in Re: Cathrine Marie Whatley

6-96-028-CV Long Trusts v. Dowd In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00035-CV ______________________________ IN RE: CATHERINE MARIE WHATLEY                                                                                                                                                              Original Mandamus Proceeding                                                                                                                                                                                        Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION           Catherine Marie Whatley has filed a petition for writ of mandamus in which she asks this Court to order the Honorable Robin D. Sage, presiding judge of the 307th Family District Court of Gregg County, Texas, to grant her a writ of habeas corpus seeking possession of her children, David Allen Whatley, II, and Christopher James Whatley. We requested that any response from the respondent or real party in interest be "received by this court no later than Monday, April 03, 2006." No response has been received from either the respondent or the real party in interest. We conditionally grant the writ.           Catherine Whatley was given custody of the children by an agreed final decree of divorce. Following an inspection of her house by the Texas Department of Family and Protective Services (the Department), Catherine Whatley agreed as part of a written Child Safety Evaluation Plan to allow David Whatley, the father of the children, to assume custody of the children. That agreement expired February 24, 2006. On March 9, 2006, Catherine Whatley filed an application for a writ of habeas corpus in the trial court in an attempt to secure the return of her children to her custody from the custody of David Whatley.           At the hearing on the application for writ of habeas corpus, Diedre Phillips, an investigation supervisor for the Department, testified that the condition of Catherine Whatley's home posed a danger to the children's well-being. Several pictures, which were taken January 13, 2006, during a visit by the Department to Catherine Whatley's home, were introduced into evidence. These pictures reveal that there was trash throughout the house, urine and human feces on the toilet seats, and the bathroom sink was filled with trash. Phillips also testified there was dog feces on the floor and a considerable amount of trash, including a refrigerator, on the front porch, both of which could pose a hazard to the children. Phillips testified Catherine Whatley was informed the children would be returned once the house was in a suitable condition. While no pictures of the inside of the house taken since the visit on January 13th were introduced, Phillips testified that, on March 3, 2006, when she visited Catherine Whatley's home, the home was in similar condition, although not the exact same condition. There were pictures of the exterior of the house taken March 3, 2006, introduced into evidence which showed there was still a considerable amount of trash, and the refrigerator, on the front porch. Phillips testified that Catherine Whatley agreed to allow the children to remain with their father March 3, 2006. The record does not indicate the length of time Catherine Whatley agreed to allow the children to remain with their father or any written extension of the original agreement.           Following the hearing, the trial court denied the application for writ of habeas corpus. Although the trial court orally found there was "a serious and immediate question regarding the health and safety of the children," no written finding of the existence of a serious immediate question concerning the welfare of the children was made and no temporary custody order was granted awarding custody of the children to a person other than Catherine Whatley. The trial court did issue a written order denying the application for writ of habeas corpus, but no temporary custody order was entered and no written finding was made that a serious and immediate question existed concerning the welfare of the children.           Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion, or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). The proper procedure to challenge a trial court's denial of an application for writ of habeas corpus seeking possession of a child is through a petition for writ of mandamus. Lamphere v. Chrisman, 554 S.W.2d 935, 938 (Tex. 1977); Revey v. Peek, 951 S.W.2d 920, 924 (Tex. App.—Texarkana 1997, orig. proceeding).           With respect to the resolution of factual issues or matters committed to the trial court's discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 840. The relator must establish that the trial court could reasonably have reached only one decision. Id. Our review is much less deferential with respect to a trial court's determination of the legal principles controlling its ruling, because a trial court has no discretion in determining what the law is or in applying the law to the facts. Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996); see Walker, 827 S.W.2d at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in a writ of mandamus. Huie, 922 S.W.2d at 927. The trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion. Id. at 927–28.           An application for writ of habeas corpus seeking custody pursuant to a prior court order is governed by Section 157.372(a) of the Family Code, which provides as follows: Subject to Chapter 152 and the Parental Kidnapping Prevention Act (28 U.S.C. Section 1738A), if the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator only if the court finds that the relator is entitled to possession under the order. Tex. Fam. Code Ann. § 157.372(a) (Vernon 2002). The intent of habeas corpus is to compel obedience to existing orders, not to relitigate the award of custody. Saucier v. Pena, 559 S.W.2d 654, 656 (Tex. 1977); In re P.D.M., 117 S.W.3d 453, 460 (Tex. App.—Fort Worth 2003, pet. denied). The issuance of the writ of habeas corpus is to be "automatic, immediate, and ministerial, based upon proof of the bare legal right of possession." Schoenfeld v. Onion, 647 S.W.2d 954, 955 (Tex. 1983).           We note one exception to the above rule would be if the trial court had entered a valid temporary order under Section 157.374 of the Texas Family Code finding a serious immediate question concerning the children's welfare. See Tex. Fam. Code Ann. § 157.374 (Vernon 2002); see Strobel v. Thurman, 565 S.W.2d 238, 239 (Tex. 1978) (concerning former Section 14.10(c) of the Texas Family Code). Section 157.374 provides: "Notwithstanding any other provision of this subchapter, the court may render an appropriate temporary order if there is a serious immediate question concerning the welfare of the child." Tex. Fam. Code Ann. § 157.374. The term "serious immediate question" means imminent danger of physical or emotional harm that requires immediate action to protect the child. McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex. 1977); In re Lau, 89 S.W.3d 757, 759 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding).           Under the facts of this case, the trial court clearly abused its discretion by refusing to grant the application for writ of habeas corpus. Regardless of whether the trial court abused its discretion in finding there existed a serious and immediate question to the children's welfare, the trial court failed to issue any temporary orders pursuant to Section 157.374. A temporary order is required by Section 157.374. See Tex. Fam. Code Ann. § 157.374; see also Rocha v. Schuble, 809 S.W.2d 681, 683 (Tex. App.—Houston [14th Dist.] 1991, orig. proceeding); cf. McCaleb v. Hansard, 697 S.W.2d 73, 75 (Tex. App.—El Paso 1985, orig. proceeding). Further, the finding that there is a serious and immediate question concerning the welfare of the child must be made in a written temporary order; an oral finding is not sufficient. Lau, 89 S.W.3d at 759; M.J.R. v. Vick, 753 S.W.2d 526, 528 (Tex. App.—Fort Worth 1988, orig. proceeding) (citing Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex. 1983); McElreath, 545 S.W.2d at 958). Catherine Whatley has legal right of possession of the children under the permanent custody order. The custody agreement entered into by Catherine Whatley has expired. In the absence of a valid temporary order awarding custody of the children to someone other than Catherine Whatley and a written finding that a serious immediate question existed concerning the welfare of the children,       the trial court was required to grant the application for writ of habeas corpus. The relief sought is therefore conditionally granted. The writ will issue only if the trial court fails to take appropriate action in accordance with this opinion.                                                                              Donald R. Ross                                                                            Justice Date Submitted:      April 5, 2006 Date Decided:         April 6, 2006 OPINION ON MOTION ON REHEARING           The real party in interest, David Allen Whatley, has filed a motion for rehearing of our opinion conditionally granting the petition for issuance of a writ of mandamus filed by the relator, Catherine Marie Whatley. In the motion for rehearing, David Whatley requests that this Court consider his response attached to the motion for rehearing, withdraw our prior opinion, and deny the petition for writ of mandamus. We had requested that any response from the respondent or real party in interest be "received by this court no later than Monday, April 03, 2006." Although apparently mailed on April 3, 2006, David Whatley's response was not received by this Court until after the issuance of our opinion conditionally granting the writ of mandamus. In the response, David Whatley argues that the trial court did not clearly abuse its discretion in denying application for the writ of habeas corpus because a serious immediate question existed concerning the welfare of the children.           After considering the response, we remain convinced of the correctness of our prior opinion dated April 6, 2006. The motion to reconsider is overruled.                                                                            Donald R. Ross                                                                            Justice Date:             April 7, 2006 idi-font-family:"Times New Roman";} .MsoChpDefault {mso-style-type:export-only; mso-default-props:yes; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} .MsoPapDefault {mso-style-type:export-only; margin-bottom:10.0pt; line-height:115%;} /* Page Definitions */ @page {mso-page-border-surround-header:no; mso-page-border-surround-footer:no; mso-footnote-separator:url("6-11-141-CR%20Franklin%20v.%20State%20Opinion%20mtd_files/header.htm") fs; mso-footnote-continuation-separator:url("6-11-141-CR%20Franklin%20v.%20State%20Opinion%20mtd_files/header.htm") fcs; mso-endnote-separator:url("6-11-141-CR%20Franklin%20v.%20State%20Opinion%20mtd_files/header.htm") es; 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R. App. P. 33.1(a)(1).  We have previously held that challenges to the voluntariness of a plea of guilty must be raised at the trial court level to preserve the complaint for review on appeal.  Sims v. State, 326 S.W.3d 707, 713 (Tex. App.—Texarkana 2010, pet. dism’d) (citing Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004)); Starks v. State, 266 S.W.3d 605, 613 (Tex. App.—El Paso 2008, no pet.).  The issue could be raised by a motion for new trial during the plenary jurisdictional authority of the trial court. The trial court advised Franklin in open court of his right to file a motion for new trial, a motion in arrest of judgment, or to accept the court’s sentence. The record demonstrates that Franklin did not raise this issue below. Without presenting this issue to the trial court in any manner, it had no opportunity to address the merits. Without a timely objection, motion, or request that the trial court inquire into the voluntariness of his plea, Franklin has forfeited his right to complain about the voluntariness of his guilty plea.  Franklin’s point of error is overruled.            We affirm the judgment of the trial court.                                                                                       Jack Carter                                                                                    Justice  Date Submitted:         November 1, 2011     Date Decided:            November 15, 2011  Do Not Publish              [1]Originally appealed to the Third 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 (West 2005). We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.  [2]Franklin also appeals his conviction of burglary of a habitation addressed in our cause number 06-11-00142-CR on the same grounds.