
NO. 07-06-0037-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 1, 2006
______________________________

In re S.N.G. AND D.D.S.
_________________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-524,599; HON. KEVIN HART, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
	Maria E. Vargas appeals from an order terminating the parental relationship between
herself and her children S.N.G. and D.D.S.  The trial court appointed Vargas counsel to
represent her on appeal.  Thereafter, her appointed counsel filed an Anders (1) brief and
motion to withdraw. (2)  In the brief, appellate counsel certified that she 1) diligently reviewed
the appellate record and 2) concluded the appeal was meritless.  So too did counsel state
that she informed her client, Vargas, of her conclusion and of Vargas' right to review the
record and file a pro se response to the brief and motion.  This court also contacted
Vargas, in writing, to inform her of counsel's motion and brief and of Vargas' right to
respond thereto after reviewing the record.  Vargas failed to file a response.  For the
reasons which follow, we affirm the judgment.
 Application of Anders
	As previously mentioned, counsel was appointed to represent Vargas on appeal and
ultimately filed an Anders brief and motion to withdraw.  In doing so, she advised the court
and her client not only that she diligently reviewed the record and applicable authorities but
also concluded that there existed no reversible error.  So too did she explain why the issues
her research disclosed as potentially viable were not.  Moreover, Vargas was afforded
opportunity to respond to the brief and motion but failed to do so. 
	Next, as we are obligated to do when the proceeding is criminal, we conducted our
own independent review of the record to discover arguable grounds of appeal.  Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).  Upon conducting that review, we
determined that Vargas 1) had notice of the grounds proffered for terminating her parental
rights except for one which included her failure to comply with a court order, 2) failed to
appear at the hearing and 3) had opportunity to defend against those grounds through the
use of counsel, the presentation of evidence, and the cross-examination of adverse
witnesses.  Furthermore, the evidence presented at the trial legally and factually supported
the court's findings that Vargas 1) knowingly placed or knowingly allowed the children to
remain in conditions or surroundings which endangered the physical or emotional well-being of the children and 2) engaged in conduct or knowingly placed the children with
persons who engaged in conduct which endangered the physical or emotional well-being
of the children.  However, we do not find in the record a petition alleging the failure to
comply with a court order as a ground for termination.  Because Vargas did not receive
notice of the latter allegation, the trial court cannot rely on it as a basis for termination.  See
In the Interest of S.R.M., 601 S.W.2d 766, 769 (Tex. Civ. App.-Amarillo 1980, no writ)
(stating that the statutory grounds for termination must be stated in the petition).  Therefore,
we will reform the judgment accordingly.
	The record also contains evidence upon which the court could clearly and
convincingly find that termination of Vargas' parental rights was in the best interest of the
children.  Finally, with regard to the arguable grounds raised and then negated by appellate
counsel, we agree that they were meritless.   
	Having found no arguable merit to the appeal, we reform the judgment by removing
paragraph 6.2.3 (involving appellant's alleged failure to comply with a court order) as a
ground warranting termination and affirm the order as modified.  So too do we grant
counsel's motion to withdraw.             
 
							Brian Quinn
						          Chief Justice
 
 


1. Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967).  
2. The trial court appointed appellate counsel to represent Vargas via the directives contained in the
Texas Family Code.  Tex. Fam. Code Ann. §107.013 (Vernon Supp. 2005) (stating that an indigent parent is
entitled to appointed counsel in proceedings to terminate the parental relationship).


y: 'Arial', sans-serif">          Appellant, Robert V. Woodard, was convicted by a jury of five counts of sexual
assault of a child under seventeen years of age, enhanced by a prior felony conviction. 
Punishment was assessed by the jury.  Ordering certain sentences to run consecutively
and certain sentences to run concurrently, the trial court sentenced Appellant to 130 years
confinement.  By two issues, Appellant contends that: (1) stacking of his sentences caused
his punishment to be excessive and disproportionate; and (2) the indictment improperly
contained separate counts when the State Constitution requires an indictment for each
count.  Originally appealed to the 2nd Court of Appeals, this case was transferred to this
Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex.
Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between
precedent of the 2nd Court of Appeals and that of this Court on any relevant issue.   See
Tex. R. App. P. 41.3.  We affirm.
Background
          In March 2007, a Tarrant County Grand Jury charged Appellant by a single
indictment of seven counts of sexual assault of a child under seventeen years of age with
a repeat offender notice for a prior robbery conviction.     
          Following a four day jury trial, the trial court charged the jury to determine guilt or
innocence on five of the seven counts.  The jury returned a verdict of guilty on all five
counts.  Prior to the commencement of the punishment trial, Appellant pled true to the
offense described in the indictment’s repeat offender notice.  
          Following the punishment trial, the jury issued its verdict requiring that Appellant be
confined fifty years for Count One, fifty years for Count Two, fifty years for Count Three,
thirty years for Count Four, and thirty years for Count Five.  Thereafter, the trial court
ordered the fifty year sentence in Count Two be served consecutively to the fifty years
sentence in Count One; the fifty year sentence in Count Three to run concurrently with the
sentence in Count One; the thirty year sentence in Count Four be served consecutively to
the sentences in Counts One and Two; and the thirty year sentence in Count Five to run
concurrent to the thirty year sentence in Count Four.  This appeal followed.
Discussion
          Appellant first asserts that his sentence is excessive and disproportionate to his
crimes because the trial court failed to give appropriate weight to his mitigation evidence
offered during the punishment trial.  Appellant next asserts the indictment was improper
because it contained seven separate counts charging him with sexual assault of a child
under seventeen years of age.
          Disproportionality
          To preserve an issue for appellate review, the record must show that the complaint
was made by a timely objection “with sufficient specificity to make the trial court aware of
the complaint” and that the defendant obtained a ruling from the trial court on that
objection.  Tex. R. App. P. 33.1(a).  An appellant may not assert error pertaining to his
sentence or punishment when he or she failed to object or otherwise raise the error in the
trial court.  Thompson v. State, 243 S.W.3d 774, 775 (Tex.App.–Fort Worth 2007, pet.
ref’d) (citing Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh’g)). 
Further, the error preservation requirement extends to complaints of cruel and unusual
punishment.  See Jacoby v. State, 227 S.W.3d 128, 130 (Tex.App.–Houston [1st Dist.]
2006, pet. ref’d); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.–Houston [14th Dist.]
2001, pet. ref’d).   
          Appellant asserts that he preserved this issue for appeal by making a general
objection to “stacking.”
  His objection lacked the specificity sufficient to put the trial court
on notice of any constitutional or statutory grounds for an objection.  As such, any error in
this regard has been forfeited.  See Rhoades v. State, 934 S.W.2d 113, 120
(Tex.Crim.App. 1996); Stevens v. State, 667 S.W.2d 534, 538 (Tex.Crim.App. 1984).   
          However, even absent waiver, after comparing the temporal numerosity and
seriousness of the felony offenses for which he was convicted in light of his prior conviction
with the sentences assessed thereon, we conclude that Appellant’s sentences were not
unconstitutionally disproportionate and, thus, did not constitute cruel and unusual
punishment.  See, e.g., Winchester v. State, 246 S.W.3d 386, 390-91 (Tex.App.–Amarillo
2008, no pet.).  Appellant’s first issue is overruled.
 

          Indictment
          Appellant next contends that article 21.24 of the Texas Code of Criminal Procedure
and section 3.03(b)(2) of the Texas Penal Code
 are unconstitutional as applied to him. 
We disagree.
          When an attack is made on the constitutionality of a statute, we start with the
presumption that the statute is valid; Ex parte Granviel, 561 S.W.2d 503, 511
(Tex.Crim.App. 1978); Shannon v. State, 800 S.W.2d 896, 899 (Tex.App.–San Antonio
1990, pet. ref’d), and Appellant bears the burden of establishing the statute is
unconstitutional as applied to him.  Luquis v. State, 72 S.W.3d 355, 365 (Tex.Crim.App.
2002).  
          Appellant does not cite any case law, other authority, or record evidence in support
of his contention that the indictment underlying this action is unconstitutional.  Thus, this
contention was insufficiently briefed and, therefore, waived.  Tex. R. App. P. 38.1(h).  See
Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000).  Further, indictments
containing more than one count do not offend fundamental constitutional protections but,
instead, are constitutional.  Thomas v. State, 621 S.W.2d 158, 162 (Tex.Crim.App. 1980)
(citing Ingraham v. United States, 155 U.S. 434, 15 S.Ct. 148, 39 L.Ed. 263 (1884). 
          Appellant also asserts that the alleged unconstitutionality of article 21.24 is
compounded by the trial court’s decision to stack his sentences under section 3.03 of the
Penal Code.  Appellant again fails to provide us with any case law, other authority, or
record evidence on which to base a decision to invalidate section 3.03(b)(2) as applied. 
This contention was also waived.  See Cardenas, 30 S.W.3d at 393.  
          Appellant’s second issue is overruled.

Conclusion
          The trial court’s judgment is affirmed.


                                                                           Patrick A. Pirtle 
                                                                                  Justice  

Do not publish.

               
 
