No. 05-02-00641-CR.
Opinion Filed April 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-80991-00. Affirmed.
Before Justices MORRIS, O'NEILL, and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice MALONEY
The jury convicted Andrew Bascome Ramsey for interference with child custody and the trial court assessed a one hundred and eighty day confinement in a state jail facility, suspended that sentence, and placed him on probation for two years. In two issues, appellant challenges the factual sufficiency of the evidence to support his conviction and contends he received ineffective assistance of counsel at trial. We affirm the trial court's judgment.
BACKGROUND
In 1994, appellant and the mother (Mother) of their only child were divorced. The divorce decree appointed appellant sole managing conservator of their child and permitted Mother unsupervised visitation with their child on the first and third weekend of each month from 8:00 a.m. Saturday until 8:00 p.m. Sunday. The State indicted appellant for interference with child custody after he did not make their child available when Mother attempted to exercise her visitation rights on six weekends during August, September, and October 1999. INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, appellant claims he received ineffective assistance of counsel at trial because his trial attorney did not (1) require the State to elect which of the six occurrences it would rely upon for conviction and (2) object to the admission of two grand jury "no bills" on charges brought by appellant against Mother. 1. Applicable Law
We examine ineffective assistance of counsel claims using the standards set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Specifically, appellant must establish by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant and (3) but for the deficiency, a reasonable probability existed that the proceeding would have had a different result. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine counsel's representation in its entirety to determine whether appellant received effective assistance. Id. at 812. We presume the defense counsel's competence and, to defeat this presumption, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. In most cases, a silent record which provides no explanations for counsel's actions will not overcome the strong presumption of reasonable assistance. Id. at 813-14. 2. Application of Law to the Facts
Appellant's motion for new trial did not raise an ineffective assistance of counsel claim. Thus, the record does not explain the motives behind counsel's actions and whether they resulted from strategic design or negligent conduct. Because the record is silent on why trial counsel did not seek to compel the State to elect or object to the admission of grand jury "no bills," appellant has not met his burden of establishing his counsel's performance was deficient. We therefore resolve appellant's first issue against him. FACTUAL SUFFICIENCY
In his second issue, appellant challenges the factual sufficiency of the evidence to establish he knowingly and intentionally did not make their child available for Mother's visitation contrary to court order. Specifically, appellant contends the evidence does not show that he was ever aware Mother intended to appear and exercise her visitation rights, or that their child was at home when Mother appeared to pick him up. 1. Applicable Law
We review a factual sufficiency challenge under well-known standards. We conduct a neutral examination of the all of the evidence and reverse only if (1) the evidence is so weak as to be clearly wrong or manifestly unjust or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Our review, however, must give due deference to the factfinder as the sole judge of the evidence's weight and the witness's credibility. Id. at 7. A person commits the offense of interference with child custody if he takes or restrains a child younger than 18 years knowing his taking or retention violates the express terms of a court's judgment or order disposing of the child's custody. Tex. Pen. Code Ann. § 25.03(a)(1) (Vernon 2003). 2. Application of Law to the Facts
Mother testified that appellant left her home with their child in June 1999 and she did not know where they were living until a court hearing in Williamson County on August 2, 1999 when the court questioned appellant. On August 7, 1999 (the first weekend of August), Mother, who lived in Austin, went to the Plano home where appellant and their child resided with appellant's sister and brother-in-law. Appellant told Mother that their child was not there. After waiting a couple of hours, Mother left the home without seeing their son. On August 21, 1999, Mother again attempted to pick up their son for visitation and appellant informed her that their son wasn't there. Mother notified the police that appellant refused to permit her visitation with their son in accordance with the divorce decree and returned to Austin. On September 4, 1999, Mother returned to appellant's residence and appellant's brother-in-law told her that their son and appellant were not at home. Mother again notified the police and ultimately returned to Austin unable to see their son. On September 18, 1999, she traveled again to appellant's residence and appellant's brother-in-law told her to leave the property. The police entered the residence and told Mother that their son was not there. On the first and third weekends of October 1999, Mother returned to the same residence to visit their son but no one was at the home either time. Before each of Mother's visits, she would leave messages on appellant's cell phone or call the home telephone to advise she was coming for visitation, but appellant never returned her calls. Lori Hunter, a Plano Police Officer, testified that she took Mother's complaint on September 4, 1999. Hunter called appellant using the number Mother provided and left a message, but appellant did not return her call. Hunter indicated that in accordance with police procedure, the department would then refer the case to a police detective. Mark McClendon, a Plano Police Detective, testified that the department assigned him the case on September 21, 1999. He telephoned appellant on September 23 and questioned him about Mother's complaint that the 1994 Divorce Decree entitled her to visitation with their son on the first and third weekend of the month. Appellant told him he had not let her see their child "that day" because he just didn't trust her. Mother had reported that she could not exercise her visitation on August 21st and September 4th. Appellant testified that he and their child moved in with his sister and brother-in-law in June 1999. He told Mother he was going to live with his sister. Appellant thought that Mother was not attempting to enforce visitation but was attempting to obtain possession of the child contrary to the 1994 Divorce Decree. He was at home only one of the six times Mother appeared for visitation. Mother had not notified him when she would be exercising her visitation rights. Their son was not at home when Mother arrived because he had slept over a friend's house the night before. The number at which Hunter tried to reach him was his sister's number and not his. Reviewing the above evidence under the applicable standard, we conclude the evidence was factually sufficient to show that appellant acted with the requisite intent. At a minimum, the evidence shows that appellant made it difficult for Mother to communicate with him about visitation and that despite appellant's knowledge of her visitation rights, their child was not at the home on six consecutive visitation weekends. Moreover, appellant's testimony that he thought Mother was trying to gain possession of their child suggests that his absence from the house was not coincidental, but intentional. On the record before us, we cannot say the verdict is so weak as to be clearly wrong and unjust or against the great weight and preponderance of the evidence. We affirm the trial court's judgment.