied). Davis had an

opportunity to introduce additional facts into the record through a motion for new trial. The docket

reflects that Davis’s motion for new trial was passed by Davis’s appellate counsel on January 13,

nine days after Davis had informed Hall that he did not wish to pursue an appeal. Having now

changed his mind, Davis cannot introduce new evidence on appeal after he waived his opportunity

to develop the record through a motion for new trial. Accordingly, we may not consider Hall’s

affidavit in our determination of whether Davis was denied the effective assistance of counsel.



                                                  4
Ineffective Assistance of Counsel

               The Texas Supreme Court has held that the statutory right to counsel in a parental-

rights termination proceeding includes a guarantee that counsel will perform effectively. See In re

M.S., 115 S.W.3d at 544. The court adopted the standard set forth by the United States Supreme

Court in Strickland v. Washington, 466 U.S. 668 (1984), for considering claims of ineffective

assistance of counsel:


       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive the
       defendant of a fair trial, a trial whose result is reliable.


See In re M.S., 115 S.W.3d at 545. Prejudice is shown when there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id.

               Davis does not argue his ineffective assistance of counsel claim under the Strickland

standard. Rather, he contends that Hall’s failure to communicate with him before the hearing

amounted to a constructive denial of counsel from which we must presume prejudice. In an opinion

released on the same day as Strickland, the United States Supreme Court held that prejudice must

be presumed where circumstances exist that make it “unlikely that the defendant could have received

the effective assistance of counsel.” United States v. Cronic, 466 U.S. 648, 666 (1985); see also

Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (prejudice presumed where lawyer slept

                                                 5
during portions of trial). In Cronic, the court cited Powell v. Alabama, 287 U.S. 45 (1932), where

counsel in a highly charged capital murder prosecution was appointed on the day of trial, as an

example of the sort of circumstances in which prejudice is presumed. Cronic, 466 U.S. at 660.3 But

see Avery v. Alabama, 308 U.S. 444 (1940) (prejudice not presumed where counsel appointed three

days before capital murder trial).

               The record properly before us in this case indicates that Hall was appointed seventy-

five days before trial. Although Hall announced that he was not ready for trial, his cross-

examination of the Department’s only witness demonstrates that he was familiar with the

Department’s evidence. Hall informed the trial court that he had sent correspondence to Davis and

that Davis had not replied. There is no evidence properly before us that Davis did not receive Hall’s

correspondence or that Davis was otherwise prevented from contacting his attorney. The record

equally supports the conclusion that Davis was not interested in defending his parental rights and

simply ignored the letters from Hall. Because Hall was appointed well before the final hearing and

was familiar with the case, we hold that the circumstances of Hall’s representation of Davis do not

make it unlikely that he could have received the effective assistance of counsel. See Cronic, 466

U.S. at 666. Accordingly, we will evaluate Davis’s claim under the Strickland standard.

               Even assuming without deciding that Hall’s failure to confer with Davis until after

the hearing was deficient performance under Strickland, Davis must make the requisite showing of




       3
          In Cronic, the United States Supreme Court did not presume prejudice where an
inexperienced real estate lawyer was appointed only twenty-five days before trial to represent a
criminal defendant in a complex financial fraud prosecution. See United States v. Cronic, 466 U.S.
648, 649 (1984).

                                                 6
prejudice. Allegations of ineffective assistance of counsel must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness. Mallet v. State, 65 S.W.3d

59, 63 (Tex. Crim. App. 2001). The trial record alone will ordinarily be insufficient to support a

claim of ineffective assistance of counsel, and the record must be developed through a motion for

new trial.4 See Moore v. State, 140 S.W.3d 720, 728 (Tex. App.—Austin 2004, pet. ref’d).

               Here, it is undisputed that Davis has had no contact with his son, having learned he

had a son only after he was incarcerated. The trial court specifically found that Davis (1) engaged

in conduct that endangered B.L.K.’s physical and emotional well-being; (2) voluntarily, and with

knowledge of the pregnancy, abandoned B.L.K.’s mother and failed to provide support or medical

care; (3) failed to support the child since birth; and (4) knowingly engaged in criminal conduct

resulting in his conviction, confinement, and inability to care for the child for a period of over two

years from the filing of the Department’s petition. The record indicates that Davis did not regularly

appear at hearings in the case and only once expressed any interest in taking responsibility for B.L.K.

prior to filing this appeal. Although incarceration alone does not justify termination, B.L.K.’s

mother’s parental rights were terminated prior to the hearing and Davis has not even alleged how he

would provide or arrange to provide care for B.L.K while he is in prison. See In re Caballero, 53

S.W.3d 391, 395 (Tex. App.—Amarillo 2001, pet. denied). The record does not demonstrate that

the outcome of the termination proceeding would have been different had he conferred with counsel




       4
         Although Hall filed a motion for new trial raising the fact that he had yet to confer with
Davis, the motion was passed.

                                                  7
prior to the hearing. See Strickland, 466 U.S. at 694; In re M.S., 115 S.W.3d at 545. We overrule

Davis’s claim of ineffective assistance of counsel.


Conclusion

               Having overruled Davis’s only issue, we affirm the district court’s judgment

terminating Davis’s parental rights to B.L.K.




                                                Bea Ann Smith, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: November 3, 2005




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