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Affirmed and Majority and Concurring Opinions filed
July 14, 2005.
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-04-00458-CV
____________
 
IN THE INTEREST OF
K.M.H.
 

 
On Appeal from the 300th
District Court
Brazoria County, Texas
Trial Court Cause No. 23903*RH03
 

 
M A J O R I T Y   O P I N I O N
Earl Leroy Hoback appeals from a judgment
terminating his parental rights to his daughter, K.M.H.  On appeal, Hoback complains (1) the trial
court erred in denying his request for a jury trial, (2) the trial court erred
in denying counsel=s request to withdraw from representation,
and (3) trial counsel was ineffective. 
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND




Earl Hoback is the father, and Melissa
Kite is the mother, of K.M.H., born April 8, 2003.  Four days after her birth, K.M.H. was placed
in protective custody.  On April 14,
2003, the Brazoria County Children=s Protective
Services Unit, Texas Department of 
Protective and Regulatory Services (ACPS@), filed a suit
affecting the parent-child relationship in which CPS sought temporary
conservatorship of the child and termination of the parent-child relationship
between K.M.H. and both parents.  After a
bench trial, the trial court terminated both parents= parental
rights.  Hoback files this appeal from
the trial court=s judgment terminating his parental
rights.  The trial court filed findings
of fact and conclusions of law; on appeal, Hoback does not challenge the
findings of fact and conclusions of law. 

The trial court=s findings and
conclusions are excerpted below, in pertinent part:
Findings of Fact
1.       The child who is the subject of this suit
is [K.M.H.]
2.       The mother of the child is [Kite] and the
father of the child is [Hoback].
3.       [CPS] was named temporary managing
conservator of the child on [the] 14[th of] April 2003.
4.       [Kite] did not appear for trial and
wholly made default.
5.       [Hoback] did not appear for trial and
wholly made default.
6.       All counsel announced ready for trial.
7.       [Kite] consumed alcohol and smoked
marijuana regularly during her pregnancy with [K.M.H.]
8.       On 04-12-03, [Kite] smoked marijuana and
drank alcohol to the point of intoxication.
9.       On 04-12-03, [Kite] breast fed [K.M.H.] following
her own usage of alcohol and marijuana.
10.     On 04-12-03, [Kite] allowed [K.M.H.] to
ride in a vehicle operated by [Hoback] who was operating the vehicle while he
was intoxicated.
11.     [Kite] used Acrank@ and cocaine during her pregnancy
with [K.M.H.]
12.     [Kite] knew that her use of alcohol,
marijuana, Acrank,@ and cocaine during her pregnancy
with [K.M.H.] endangered [K.M.H.]
13.     [Hoback] was aware of [Kite=s] use of alcohol, marijuana, and
controlled substances during her pregnancy with [K.M.H.] and he used alcohol
and drugs with her during the period of her pregnancy.
14.     [Hoback] knew that [Kite=s] abuse of drugs and use of
alcohol during her pregnancy with [K.M.H.] endangered the child.
15.     On 04-12-03, [Hoback] operated a motor
vehicle while he was intoxicated while [K.M.H.] was a passenger in the vehicle.




. . .
17.     [Hoback] pleaded guilty to the offense of
endangering a child by operating a motor vehicle while he was intoxicated on
04-12-03 endangering [K.M.H.]
. . .
19.     The temporary orders entered in this cause
on 04-22-03 specifically established the following actions [Kite] and [Hoback]
needed to accomplish to obtain the return of the child:  submit to a psychological assessment and
follow all recommendations of the psychologist; successfully complete
counseling; submit to a complete drug and alcohol abuse assessment and to
follow all recommendations made by facility staff for further assessment or
treatment; remain drug and alcohol free during the pendency of the suit; obtain
and maintain a safe and stable home; and, comply with the service plans.
. . .
22.     [Hoback] failed to comply with and complete
the foregoing actions necessary for him to obtain return of the child.
23.     [Hoback] tested positive for marijuana on
04-23-03, 05-15-03, 06-18-03, 06-26-03, and 08-25-03.
24.     [Hoback] did not exercise any visitation
with [K.M.H.] from 08-29-03 through 03-15-04.
. . .
26.     [Hoback] did not obtain or maintain a safe
and stable home during the pendency of the case.
27.     CPS provided and made the court-ordered services
available to [Hoback] and [Kite].
28.     CPS[=s] plans for the child are to pursue adoption of the child
by the foster family with which she has been placed since she was placed into
protective custody.
29.     [K.M.H.]=s needs are being met in her current placement and she is
provided with a safe and stable home.
Conclusions of Law
. . . 
6.       CPS has had temporary managing
conservatorship of [K.M.H.] in excess of nine months.
. . . 




9.       [Hoback] engaged in conduct that
endangered the physical or emotional well-being of [K.M.H.]
10.     [Hoback] knowingly placed [K.M.H.] with a
person who engaged in conduct that endangered the physical or emotional
well-being of [K.M.H.]
11.     [Hoback] failed to comply with the
provisions of the temporary orders in this cause which specifically established
the actions he needed to take to obtain return of [K.M.H.]
12.     [Hoback] failed to regularly visit or
maintain significant contact with [K.M.H.]
13.     CPS made reasonable efforts to return
[K.M.H.] to Hoback.
14.     [Hoback] has demonstrated an inability to
provide the child with a safe environment.
15.     Termination of the parent-child
relationship between [Hoback] and [K.M.H.] would be in the best interests of
the child.
16.     It
would be in the best interests of [K.M.H.] for CPS to be named the managing
conservator of the child.
DISCUSSION
I.        Denial of Request for
Jury Trial and Denial of Motion to Withdraw
In his first and second points of error,
Hoback argues the trial court erred in denying his request for a jury trial and
in denying trial counsel=s motion to withdraw.  At oral argument before this court, Hoback
orally waived these two points on appeal. 
Thus, we do not address the arguments made under these two points.
II.       Ineffective
Assistance of Counsel




In his third point of error, Hoback argues
trial counsel failed to provide him competent representation both during and
after the termination proceedings, in violation of his right to due process of
law.  Specifically, Hoback complains
counsel was ineffective in (1) failing to preserve legal and factual
sufficiency points of error, (2) failing to timely request a trial by jury, (3)
failing to make any requests for discovery, (4) failing to ensure a complete
record was made during significant pretrial motions, (5) failing to timely
withdraw from dual representation, and (6) failing to ensure Hoback was present
for trial.
A.      Standard
of Review
The statutory right to counsel in
parental-rights termination cases embodies the right to effective counsel.  See In re. M.S., 115 S.W.3d 534, 544
(Tex. 2003).  The Texas Supreme Court has
adopted the test enunciated in Strickland v. Washington,  466 U.S. 668 (1984), as the standard for
ineffective assistance in civil parental-termination proceedings.  In Strickland, the United States
Supreme Court stated:
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 Acounsel@ 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.
466 U.S. at 687. 
A defendant must successfully show both prongs of the Strickland
inquiry to establish an ineffective assistance claim.  See In re M.S., 115 S.W.3d at
545. 




AWith respect to
whether counsel=s performance in a particular case is
deficient, we must take into account all of the circumstances surrounding the
case, and must primarily focus on whether counsel performed in a >reasonably
effective= manner.@  In re M.S., 115 S.W.3d at 545 (quoting
Strickland, 466 U.S. at 687).  ACounsel=s performance
falls below acceptable levels of performance when the >representation is
so grossly deficient as to render proceedings fundamentally unfair . . . .=@  Id. (quoting Brewer v. State,
649 S.W.2d 628, 630 (Tex. Crim. App. 1983)). 
AIn this process,
we must give great deference to counsel=s performance,
indulging >a strong presumption that counsel=s conduct falls
within the wide range of reasonable professional assistance,= including the
possibility that counsel=s actions are strategic.@  Id. (quoting Strickland, 466
U.S. at 689; Garcia v. State, 57 S.W.3d 436, 440B41 (Tex. Crim.
App. 2001); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.CHouston [14th
Dist.] 1996, no pet.)).  AIt is only when >the conduct was so
outrageous that no competent attorney would have engaged in it,= that the
challenged conduct will constitute ineffective assistance.@  Id. (quoting Garcia, 57 S.W.3d
at 440; Thompson v. State, 9 S.W.3d 808, 812B13 (Tex. Crim.
App. 1999)).  Scrutiny of counsel=s performance is
highly deferential, and there is a strong presumption that counsel=s actions could
have been the result of sound trial strategy. 
Strickland, 466 U.S. at 688; Hernandez v. State, 726
S.W.2d 53, 57 (Tex. Crim. App. 1986). 
Without testimony from trial counsel, we must presume counsel had a
plausible reason for her conduct. Gibbs v. State, 7 S.W.3d 175, 179
(Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  
With respect to the requirement under Strickland
that an appellant must show counsel=s deficient
performance prejudiced his defense, as explained in Mitchell v. State, A[t]his means that
the appellant must show a reasonable probability that, but for his counsel=s unprofessional
errors, the result of the proceeding would have been different.@  68 S.W.3d 640, 642 (Tex. Crim. App.
2002).  A Areasonable
probability@ is a probability sufficient to undermine
confidence in the outcome.  Id. at
642. 
Keeping the Strickland guidelines
in mind, we review Hoback=s ineffective assistance complaints.
B.      Preservation
of Legal and Factual Sufficiency Points of Error
Hoback complains counsel was ineffective
because she failed to preserve legal and factual sufficiency points of error by
neglecting to file the appropriate motions during and after trial.  




Hoback=s assertion
conflicts with the record.  The record
shows Hoback=s counsel timely filed a motion for new
trial on his behalf challenging both the legal and factual sufficiency of the
evidence.  Moreover, in non-jury trials,
it is not necessary to preserve in the trial court a complaint about the legal
and/or factual sufficiency of the evidence because such a complaint may be
raised for the first time on appeal.  See
Tex. R. App. P. 33.1(d).  Thus, Hoback was not barred from challenging
the legal and factual sufficiency of the evidence in this appeal, and counsel
was not ineffective in this regard.
C.      Request
for Jury Trial[1]
Hoback next argues he was denied effective
assistance of counsel because neither his first or second appointed trial
counsel, who represented both Hoback and Kite, requested a jury trial on his
behalf.[2]  Hoback contends it is fair to assume most
people in his situation would assume that the right to trial by jury is
fundamental and automatic.




The Family Code provides for trial by jury
upon request.  See Tex. Fam. Code Ann. ' 105.002  (Vernon Supp. 2005).  Unlike in criminal cases, the Family Code
does not require an express waiver of trial by jury.  See Tex.
Code Crim. Proc. Ann. art. 1.13 (Vernon 2005).  Under Texas Rule of Civil Procedure 216, to
make a proper request for a jury trial, a party must make a written request for
a jury trial and pay the jury fee at least thirty days before the date trial is
set.  See Tex. R. Civ. P. 216 (ANo jury trial
shall be had in any civil suit, unless a written request for a jury trial is
filed with the clerk of the court a reasonable time before the date set for
trial of the cause on the non‑jury docket, but not less than thirty days
in advance.@); In re V.R.W., 41 S.W.3d 183, 194
(Tex. App.CHouston [14th Dist.] 2001, no pet.) (AIn civil cases, the
right of a jury trial is not automatic, but, rather, arises only where a party
has demanded it and paid the applicable jury fee.@).  When a party has perfected its right to a
jury trial in accordance with Rule 216 but the trial court proceeds to trial
without a jury, the party must, to preserve error, either object on the record
to the trial court=s action or indicate affirmatively in the
record it intends to stand on its perfected right to a jury trial.  Sunwest Reliance Acquisitions Group, Inc.
v. Provident Nat=l Assur. Co., 875 S.W.2d 385,
387B88 (Tex. App.CDallas 1993, no
writ).  A refusal to grant a trial by
jury is harmless error where the record reflects that no material issues of
fact exist and an instructed verdict would have been justified.  Halsell v. Dehoyos, 810 S.W.2d 371,
372 (Tex. 1991).
The record shows Kite and Hoback=s first
appointed trial counsel filed an original answer on their behalf on January 20,
2004, but she did not file a request for a jury trial.  When Kite and Hoback=s first appointed
counsel later withdrew from representation, the trial court appointed a second
attorney to represent Kite and Hoback. 
The reporter=s record shows that at a hearing on March
9, 2004, Kite and Hoback=s second appointed trial counsel renewed
an earlier oral request for a jury trial which the trial court had
denied at a prior hearing (there is no record of the prior hearing).  In accordance with counsel=s previous oral
request for a jury trial, counsel stated at the March 9 hearing she was
submitting a written request for a jury trial.  The only written request for a jury trial in
the record was filed on February 27, 2003, on Kite=s behalf, and the
request was untimely because it was filed less than thirty days before
trial.  See Tex. R. Civ. P. 216.  Second appointed trial counsel did not make a
request for a jury trial on Hoback=s behalf.  




On the first day of trial, March 15, 2004,
second appointed counsel for Hoback and Kite made an oral motion to sever the
two trials between Kite and Hoback.  The
trial court denied the oral motion to sever. 
Counsel did not object to proceeding without a jury. 
Hoback argues counsel=s failure to
timely request a jury trial on his behalf constitutes ineffective
assistance.  Hoback relies on In re
J.C., 108 S.W.3d 914, 916B17 (Tex. App.CTexarkana 2003, no
pet.) as authority for his contention that counsel was ineffective by not
requesting a jury trial on his behalf; however, In re J.C., also a
parental-rights termination case, is distinguishable from the facts of this
case.  The record in In re J.C.
showed the father informed his court-appointed counsel, who was appointed
eleven days before trial, of his desire for a jury trial at the first available
opportunity, two days before trial was set to begin.  Id. at 916.  The father=s counsel filed a
written request for a jury trial, but the trial court denied the request
because it was untimely.  Id.  The court of appeals held the trial court
erred in denying the jury request even though it was untimely because counsel
filed the request for jury trial on behalf of the father at his first
opportunity.  Id. at 917.  Unlike In re J.C., the record in this
case does not show Hoback informed counsel of his desire to have a jury trial,
no request for a jury trial was made, and we may only speculate as to why
counsel did not file a jury request on Hoback=s behalf.  Furthermore, even if a request had been made
on Hoback=s behalf, the record reflects no material
issues of fact existed and an instructed verdict would have been
justified.  See id. (holding error
in denial of request for jury trial harmful where father testified extensively
at the final hearing and repeatedly denied that termination of his parental
rights would be in the best interests of his children; father=s testimony was
sufficient to defeat any motion for an instructed verdict).




We may not reverse for ineffective
assistance Awhen counsel=s actions or
omissions may have been based upon tactical decisions, but the record contains
no specific explanation for counsel=s decisions.@  Bone v. State, 77 S.W.3d 828, 830
(Tex. Crim. App. 2002).  The record here
does not provide an explanation for trial counsel=s failure to file
a jury request.  Because there is no
explanation in the record for counsel=s actions, which
could have been tactical, there has been no showing defeating the presumption
counsel provided effective assistance. 
Moreover, Hoback has not shown counsel=s failure to
request a jury trial prejudiced his defense. 
Accordingly, the failure of counsel in this case to file a timely
request for a jury trial does not constitute ineffective assistance of counsel.

D.      Lack
of Discovery
Hoback next argues ineffective assistance
of counsel is shown by trial counsel not filing any motions for discovery or
motions for disclosure in this case. 
Hoback claims responses to the discovery may have disclosed whether a
conflict of interest arose from trial counsel=s dual
representation of both Hoback and Kite.  
On appeal, Hoback does not cite any
authority in support of this contention. 
Hoback also has not shown evidence of anything his trial counsel failed
to discover, and he does not explain how formal discovery would have disclosed
a conflict or how it might have benefitted him.  Moreover, the record does not reveal whether
informal discovery by counsel had been conducted, and there is no showing in
the record that discovery directed to CPS would have factually changed any of
the proof at trial.  
Hoback=s complaint is not
firmly founded in the record; we may only speculate why counsel did not conduct
formal discovery and what such discovery may have revealed.  Hoback has failed to show counsel=s performance was
deficient in this regard and that the deficient performance prejudiced his
defense.  
E.      Record
of Pretrial Hearings
Hoback next complains counsel was
ineffective in not having three pre-trial hearings transcribed.  He asserts the record does not indicate an
agreement by the parties that no record be made of three pretrial hearings held
on January 20, 2004, February 10, 2004, and March 3, 2004.  Hoback claims he was harmed by counsel=s failure to have a
record made of the hearings on these dates because he now has no evidence of
any mistakes trial counsel may have made; he argues that because he cannot show
harm, he was harmed.




Texas Rule of Appellate Procedure 13.1(a)
requires a court reporter to attend court sessions and make a full record of
the proceedings, Aunless excused by agreement of the
parties.@  Tex.
R. App. P. 13.1(a).  Here, the
record does not show the parties agreed to the absence of the court reporter,
but the record also does not show either party objected to the court reporter=s absence.  Thus, the record does not show whether the
parties may have agreed not to have a record made of the three pretrial
hearings. 
We may only consider the record presented
to us, and we cannot speculate on what 
might or might not be in the missing portions of the record.  See In re. M.S., 115 S.W.3d at
546.  In addition to the bench trial, two
pretrial hearings, held on February 24, 2004 and March 9, 2004, were recorded
and included in the appellate record. 
Additionally, the April 27, 2004 hearing on  Kite=s and Hoback=s motions for new
trial was recorded and is part of the record. 
With regard to the three hearings appellant specifically complains of
lacking a record, the court=s docket sheet
reflects a permanency hearing was held on January 20, 2004; there is no
notation on the docket sheet regarding February 10, 2004; and a notation dated
March 3, 2004 states AMoorhead=s [(Hoback=s and Kite=s second appointed
counsel)] motions denied.@
          Hoback argues that if a record had been
made of the January 20, 2004 permanency hearing, the Aerrors that would
have been recorded would have been the evidence that Kite and Hoback were
separated and each of their plans which was evidence of a conflict in
representation@ and Aevidence as to
whether CPS was planning to move for permanent managing conservatorship instead
of termination.@ 
Hoback does not explain how the couple=s separation
creates a conflict of interest, and his other arguments as to what would have
been recorded if a record had been made are not firmly founded in the
record.  We may not speculate as to what
may have occurred during the January 20, February 10, and March 3 pretrial
hearings and why the hearings were not transcribed.  See In re. M.S., 115 S.W.3d at 546
(stating appellate court Amay only consider the record presented to
it, and . . . cannot speculate on what might or might not be in the missing
portions of the record.@).




Hoback has not shown counsel=s performance in
not ensuring the three pretrial hearings were recorded was deficient and that
the deficient performance prejudiced his defense.  See In re M.S., 115 S.W.3d at
546.  Thus, counsel=s failure in this
case to ensure the entire proceedings were recorded does not constitute
ineffective assistance of counsel.
F.       Dual
Representation
Hoback argues counsel was ineffective due
to an alleged conflict in counsel=s dual representation
of both Hoback and Kite.  Hoback asserts
the interests of Kite and Hoback diverged because the evidence at trial showed
Kite had requested permanent managing conservatorship be granted to the foster
family currently taking care of K.M.H. or that the child be placed with
relatives.  Hoback further asserts
counsel=s ineffectiveness
is shown by the following:  (1) Hoback=s first trial
counsel filed a counterpetition only on Kite=s behalf; (2)
Hoback=s second trial
counsel filed three pretrial motions, a motion to extend final order date, a
motion for mediation, and a request for jury trial, only on Kite=s behalf; (3)
second trial counsel stated during a March 9 hearing that she did not know she
represented Hoback;[3]
and (4) second trial counsel failed to explain to the trial court why she
needed to withdraw from representation of Hoback at the March 9 pretrial
hearing and on March 15, the first day of trial.     




On March 5, 2004,[4]
Hoback=s second trial
counsel filed a motion to withdraw as counsel for Hoback, listing the following
grounds for withdrawal:  Kite and Hoback
were no longer in a romantic relationship with each other, they no longer lived
together, the  frequency of their
participation in the services provided by CPS was not the same, and they had
differences in how this case should be resolved.  In addition, the motion to withdraw alleged
Hoback or Kite might blame the other for conduct related to the termination and
might be willing or able to separate and remain separate from the other party.
Section 107.013(a)(1) of the Texas Family
Code provides that indigent parents who are defendants in the same termination
lawsuit are entitled to non-conflicted counsel. 
Tex. Fam. Code Ann. ' 107.013(b)
(Vernon Supp. 2005).  In deciding whether
there is a conflict of interest between parents opposing termination in a
single lawsuit, the trial court must determine whether there is a substantial
risk that counsel=s obligations to one parent would
materially and adversely affect his or her obligations to the other
parent.  In re B.L.D., 113 S.W.3d
340, 343 (Tex. 2003).  In evaluating
whether there is a substantial risk of a conflict of interest before trial, the
trial court should consider the available record to determine the likelihood
that the parents= positions will be adverse to each
other.  Id. at 347.  For example, when reviewing a record of pre‑trial
proceedings, the trial court may consider the allegations in the petition
against each parent, evidence adduced during pre‑trial hearings, and the
parents= statements and
positions taken in the course of pre‑trial proceedings.  A trial court=s determination of
whether there was a conflict of interest is reviewed for an abuse of
discretion.  Id. 
Hoback argues ineffectiveness is shown by
trial counsel=s failure to file pretrial motions on his
behalf and her failure to explain to the trial court why she needed to withdraw
from representation of Hoback at the March 9 pretrial hearing and on March 15,
the first day of trial. 




A review of the pre-trial record in this
case shows no substantial risk that trial counsel=s obligations to
Kite would materially and adversely affect her representation of Hoback.  The petition for termination alleged grounds
of endangerment against both Hoback and Kite. 
The allegations permitted termination based not only on each parent=s own conduct
endangering K.M.H., but upon each parent=s knowing exposure
of K.M.H. to the other parent=s endangering
conduct.  See Tex. Fam. Code Ann. ' 161.001(1)(E)
(Vernon 2002).  Consequently, evidence
regarding Hoback=s conduct could tend to prove the grounds
supporting Kite=s termination, and vice versa.  See In re 
B.L.D., 113 S.W.3d at 347.  
In her counterpetition, filed January 20,
2004, Kite alleged she and Hoback Aare or will be
separated@ and the Aappointment of the
parents as joint managing conservators would not be in the best interest of the
child.@  Kite further alleged that it would be in the
best interest of the child that she be appointed sole managing conservator of
the child.  On January 20, counsel filed
a joint original answer on behalf of both Hoback and Kite wherein both parents
entered a general denial.
Hoback has not shown his and Kite=s interests
conflicted to create a substantial risk that counsel could not effectively
represent each of them in the same trial. 
Other than the general statement in trial counsel=s motion to
withdraw that Hoback and Kite had differences in how this case should be
resolved, there is no evidence in the record showing Hoback=s interests were
adverse to Kite=s and no evidence of an actual
conflict.  Moreover, even if we were to
assume counsel was deficient in these regards, Hoback has not shown counsel=s errors were so
serious as to deprive him of a fair trial. 

Therefore, based on the record before us,
we conclude appointed counsel=s obligations to
Kite did not materially and adversely effect counsel=s obligations to
Hoback, and counsel=s dual representation did not constitute
ineffective assistance.
G.      Hoback=s Presence at
Trial
Lastly, Hoback complains trial counsel was
ineffective in failing to make arrangements for him to be present at
trial.  On the date of trial, Hoback was
in boot camp in San Antonio.  Hoback
argues trial counsel=s failure to request a bench warrant
resulted in the trial court being unable to consider whether Hoback was
entitled to be present at trial.




Hoback concedes an inmate does not have an
absolute right to appear in person in every court proceeding.  See In re Z.L.T., 124 S.W.3d 163, 165
(Tex. 2003) (stating Aan inmate does not have an absolute right
to appear in person in every court proceeding@).  Instead, an inmate=s access to the
courts is weighed against the protection of our correctional system=s integrity.  Id. at 166 (holding trial court did
not abuse its discretion in overruling 
pro se inmate=s request for a bench warrant because the
inmate failed to provide any factual information showing why his interest in
appearing outweighed the impact on the correctional system). Court=s consider a
variety of factors when deciding whether to grant an inmate=s request for a
bench warrant, including:  the cost and
inconvenience of transporting the inmate to court; the security risk the inmate
presents to the court and public; whether the inmate=s claims are
substantial; whether the matter=s resolution can
reasonably be delayed until the inmate=s release; whether
the inmate can and will offer admissible, noncumulative testimony that cannot
be effectively presented by deposition, telephone, or some other means; whether
the inmate=s presence is important in judging his
demeanor and credibility; whether the trial is to the court or a jury; and the
inmate=s probability of
success on the merits.  Id. at 165B66.  The key factor is whether the inmate is
represented by counsel.  Armstrong v.
Randle, 881 S.W.2d 53, 57 (Tex. App.CTexarkana 1994,
writ denied).




Here, Hoback was represented by counsel,
and he has not shown he was denied an opportunity to communicate with
counsel.  Hoback also has not shown the
substance of any testimony he would have given, or how such testimony would
have affected the trial court=s decision.[5]  See Armstrong, 881 S.W.2d at 58; see
also Melancon v. State, 66 S.W.3d 375, 379 (Tex. App.CHouston [14th
Dist.] 2004, pet. ref=d) (stating that without a record
reflecting what facts, if any, witness could have actually provided, prejudice
from counsel=s failure to subpoena the witness was not
shown by trial counsel=s global and unsubstantiated
characterizations that the witness, to an extent, corroborated other testimony,
or that the witness= testimony would have helped the defense).
There is no explanation in the record for
counsel=s actions in not
requesting a bench warrant, which could have been tactical.  Thus, there has been no showing defeating the
presumption counsel provided effective assistance.  Additionally, Hoback has not shown counsel=s failure to
request a bench warrant prejudiced his defense. 
We conclude counsel=s failure to
request a bench warrant did not constitute ineffective assistance.
We overrule point of error three.
CONCLUSION
We have carefully studied Hoback=s brief and the
record and it has not been demonstrated to us that, but for the alleged errors
of trial counsel, the result of the proceeding would have been different.  CPS provided a solid case for the termination
of Hoback=s parental rights.  
Hoback has not shown that his trial
counsel=s representation
was deficient; that is, it fell below an objective standard of reasonableness
based on prevailing professional norms.  Strickland,
466 U.S. at 694.  Hoback also has not
shown that counsel=s alleged deficient performance prejudiced
his defense.  Id.
The judgment of
the trial court is affirmed.                                             
 
 
 
 
/s/      John S. Anderson
Justice
 
Judgment rendered and Majority and
Concurring Opinions filed July 14, 2005.
 
Panel consists of Justices Yates,
Anderson, and Hudson. (Yates, J., concurs and files a concurring opinion in
which Hudson, J. joins).




[1]  In a
supplemental brief filed after submission and oral argument, Hoback further
argues counsel was ineffective in failing to move for a continuance on the
grounds of lack of forty-five days notice for trial.  Hoback contends he did not receive forty-five
days notice of the March 15, 2004 trial setting pursuant to Texas Rule of Civil
Procedure 245.  See Tex. R. Civ. P. 245 (providing the
trial court Amay set contested cases on written request of any
party, or on the court=s own motion, with reasonable notice of not less than
forty‑five days to the parties of a first setting for trial, or by
agreement of the parties;  provided,
however, that when a case previously has been set for trial, the Court may
reset said contested case to a later date on any reasonable notice to the
parties or by agreement of the parties.@).  The record shows that on September 30, 2003,
the trial court signed an Ainitial permanency hearing@ order notifying the parties the case was set for
trial on March 16, 2004.  The trial court
later signed a Asubsequent permanency hearing order@ on January 20, 2004, again notifying the parties the
case was set for trial on March 16, 2004. 
However, the trial actually took place a day earlier, on March 15,
2004.  It is unclear from the record when
the date for trial was changed from March 16 to March 15.  A motion for withdrawal of counsel filed by
Hoback=s attorney on March 5, 2004 references a March 15
trial setting.  In addition, at the
conclusion of a March 9, 2004 pretrial hearing, the trial court announced the
bench trial would proceed March 15, 2004. 
The record does not show any party objected to the March 15, 2004 trial
setting.   
 
Where the record is silent regarding
counsel=s strategy or tactics, we will not speculate as to the
basis for counsel=s decision.  See
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  Without evidence of the strategy and methods involved
concerning counsel=s actions at trial, the court will presume sound trial
strategy.  Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). 
Hoback has not made the required showing of either deficient performance
or sufficient prejudice with regard to this ineffectiveness claim.  See id.


[2]  Second
appointed trial counsel untimely filed a jury trial request on Kite=s behalf,
not his.  The trial court denied Kite=s request for a jury trial due to the untimeliness of
the request, as it was made less than thirty days before trial.  


[3]  The record
shows that on March 5, counsel filed a motion to withdraw as counsel for
Hoback; thus, her statement at the March 9, 2003 hearing that she was unaware
she represented Hoback conflicts with the fact she filed a motion to withdraw
from representation of Hoback four days earlier.  


[4]  On February
10, 2004, the trial court permitted Hoback and Kite=s first appointed trial counsel, M. Lesa Trombley, to
withdraw as counsel of record, and Mirenda Moorhead was appointed counsel of
record for Hoback and Kite.


[5]  Hoback argues
in a supplemental brief filed after both submission of the case and oral
argument that counsel was ineffective in not having him testify at the hearing
on his motion for new trial.  Hoback=s counsel argued at the motion for new trial hearing
that appellant Ais available for a hearing,@ but she did not state he was present in the courtroom
and there is no record of what Hoback would have said.  No evidence was introduced during the
hearing.  We may only speculate why counsel
did not call him to testify at the hearing, whether he was present or not; her
reasons may have been strategic.  When
the record is silent as to possible trial strategies undertaken by defense
counsel, we will not speculate on the reasons for those strategies.  See Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994).  Here, the
record is not sufficiently developed to overcome the strong presumption that
counsel provided reasonable assistance. 


