in the Guardianship of Iva Dee Fuller, an Incapacitated Person

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00104-CV ______________________________ IN THE GUARDIANSHIP OF IVA DEE FULLER, AN INCAPACITATED PERSON On Appeal from the County Court Upshur County, Texas Trial Court No. 178 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Cheryl Niles applied to become the temporary guardian of her ninety-two-year-old grandmother, Iva Dee Fuller. The trial court appointed Niles as Fuller's temporary guardian (1) and scheduled a hearing within two weeks to determine the necessity for the continuation of the temporary guardianship. After this hearing, of which no record is included on appeal, the court continued the temporary guardianship and scheduled a second hearing one month later to determine the continued necessity of the temporary guardianship. At the conclusion of the second hearing, the court terminated the temporary guardianship and stated, "Good luck Ms. Fuller. I want to say this. And I think you are competent." Niles appeals, claiming in one point of error that the judgment is against the great weight and preponderance of the evidence. A. Standard of Review We review the court's decision to terminate the temporary guardianship, and its decision to decline to further appoint a temporary guardian, for abuse of discretion. See Robinson v. Willingham, No. 03-05-221-CV, 2006 Tex. App. LEXIS 2788, at *8 (Tex. App.--Austin Apr. 6, 2006, no pet.) (mem. op.) (review appointment of guardian for abuse of discretion); Trimble v. Tex. Dep't of Protective & Regulatory Serv., 981 S.W.2d 211, 214-15 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (appointment); cf. In re Guardianship of Erickson, 208 S.W.3d 737, 743 (Tex. App.--Texarkana 2006, no pet.) (review removal of guardian for abuse of discretion); State ex rel. Tex. Dep't of Mental Health & Mental Retardation v. Ellison, 914 S.W.2d 679, 682 (Tex. App.--Austin 1996, no writ) (removal); Douglas v. Proctor, 559 S.W.2d 912, 913 (Tex. App.--Waco 1977, no writ) (removal of temporary guardian and termination of temporary guardianship within trial court's authority if in ward's interest). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but whether the court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Id. at 242. Moreover, the court of appeals cannot substitute its judgment for the trial court's reasonable judgment even if it would have reached a contrary conclusion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Though Niles raises a factual sufficiency point of error, factual sufficiency is not an independent, reversible ground of error in these guardianship proceeding rulings, but is, instead, a factor to consider in assessing whether the trial court abused its discretion. See Robinson, 2006 Tex. App. LEXIS 2788, at *10 (citing Trimble, 981 S.W.2d at 215); Erickson, 208 S.W.3d at 743. The trial court does not abuse its discretion if some evidence reasonably supports the trial court's decision. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). B. Declining to Reappoint a Temporary Guardian and Terminating a Temporary Guardianship We assess the court's refusal to reappoint Niles as temporary guardian by the guiding rules and principles set forth in the statute. The Texas Probate Code establishes the procedures governing temporary guardianships. See Tex. Prob. Code Ann. § 875. Temporary guardianships "may not remain in effect for more than 60 days," Tex. Prob. Code Ann. § 875(h), and may expire by their own terms. See Tex. Prob. Code Ann. § 875(l); see also Tex. Prob. Code Ann. §§ 878, 879 (Vernon 2003). Since Niles never applied to be Fuller's permanent guardian, her initial term as temporary guardian statutorily terminated, or expired, at the conclusion of the hearing considering her challenged application to continue the temporary guardianship. See Tex. Prob. Code Ann. § 875(l). The statute provides for the appointment, or reappointment, of a temporary guardian at the conclusion of the hearing when "the court determines that the applicant has established that there is substantial evidence that the person is . . . [an] incapacitated person, that there is imminent danger that the physical health or safety of the respondent will be seriously impaired, or that the respondent's estate will be seriously damaged or dissipated unless immediate action is taken." Tex. Prob. Code Ann. § 875(g). Indeed, on so finding, the court "shall" appoint a temporary guardian. Id. A review of the evidence shows that Niles presented only one witness at the hearing--herself--to testify to Fuller's incompetence. Niles also introduced a doctor's report. Fuller presented the testimony of an attorney and three long-time friends that she was competent. The physician's certificate summarized the doctor's opinion that Fuller was partially incapacitated with mild to moderate early senile changes probably due to early Alzheimer's disease. The doctor stated, in an addendum, that he found evidence of cognitive impairment and some associated memory loss, and that, although Fuller "most probably is able to continue living alone and take care herself [sic] with her family and friends checking in on her regularly as they have been doing," Fuller "does not seem to have the necessary mental faculties to prevent herself from being vulnerable to persons trying to take advantage of her financially." Niles testified that her grandmother had lost six income checks, although Fuller informed the court (without being sworn) that she had used those checks to open a separate bank account free from the temporary guardian's control. Niles further testified that Fuller had, in what Niles described as an uncharacteristic move, given or lent an ex-son-in-law $5,000.00. In total, from December 2005 to the hearing in May 2006, Niles stated Fuller was "missing" about $8,000.00. First to testify on Fuller's behalf was Dwight Brannon, a lawyer who had prepared Fuller's will and handled other legal matters for her. Brannon described Fuller as independent and feisty. He testified that, had Fuller wanted him to write a will in the months before the hearing, he would have, with confidence in her capacity. He testified that Fuller may have physical incapacity, but "she has the capacity to live by herself and take care of herself. Certainly, she has got to have some assistance for transportation, may need some advice. And you know, she is at an age where her health could fail faster than somebody, you know, thirty or forty years younger. . . . But the last time I talked to her, she seemed to be all right to me." Tony Snow, who has known Fuller for over eighty years, testified that Fuller is "of good, sound mind. She's a very talented woman. She works all the time, and she's very active." He opined that "her mind is as good as it's ever been." Leon Loveless, who has been friends with Fuller for twenty years, testified that, in his opinion, Fuller is not incapacitated and is capable of managing her personal and financial affairs and "is capable of taking care of her own business." Similarly, Thomas Hestand, who has known Fuller through church for eighteen years, testified that, in his opinion, Fuller is not incapacitated or incompetent. He stated that, though he may disapprove of Fuller's transactions with her ex-son-in-law, he believes she is competent to make those financial decisions. We find that the record demonstrates a reasonable basis for the trial court's decision that Niles did not prove incapacity or imminent danger to Fuller's health or estate. While the court heard conflicting testimony regarding Fuller's capacity, the court heard some evidence that reasonably supports its decision. Accordingly, the court did not abuse its discretion. We affirm the judgment. Jack Carter Justice Date Submitted: April 24, 2007 Date Decided: May 9, 2007 1. It appears from the record that this occurred without notice and citation to Fuller and in an ex parte proceeding. Any procedural impropriety in this method, see Tex. Prob. Code Ann. § 875 (Vernon Supp. 2006), though of concern, is not at issue in this appeal. Both the Sixth Amendment and the Texas Constitution confer a right to effective representation by counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. If counsel's performance is ineffective, the conviction cannot stand. The Texas Court of Criminal Appeals has held that the Texas Constitution does not impose a higher standard than the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986). The Sixth Amendment standard, established by Strickland, requires a defendant alleging ineffective assistance of counsel to show that his or her counsel's performance at trial was deficient and that counsel's deficient performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S. 668 (1984); see also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To satisfy the deficiency prong of the test, Thomas must prove by a preponderance of the evidence that his counsel's representation fell below the objective standard of professional norms. Bone, 77 S.W.3d at 833. There is a strong presumption that counsel's performance was adequate. Id. The reason for this presumption is that counsel at trial is better positioned to judge matters of strategy than an appellate court reviewing a cold record. An appellate court should not "conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). An ineffective assistance of counsel claim cannot be based on a difference of opinion concerning strategy. "[T]he defendant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836. First, Thomas contends his trial counsel failed to suppress prejudical evidence. The State argued at trial Thomas allowed the boys to smoke cigarettes and consume alcohol at his house. The State presented a theory Thomas had created a "playhouse" atmosphere. To further this theory, the State used three bottles of liquor as props to create the impression Thomas made alcohol freely available to the boys. Thomas claims his counsel's failure to suppress the bottles resulted in ineffective assistance. Thomas alleges the federal court suppressed the bottles based on its interpretation of state law. When claiming ineffective assistance of counsel for failure to attempt the suppression of evidence, an appellant must show that the motion to suppress would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). A certified copy of the federal court's ruling was not introduced into evidence. The only evidence of the suppression are the self-serving statements made by the accused. Other than Thomas' statement that the bottles were "outside the scope of the search warrant," there is no indication in the record as to why the bottles were suppressed in the federal court or even if they were suppressed. "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002); see Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). Thomas' trial counsel's decision concerning whether to challenge the admissibility of the evidence may have been a tactical decision. The bottles were not an essential element of any of the charges, and thus their effect is entirely tactical. This Court should not consider the wisdom of such a strategy, since ineffective assistance of counsel claims cannot be "built on retrospective speculation." Bone, 77 S.W.3d at 835. Thomas has not met his burden of proving that the failure to suppress the bottles fell below the objective standards of professional norms. Next, Thomas contends his trial counsel was ineffective because he failed to interview, subpoena, or call witnesses on Thomas' behalf. Thomas alleges he provided his trial counsel with a list of fourteen witnesses and inquired several times as to the status of his investigation. We note that the failure to call witnesses may be ineffective assistance of counsel. Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986) (failure to present available alibi witnesses deemed ineffective assistance of counsel). However, such witnesses must be shown to be available and to actually benefit the defense. Id.; Bates v. State, 88 S.W.3d 724, 728 (Tex. App.—Tyler 2002, pet. ref'd); Simms v. State, 848 S.W.2d 754, 758 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd). Thomas' argument fails because he failed to show that these potential witnesses were available and that their testimony would benefit his defense. The record indicates the defense counsel filed applications for subpoenas for several witnesses. As Thomas concedes in his affidavit, only one witness of the original four selected appeared to testify. Thomas concedes he chose not to call that witness. Of the other three witnesses, Thomas' affidavit makes clear that two would not benefit the defense. Thomas wanted to subpoena one of the witnesses concerning an assault J.S. had committed. However, evidence of juvenile adjudications and unadjudicated offenses are inadmissible to impeach a witness. See Tex. R. Evid. 608(b), 609(d). The second witness, a school counselor, had informed Thomas' lawyer she "wanted to see [Thomas] fry." Certainly, she does not appear to be a beneficial witness. The third witness, a friend of Thomas' from the seminary, did not appear for trial. Thomas alleges he "later learned from him that [the friend] never was served a subpoena, and was waiting for some direction from my attorney." The record contains no evidence as to what this witness' testimony would have been other than Thomas' vague assertion the friend could have testified "against one of the prosecution witnesses on my behalf" concerning Thomas' "helpful nature," "various ministry projects," and "friendship in the seminary." There is not sufficient evidence in the record regarding how this witness would have benefited Thomas' defense. Even if the witness had beneficial testimony, Thomas' trial counsel could have "reasonably determined that the potential benefit of additional witnesses or evidence was outweighed by the risk of unfavorable counter-testimony." Bone, 77 S.W.3d at 835. Thomas also complains about the lack of expert witnesses. The affidavit indicates his trial counsel had questioned two psychologists and determined their testimony would not aid the defense. This determination is a matter of strategy, and we must defer to the judgment of trial counsel. Because there are plausible professional reasons for not calling additional witnesses, Thomas has not met his burden of showing that his trial counsel's performance was deficient. Third, Thomas contends his trial counsel's failure to use exculpatory polygraph evidence rendered his assistance ineffective. Thomas' attorney at the federal proceedings arranged to have a polygraph examination conducted. At trial, the State attempted to call the polygraph operator as a witness. The State had intended to elicit testimony of admissions allegedly made by Thomas to the polygraph operator during a pre-test interview. Thomas asserted attorney-client privilege to prevent the operator from testifying. Thomas contends his attorney should have allowed the operator to testify, called his previous lawyer to rebut the operator, and introduced portions of the polygraph examination which were allegedly exculpatory. It is a reasonable conclusion counsel made the strategic decision that allowing the operator to testify as to Thomas' admissions would be undesirable. Texas courts have long refused to permit the results of polygraph examinations to be admitted at trial, for either the defendant or the State. Robinson v. State, 550 S.W.2d 54, 59 (Tex. Crim. App. 1977); Long v. State, 10 S.W.3d 389, 398 (Tex. App.—Texarkana 2000, pet. ref'd). The United States Supreme Court has held the exclusion of polygraph evidence did not unconstitutionally abridge the right of a defendant to present a defense because "[t]here is simply no consensus that polygraph evidence is reliable." See United States v. Scheffer, 523 U.S. 303, 309 (1998). The policy of the exclusion is based on the inherent unreliability of a polygraph examination and its tendency to be unduly persuasive. Marcum v. State, 983 S.W.2d 762, 765 (Tex. App.—Houston [14th Dist.] 1998, no pet.). In rare circumstances, polygraph evidence erroneously admitted at trial has "opened the door" to further inadmissible evidence regarding polygraph results. Long, 10 S.W.3d at 399 (citing Lucas v. State, 479 S.W.2d 314, 315 (Tex. Crim. App. 1972); Patteson v. State, 633 S.W.2d 549, 552 (Tex. App.—Houston [14th Dist.] 1982, no pet.)). Even if the polygraph examination could have been admitted, it may not have been exculpatory. Thomas provides three questions and answers which may prove exculpatory concerning the charges of inducing or promoting a sexual performance by a child. According to Thomas, the relevant excerpts of the polygraph examination are as follows: i.Did you ask [J.S.] to make a video of himself masturbating? (NO) ii.Were you in the room when [J.S.] was making a video of himself? (NO) iii.Did you ask [J.S.] to make a video for your pleasure? (NO) While these statements may prove exculpatory concerning the sexual performance charge, the testimony of the polygraph operator as a whole may not be exculpatory concerning the other charges. We do not have any testimony as to admissions which Thomas may have made. According to the State, Thomas had made some admissions concerning the sexual assaults of J.S. and T.M. The decision not to allow the testimony of the polygraph operator appears to be a tactical decision on the part of counsel. "[T]he defendant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836. Counsel may have determined that the risk of incriminating testimony by the operator outweighed the potential exculpatory evidence. Because polygraph examinations are generally inadmissible and the testimony of the operator may have incriminated Thomas in other ways, Thomas has failed to prove there is no plausible professional reason for his counsel's conduct. Last, Thomas alleges he received ineffective assistance of counsel due to his trial counsel's failure to effectively cross-examine the State's witnesses. We have reviewed the record and concluded trial counsel did a thorough and adequate cross-examination of the State's witnesses. Thomas argues his counsel should have asked the questions Thomas had provided him concerning the smoking by the boys at his house and x-rated movie. According to Thomas, the refusal to ask these questions renders his trial counsel's performance deficient. This argument focuses solely on matters of strategy. "Cross-examination is inherently risky, particularly in criminal cases where pre-trial discovery is more limited than in civil cases. A decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial." Ryan v. State, 937 S.W.2d 93, 103 (Tex. App.—Beaumont 1996, pet. ref'd) (quoting Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd)). At times, it can be more effective to refrain from cross-examining a damaging witness to minimize the impact of the testimony. Id. In addition to failing to ask certain questions, Thomas complains his counsel was ineffective because he asked certain questions which allegedly bolstered the State's case by "referring to the boys' masturbating [as recorded] on the video, when they were not masturbating, merely exposing themselves." Counsel was attempting to impeach J.S. concerning his claim of being forced to masturbate due to threats made by Thomas. Counsel simply pointed out he was doing the "same thing" on the video without any apparent threats. We cannot consider the wisdom of counsel's strategy, since ineffective assistance of counsel claims cannot be "built on retrospective speculation." Bone, 77 S.W.3d at 833. Further, such a statement does not bolster the State's case, because under the statute, both exhibition of genitals and masturbation constitute sexual conduct. See Tex. Pen. Code Ann. § 43.25 (Vernon Supp. 2004). We conclude that trial counsel's cross-examination did not fall below the objective standards of professional norms. Further, claims of ineffective assistance of counsel must be evaluated based on the totality of the circumstances. This Court must be able to conclude that trial counsel's actions amounted to ineffective assistance of counsel based on the totality of the circumstances. The constitutional right to counsel does not mean errorless counsel. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993); Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). In the totality of the circumstances, trial counsel's performance was not deficient. The second prong of the ineffective assistance of counsel test is whether Thomas' trial was prejudiced by his trial counsel's alleged deficiency. Texas law requires Thomas to meet both prongs of Strickland. A defendant does not meet his or her burden by merely showing that an error had some conceivable effect on the outcome of the trial. Strickland, 466 U.S. at 693. The defendant must show a "reasonable probability" that, but for the error, the result of the trial would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. Because trial counsel's performance at trial was not deficient, there is no need to examine the second requirement of Strickland. However, Thomas has made no showing of how the deficient performance of trial counsel raises a reasonable probability the result of the trial would have been different. We do not find trial counsel rendered ineffective assistance to Thomas. For the reasons stated, we affirm the judgment of the trial court. Jack Carter Justice Date Submitted: February 26, 2004 Date Decided: March 3, 2004 Do Not Publish