Antonio Rodrick Lewis v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00156-CR ______________________________ ANTONIO RODRICK LEWIS, Appellant  V.  THE STATE OF TEXAS, Appellee                                               On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 31597-B                                                  Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION           Antonio Rodrick Lewis pled guilty to the offense of sexual assault, see Tex. Pen. Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2005), and submitted the issue of punishment to the trial court. His crime, as charged, was a second degree felony. See Tex. Pen. Code Ann. § 22.01(f) (Vernon Supp. 2005); § 12.33 (Vernon 2003) (second degree punishment range). The trial court assessed Lewis' punishment at fifteen years' imprisonment.           On appeal, Lewis contends his sentence is excessive and disproportionate. Before we can address this issue on the merits, it must be preserved for our review. In Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.—Texarkana 1999, no pet.), we held that a defendant is required to raise in the trial court any objection he or she might have on the ground of disproportionality. In this case, Lewis did not present this issue to the trial court by any means, objection or otherwise. Nor did he file a motion for new trial, a procedure Lewis could have used to present this issue for the trial court's consideration. Accordingly, Lewis did not preserve the issue for appellate review. See Tex. R. App. P. 33.1(a); Alberto v. State, 100 S.W.3d 528, 529–30 (Tex. App.—Texarkana 2003, no pet.); and cf. Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.—Texarkana 2002, no pet.); Jackson, 989 S.W.2d at 844.            We overrule Lewis' sole point of error and affirm the trial court's judgment.                                                                            Donald R. Ross                                                                            Justice Date Submitted:      November 14, 2005 Date Decided:         November 16, 2005 Do Not Publish y present at "any and all proceedings" (emphasis added) involving J.D.S. We interpret this as a valid request to be present at his termination hearing. The parent-child relationship is recognized and protected by law to such a degree that it is of federal constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (holding that the parent-child relationship is "far more precious than any property rights"). The termination of parental rights is final and ends all legal ties between the parent and child, except the child's right of inheritance. Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Because termination of parental rights is such a drastic remedy and is of such weight and gravity, due process requires the petitioner to justify termination by a heightened burden of proof of "clear and convincing evidence." See Tex. Fam. Code Ann. § 161.001. Appellate courts must carefully scrutinize judgments terminating the parent-child relationship because of the importance of the relationship. In re K.R., 63 S.W.3d 796, 800 (Tex. 2001). The absence of a parent at the trial to terminate his or her parental rights is prejudicial to the parent. The parent's absence could leave the fact-finder with the impression that the proceeding is not important to the parent. Furthermore, because of the obvious negative connotations associated with a parent who is incarcerated, it is important for the fact-finder to witness the demeanor and credibility of the parent. In short, the presence, or nonpresence, of the parent in the courtroom at his or her termination hearing is vital to the fact-finder's decision to terminate a parent's rights to his or her child. Having concluded Sessums made a valid request to be present at his termination hearing, we then review the trial court's decision to deny his request for an abuse of discretion. In re I.V., 61 S.W.3d 789, 797 (Tex. App.-Corpus Christi 2001, no pet.). A prisoner has a constitutional right of access to the courts and may not be denied access merely because he is an inmate. Id. at 796; see Hudson v. Palmer, 468 U.S. 517, 523 (1984); Armstrong v. Randle, 881 S.W.2d 53, 56-57 (Tex. App.-Texarkana 1994, writ denied). But the right of access is not absolute; it is a qualified right. In re Z.L.T., 82 S.W.3d 100, 101 (Tex. App.-San Antonio 2002, no pet.); In re B.R.G., 48 S.W.3d 812, 819 (Tex. App.-El Paso 2001, no pet.). In determining whether an inmate should personally attend civil court proceedings, the trial court must balance the interest of the State in preserving the integrity of the correctional system with the inmate's interest in access to the courts, with a goal of achieving a balance that is fundamentally fair. Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.-Houston [1st Dist.] 2000, no pet.). Factors to consider in weighing these two interests include, but are not limited to: (1) the cost and inconvenience of transporting the inmate; (2) the security risk presented by the inmate; (3) the substance of the matter; (4) the need for witnessing the inmate's demeanor; (5) whether the trial is before the jury or judge; and (6) the possibility of delaying trial until the inmate is released. I.V., 61 S.W.3d at 796. Acting on a request by summarily denying the request without weighing the State's interest against an inmate's interest is also an abuse of discretion. See In re D.S., 82 S.W.3d 743, 746 (Tex. App.-Corpus Christi 2002, no pet.) (the trial court must weigh the interest of the plaintiff in presenting his or her testimony in person against the interest of the State in maintaining the confinement of the prisoner); see also I.V., 61 S.W.3d at 797. Because Sessums' right to be present during court proceedings was a qualified right, the trial court should have weighed the relevant factors and had a reason for denying a bench warrant before it decided not to allow him to participate in person at the hearing. See B.R.G., 48 S.W.3d at 819-20 ("If, after considering these factors, the trial court determines that the prisoner is not entitled to appear personally, then the trial court should permit him to proceed by affidavit, deposition, telephone, or other effective means."); see also Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.-Tyler 1989, no writ) (concluding the trial court must make pertinent inquiries regarding an appellant's request to appear); cf. Nance v. Nance, 904 S.W.2d 890, 892 (Tex. App.-Corpus Christi 1995, no writ) (the order reflects various findings demonstrating that the trial court did not arbitrarily refuse to issue the requested bench warrant). The record does not show that the trial court considered any relevant factors, but rather merely denied Sessums' request. The trial court's decision not to weigh any relevant factors was an abuse of discretion. Sessums' first point of error is sustained, and the judgment is reversed and the cause is remanded to the trial court for a new trial. See Tex. R. App. P. 44.1; Taylor v. Taylor, 63 S.W.3d 93, 98 (Tex. App.-Waco 2001, no pet.). Jack Carter Justice Date Submitted: July 11, 2003 Date Decided: July 17, 2003 1. Because the bench warrant issue is dispositive in this case, we do not reach the merits of Sessums' other points of error. However, with regard to Sessums' second point of error-his claim of ineffective assistance of counsel-we recognize that the Texas Supreme Court recently held that a parent has a constitutional right to effective assistance of counsel in parental termination cases. See In re M.S., No. 02-0509, 2003 Tex. LEXIS 108, at *26-29 (July 3, 2003). 2. All further references to "Sessums" are to Larry Sessums, Jr., unless otherwise stated.