


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-07-00306-CV
 
In the
Interest of S.T. and B.T., Children
                                                                                    
 
 
 

From the 272nd District Court
Brazos County, Texas
Trial Court No. 06-002071-CV-272
 

ORDER

 




            In this Order, we address procedural
issues relating to Donald Taylor’s appeal of the trial court’s finding under
section 263.405(d)(3) of the Family Code that his appeal is frivolous.  See
Tex. Fam. Code Ann. § 263.405(d)(3)
(Vernon Supp. 2007).  To ensure that Taylor’s right to due process is not
violated, we will order the court reporter to file a record of all evidence
admitted at trial, and we will set a briefing schedule for the parties.
            In a prior order, this Court held
that: (1) the trial court abused its discretion by finding that Taylor failed
to prove his indigence; (2) the appeal must be abated for appointment of
counsel; and (3) Taylor or another party must provide a reasonable explanation for
the late filing of Taylor's request for preparation of the clerk’s record or
this appeal would be dismissed.  In re S.T., No. 10-07-00306-CV, 2007 Tex. App. LEXIS 9252, at *15-16 (Tex. App.—Waco Nov. 28, 2007, order) (per curiam).  The
trial court has appointed appellate counsel for Taylor.  Taylor’s trial counsel
filed a response to the Court’s order explaining the late request for
preparation of the clerk’s record.  Taylor’s newly appointed counsel has filed
a “brief” in which counsel requests that this Court order “preparation of a
full appellate record” and permit briefing on the merits.
            Trial counsel explains that she
believed her representation of Taylor ended at the conclusion of the indigence
hearing, particularly in light of Taylor’s allegation that she provided
ineffective assistance at trial.  In addition, counsel explains that she did
not understand the jurisdictional and procedural implications which attach to
the timely filing of a clerk’s record in an indigence/frivolousness appeal
under section 263.405(g).
            Appellate counsel also observes that
the trial court informed the parties at the conclusion of the hearing on Taylor’s indigence claim and on his statement of points that the court reporter would
prepare and file a record of that hearing for review in this Court.  Thus,
counsel contends that Taylor could have reasonably inferred from the trial court’s
statement that preparation and filing of the appellate record would occur
without further action on his part.
            These explanations constitute a “plausible
statement of circumstances indicating that failure to file within the
[specified] period was not deliberate or intentional, but was the result of inadvertence,
mistake or mischance.”  Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)); In re D.M., No. 10-06-00407-CV, 2007 Tex. App. LEXIS 9764, at *2-4
(Tex. App.—Waco Dec. 12, 2007, no pet. h.) (op. on reh’g); Doe v. Brazoria
County Child Protective Servs., 226 S.W.3d 563, 571  (Tex. App.—Houston [1st Dist.] 2007, no pet.).  Therefore, because reasonable explanations have been
provided for the late filing of Taylor's request for preparation of the clerk’s
record, we grant the implied motion for extension and hold that Taylor’s appeal
was timely perfected.
            The Fort Worth Court of Appeals has concluded
that, when one of the points for appeal is factual insufficiency, a court
reporter must file a transcription of “all of the evidence admitted” at trial
at no cost to the appellant.  See In re M.R.J.M., 193 S.W.3d 670, 674
(Tex. App.—Fort Worth 2006, order); see also In re K.D., 202 S.W.3d 860,
866 (Tex. App.—Fort Worth 2006, no pet.).   By contrast, the Beaumont Court of
Appeals has concluded that an appellate court can, consistent with due process,
decide whether a factual sufficiency issue is frivolous without a trial record.
 See In re A.S., No. 09-07-236-CV, 2007 Tex. App. LEXIS 8135, at *3-6 (Tex. App.—Beaumont Oct. 11, 2007, no pet.).
            Taylor’s counsel cites the dissenting
opinion authored by the Chief Justice in response to this Court’s November 28
Order to support his contention that we should follow the Fort Worth Court and
require the filing of reporter’s record of “all of the evidence admitted” at
trial at no cost to himself.
[T]he only way we can review the trial court’s
decision is to have before us the same information the trial court did,
including the information of which the trial court took judicial notice.  The
only way for us to do that is to have the reporter’s record of the trial
proceedings of which the trial
court took judicial notice.
 
In re S.T., 2007 Tex. App. LEXIS 9525, at *18-19 (Tex. App.—Waco Dec. 3, 2007)
(Gray, C.J., dissenting).
            Based on the decision of the Supreme
Court of the United States in Draper v. Washington, 372 U.S. 487, 83 S.
Ct. 774, 9 L. Ed. 2d 899 (1963), we agree with the Fort Worth Court’s approach. 
In Draper, the Supreme Court considered procedural rules remarkably
similar to section 263.405, which required an indigent criminal defendant to
establish to the satisfaction of the trial court that he was indigent and that
his appeal presented errors which were not frivolous as preconditions to the
provision of a statement of facts at county expense.  Id. at 489-90, 83 S. Ct. at 775-76.  Applying an equal-protection analysis, the Court concluded that these
rules were unconstitutional.
[T]his Court [has] held that “(t)he conclusion of
the trial judge that there was no reversible error in the trial cannot be an
adequate substitute for the right to full appellate review available to all
defendants in Washington who can afford the expense of a transcript.”  We hold
today that the conclusion of the trial judge that an indigent’s appeal is
frivolous is a similarly inadequate substitute for the full appellate review
available to nonindigents in Washington, when the effect of that finding is to
prevent an appellate examination based upon a sufficiently complete record of
the trial proceedings themselves.
 
Id. at
499-500, 83 S. Ct. at 781 (quoting Eskridge v. Wash. State Bd. of Prison
Terms & Paroles, 357 U.S. 214, 216, 78 S. Ct. 1061, 1062, 2 L. Ed. 2d 1269
(1958) (per curiam)).
            Although Draper is grounded in
equal protection, the same principles apply to section 263.405.  Section
263.405 does not expressly treat indigent and non-indigent appellants
differently, but the net result is the same.  For example, if the trial court
finds that the grounds for appeal presented by a non-indigent appellant are
frivolous, then the non-indigent appellant may pay for a complete trial record
to be filed with the appellate court for a thorough review of the frivolousness
determination.  Section 263.405 does not prohibit such a review.  Rather, the
statute (like the rules in Draper) limits the scope of the appellate
record available to an indigent appellant without cost if the grounds for
appeal are found frivolous by the trial court.
            Taylor’s grounds for appeal include:
(A) five legal and factual insufficiency claims; (B) an ineffective assistance
of counsel complaint; and (C) two claims that the court abused its discretion
in particular rulings.  Therefore, we hold as a matter of due process that, because
Taylor has raised legal and factual insufficiency claims, the court reporter
shall file a transcription of “all of the evidence admitted” at trial at no
cost to the appellant.[1]  See
M.R.J.M., 193 S.W.3d at 674; see also K.D., 202 S.W.3d at 866.  The
reporter’s record shall be filed within twenty-one (21) days after the date of
this Order.
            Taylor also contends that this Court
should order the parties to file briefs on the merits of his claims.  While
there is some merit to this contention from the standpoint of judicial economy,
section 263.405(g) clearly limits this Court’s review at this juncture to the
issue of whether Taylor’s appeal is frivolous.  Tex. Fam. Code Ann. § 263.405(g) (Vernon Supp. 2007); S.T.,
2007 WL 4200752, at *1; In re R.A.P., No. 14-06-00109-CV, 2007 WL
174376, at *2 (Tex. App.—Houston [14th Dist.] Jan. 25, 2007, no pet.) (mem.
op.); K.D., 202 S.W.3d at 865.  Therefore, we limit our briefing request
to this issue.
            As part of this briefing, the parties
should address applicable standards of review and the appropriate disposition
for the appeal in the event this Court either upholds the trial court’s
frivolousness determination or reverses that determination.  Taylor’s brief
shall be filed within twenty (20) days after the reporter’s record is filed. 
The Department’s brief shall be filed within fifteen (15) days after Taylor’s brief is filed.
            Because this appeal is accelerated,
the Court hereby advises the court reporter and the parties that the deadlines
set forth in this Order shall take precedence over any other deadlines which
they may currently have in cases pending in this Court.  Any extension of the
deadlines set forth in this Order will be considered for only the most
extenuating of circumstances. 
PER CURIAM
 
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
(Chief Justice Gray dissents to the order as
follows: “The rulings that a majority of this court are willing to make without
the benefit of briefing, or even having the issue raised by the parties, never
ceases to amaze me.  They are writing rules by a published order, deciding an
equal protection argument not raised by anyone, and completely ignoring the
State and any arguments it might make to protect the child.  I dissent.”
Order issued and filed
January 9, 2008
Publish




[1]
              This record should provide for
full appellate review of Taylor’s legal and factual insufficiency claims.  If Taylor believes additional portions of the record are necessary for review of the other
grounds raised, then he must file a motion with this Court within ten days
after the date of this Order demonstrating the need for such additional
portions.
 



al style='text-align:justify;text-indent:.5in;line-height:200%'>To prove drug possession, the State must show 1) a
defendant exercised care, custody, control, or management over the contraband,
and 2) that he knew he possessed a controlled substance.  Rischer v. State,
85 S.W.3d 839, 843 (Tex. App.—Waco 2002, no pet.).  A defendant's knowing
possession of contraband may not be proved merely by his presence at the scene
when the drugs were found, unless the defendant had been in exclusive
possession of that location.  See Hudson v. State, 128 S.W.3d 367, 374 (Tex. App.—Texarkana 2004, no pet.).  The control over the contraband need not be exclusive,
but can be jointly exercised by more than one person.  Cude v. State,
716 S.W.2d 46, 47 (Tex. Crim. App. 1986).
When the accused is not in exclusive control of
the place where the contraband is found, the State must show additional
affirmative links between the accused and the contraband to show his or her
knowledge of or control over the contraband.  Id.  Factors which have
been considered affirmative links include: 1) presence when the search was
executed; 2) contraband in plain view; 3) proximity to and accessibility of the
contraband; 4) the accused being under the influence of contraband when
arrested; 5) the accused's possession of other contraband when arrested; 6) the
accused's incriminating statements when arrested; 7) attempted flight; 8)
furtive gestures; 9) odor of the contraband; 10) presence of other contraband;
11) the accused's right to possession of the place where contraband was found;
and 12) drugs found in an enclosed place.  Id.  The number of
factors present is not as important as the "logical force" or the
degree to which the factors, alone or in combination, tend affirmatively to
link the accused to the contraband.  See Bellard v. State, 101 S.W.3d
594, 599 (Tex. App.—Waco 2003, pet. ref’d).  Furthermore, the defendant must be
affirmatively linked to the contraband itself rather than the area where it was
found.  Mendoza v. State, 583 S.W.2d 396, 399 (Tex. Crim. App.
1979).
Johnson argues that he did not smell of marihuana
or appear under the influence when he was arrested.  The State argues that
Johnson was a passenger in the vehicle when it was searched.  The marihuana was
in plain view in the center dash ashtray of the vehicle, in close proximity to
Johnson.  Additionally, incident to his arrest for the marihuana possession,
Johnson was found to have a bag of crack cocaine and a wire wisk.
In viewing the evidence in the light most
favorable to the verdict, we cannot say that the factfinder was not rationally
justified in finding that Johnson possessed the marihuana.  See Curry,
30 S.W.3d at 406.  Accordingly, we find that the evidence is legally sufficient
to support a finding that Johnson knowingly possessed marihuana as alleged.  We
overrule Johnson’s issues two and four.
Confidential Informant 
In his last three issues, Johnson contends that
the trial court erred when it refused to disclose the informant’s identity in
open court and hold an in-camera hearing to evaluate the informant’s
reliability.  Johnson asserts that disclosure of the informant’s identity is
necessary because there was a reasonable probability that the confidential
informant would be a material witness to his guilt or innocence.
We review a trial court's denial of a motion to
disclose a confidential informant under an abuse of discretion standard.  Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. [Panel Op.] 1980). 
Under that standard, a trial court's decision is disturbed on appeal only when
it falls outside the zone of reasonable disagreement.  Jones v. State,
944 S.W.2d 642, 651 (Tex. Crim. App. 1996).  Generally, the State has a
privilege to refuse to disclose the identity of a confidential informant who
has furnished information to a law enforcement officer conducting an
investigation.  See Tex. R. Evid.
508(a).  There are three exceptions that may require the
State to disclose the identity of the informant.  See Tex. R. Evid. 508(c)(1)-(3).  Johnson relies
on the second exception, which provides in pertinent part:
Testimony on Merits. If it appears from the
evidence in the case or from other showing by a party that an informer may be
able to give testimony necessary to a fair determination of … guilt or
innocence in a criminal case, and the public entity invokes the privilege, the
court shall give the public entity an opportunity to show in camera facts
relevant to determining whether the informant can, in fact, supply that
testimony.
 
Tex. R. Evid.
508(c)(2).
 
The defendant bears the initial burden of showing
that the confidential informant may be able to give testimony necessary to a
fair determination of the defendant's guilt or innocence.  Id.  This
initial burden has been described as a "plausible showing."  Bodin
v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991).  "Evidence from
any source, but not mere conjecture or speculation must be presented to make the
required showing that the informant's identity must be disclosed."  Id.  If the defendant meets the burden of making the preliminary showing, then the
trial court is required to hold an in-camera hearing.  See Bailey v. State,
804 S.W.2d 226, 230 (Tex. App.—Amarillo 1991, no pet.).  The in-camera hearing
provides the State the opportunity to show facts that rebut the defendant's
preliminary showing.  Id.
Whenever an informant is an eyewitness to an
alleged offense, then that informant can give testimony necessary to a fair
determination of the issue of guilt or innocence.  Anderson v. State,
817 S.W.2d 69, 72 (Tex. Crim. App. 1991).  However, when the informant's
information is used only to establish probable cause and the informant was not
a participant in the offense for which the defendant is charged, the identity
of the informant need not be disclosed because his testimony is not essential
to a fair determination of guilt.  See Washington v. State, 902 S.W.2d
649, 656-57 (Tex. App.—Houston [14th Dist.] 1995, pet. ref'd).
Johnson reasons that the initial detention of
McGee’s vehicle was based on the tip of the informant, and he argues that
several cases have held that a defendant can satisfy the initial burden by
showing that the confidential informant was an eyewitness to the search or
participated in the transaction for which the defendant was indicted.  See
Anderson, 817 S.W.2d at 72; Bodin, 807 S.W.2d at 318; Sanchez
v. State, 98 S.W.3d 349, 356 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d).
Here, the informant could offer no testimony about
the actual offense.  There is no evidence that the confidential informant
participated in the offense for which Johnson was charged, nor is there
evidence the informant was an eyewitness to the search.  The informant’s
testimony would only be relevant to the issue of probable cause, thus making it
unnecessary for the identity of the informant to be disclosed.  Washington, 902 S.W.2d at 657.  Consequently, the trial court did not abuse its
discretion in refusing to hold an in-camera hearing or to disclose the identity
of the informant.  Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston
[14th Dist.] 1995, pet. ref’d).  We overrule Johnson’s sixth and eighth issues.[1]
Conclusion
Having overruled all of Johnson’s issues, we affirm
the trial court's judgments.
 
 
BILL VANCE
Justice
 
 
 
Before Chief Justice
Gray,
            Justice
Vance, and
            Justice Reyna
Affirmed 
Opinion delivered and
filed May 14, 2008
Do not publish 
[CRPM]



[1]
In Johnson’s seventh issue, he argues that
the trial court erred when it denied him the right to confront and
cross-examine the informant by refusing to disclose his identity, as the
credibility of the informant was the basis for the initial detention, in
violation of his rights to due process of law and equal protection.  Our
resolution of issues six and eight are dispostive of this issue.


