Opinion
No. 06-04-00102-CV
Submitted: March 23, 2005.
Decided: April 27, 2005.
On Appeal from the 8th Judicial District Court, Hopkins County, Texas, Trial Court No. 34081.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Willie Lindley, Jr., appeals from the termination of his parental rights to S.F.L. and J.F.L. Lindley contends the evidence is insufficient to support the termination because the State did not prove that he had been finally convicted of a crime or that he was the individual so convicted.
When reviewing a factual sufficiency challenge to a parental rights termination, we consider the evidence the fact-finder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). "Clear and convincing evidence" means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id.; In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re N.H., 122 S.W.3d 391, 395 (Tex.App.-Texarkana 2003, pet. denied). In so doing, we consider whether disputed evidence is such that a reasonable fact-finder could not have resolved that dispute in favor of its finding. J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 26; N.H., 122 S.W.3d at 396. If, in light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 26; N.H., 122 S.W.3d at 396.
The trial court terminated Lindley's parental rights based on his conviction for indecency with a child. The controlling statute requires the State to allege and prove at least one of the acts or omissions set out in TEX. FAM. CODE ANN. § 161.001(1) (Vernon 2002). Subsection 161.001(1)(L)(iv) provides that a court may terminate parental rights if the court finds, by clear and convincing evidence, that the parent has
(L) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections:
. . . .
(iv) Section 21.11 (indecency with a child);. . . .
Tex. Fam. Code Ann. § 161.001(1)(L)(iv).
The Fort Worth court recently reviewed this provision in In re L.S.R., 60 S.W.3d 376 (Tex.App.-Fort Worth 2001), pet. denied, 92 S.W.3d 529 (Tex. 2002). J.R. and L.R. appealed a judgment terminating their parental rights to their daughter, L.S.R. Section 161.001(1)(L)(iv) of the Texas Family Code provides for termination if a parent has been convicted or placed on community supervision, including deferred adjudication community supervision, "for being criminally responsible for the death or serious injury of a child" under various Texas Penal Code sections, including a conviction for indecency with a child under Section 21.11 of the Texas Penal Code. Tex. Fam. Code Ann. § 161.001(1)(L)(iv). The State presented evidence at trial showing that J.R. had received deferred adjudication for the offense of indecency with a child, an offense J.R. committed when he was sixteen against his four-year-old cousin. The court of appeals held that there was no evidence to support termination under Section 161.001(1)(L)(iv) because there had been "no showing that J.R.'s cousin suffered death or serious injury as a result of his conduct." L.S.R., 60 S.W.3d at 378. The court of appeals deleted this ground for termination from the judgment, but otherwise affirmed the judgment against J.R. Id. at 381.
In denying the petitions for review, the Texas Supreme Court stated: "We deny the petitions for review, but disavow any suggestion that molestation of a four-year-old, or indecency with a child, generally, does not cause serious injury." In re L.S.R., 92 S.W.3d 529, 530 (Tex. 2002).
Lindley contends that the evidence is insufficient because the Texas Department of Family and Protective Services did not prove he was finally convicted of the offense, or alternatively, that it did not prove he was the individual referenced in the judgments. We first address the adequacy of the proof of conviction. The statute does not contain language requiring proof of a final conviction, as would be required in an enhancement context. It requires only proof of a conviction. In this case, however, we have both situations. The record contains the judgment finding Lindley guilty (on his plea of guilty) of indecency with a child and sentencing him to five years' imprisonment, the negotiated plea agreement, the September 5, 2002, opinion by the Eastland Court of Appeals that dismissed his appeal as untimely, and the mandate from that court. Thus, the conviction is final. The only remaining possibility would be through a collateral attack on the judgment.
An appealed prior conviction alleged for enhancement purposes becomes final when the appellate court issues its mandate affirming the conviction. Beal v. State, 91 S.W.3d 794, 796 (Tex.Crim.App. 2002); see TEX. PEN. CODE ANN. § 12.42(a)(2) (Vernon Supp. 2004-2005).
In that vein, the record also contains an April 2, 2003, order by the Texas Court of Criminal Appeals returning Lindley's 11.07 application for writ of habeas corpus to the trial court for a hearing and findings on his claim of ineffective assistance of counsel as allegedly shown by his untimely appeal. Such an application under Article 11.07 may be brought "[a]fter final conviction in any felony case." Tex. Code Crim. Proc. Ann. art. 11.07, § 3(a) (Vernon 2005). Accordingly, the record contains clear and convincing evidence of Lindley's conviction.
The remaining argument is that the agency failed to adequately prove Lindley was the same person who pled guilty to the charge, in the absence of fingerprint identification, photographs, or by some other means. As set out above, the statute requires the court to find by clear and convincing evidence that the parent has been convicted. The State argues that Lindley's claim was subject to waiver and that, because he did not raise the issue at trial, he cannot now raise the complaint under Tex.R.App.P. 33.1. We disagree. This is a matter of proof, not procedure, and it remains the agency's burden to provide evidence to prove its case.
In the context of enhancements, a pen packet combined with fingerprint analysis linking the packet to the defendant is sufficient proof of prior convictions. Beck v. State, 719 S.W.2d 205, 209-10 (Tex.Crim.App. 1986); Varnes v. State, 63 S.W.3d 824, 834 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Zimmer v. State, 989 S.W.2d 48, 51 (Tex.App.-San Antonio 1998, pet. ref'd). Similarly, the identification of the photographs contained in those pen packets is sufficient evidence to prove appellant's identity as the person convicted in those cases. See Littles v. State, 726 S.W.2d 26, 31 (Tex.Crim.App. 1984) (op. on reh'g); Green v. State, 140 S.W.3d 776, 777 (Tex.App.-Eastland 2004, no pet.).
In this case, Lindley did not testify. The record shows that he was sent papers in prison informing him of the termination proceeding and that he chose to contest that proceeding. The conviction was on a charge of indecency against the child of Willie Lindley, Jr., who is one of the two children involved in this proceeding to terminate Lindley's parental rights. Further, handwritten correspondence from Lindley to the trial judge acknowledges this particular defendant's relationship to those children. Lindley was thus identified as the father, both by record and by his own writings, and was located in prison as a result of this particular conviction.
Under this combination of facts, we conclude the trial court had before it clear and convincing evidence that Lindley was in fact the same person who pled guilty and was convicted of indecency with one of these children. The contention of error is without merit.
We affirm the judgment.