Court of Appeals of Texas, Sixth District, Texarkana
Submitted: July 6, 2017
Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 16-0935
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess Justice.
Marshall police officers were investigating a complaint about
an unidentified person with a firearm, J.R.'s mother,
Lacey,  told Officer Courtney Wells that she had
been sexually molesting the five children that resided in her
home. Consequently, the Texas Department of Family and
Protective Services (TDFPS) sought to terminate Lacey's
parental rights to J.R. After a Harrison County jury found
grounds for termination of Lacey's parental rights and
that termination was in the best interest of J.R., the trial
court entered its order terminating her parental rights. In
this appeal, Lacey contends that she was denied her right to
effective assistance of counsel. Lacey does not challenge the
sufficiency of the evidence to support the jury's
findings. Since we find that Lacey has not shown ineffective
assistance of counsel, we will affirm the judgment of the
trial, the evidence showed that, while Marshall police
officers were investigating a complaint about a person with a
firearm, Lacey told Wells that she had been sexually
molesting the five children that resided in her home. When
asked what she meant, Lacey told Wells that she sucked the
boys' penises and "fingered" the little girls.
She also told Wells that she and a male, Jamal, had been
planning for several weeks to murder her live-in boyfriend,
Gabe, and the five children. Later that morning, Lacey was
interviewed by Detective Rob Farnham of the Marshall Police
Department. In her recorded statement, Lacey gave fuller
details as to the extent of sexual abuse of her two sons,
J.R. and B.P., and of Gabe's children, A.V., G.V., and
Am.V. She further claimed that a past boyfriend and Jamal had
also molested the children. In her statement, Lacey said that
she smokes crack and that she had smoked crack with Jamal
about fifteen hours before her interview. Farnham testified
that in searching Lacey's apartment, the police found
handwritten journals that corroborated her story. In
addition, testimony showed that two of the children made
outcry statements at the Children's Advocacy Center (the
the grounds for termination were based primarily on
Lacey's statements regarding her sexual abuse of the
children, her trial counsel sought to challenge the
reliability of her statements. In counsel's cross
examination of Farnham and other officers, evidence was
elicited that the police could not verify many of the details
of Lacey's statement. For instance, the police could
never verify the identity or existence of Jamal, and the
police cleared all of the people that Lacey had said also
molested the children. In addition, Lacey's trial counsel
sought to show that she was the victim of emotional battering
by Gabe and that she may have been lying to protect him. Her
trial counsel was able to obtain agreement from several of
the TDFPS's witnesses that battered women will lie for
their batterer and that some of the actions exhibited by
Gabe, such as never allowing Lacey to be alone, handcuffing
her, jealousy, and yelling and screaming, can be signs of
trial counsel also called witnesses in her defense.
Gabe's sister, Guadalupe, testified that Gabe liked to
brainwash and control women, that he was jealous, and that he
would not let Lacey leave the house by herself. She also
testified that Gabe had accused several people of molesting
children and that she believed Gabe manufactured the story
about Lacey molesting the children.
Lacey's sister, Amy, testimony was elicited that B.P.,
who had made an outcry statement at the CAC, told her that he
did not see a black man or know that Lacey molested him, but
that Gabe had told him that they had done this to him while
he was asleep. She said that he denied experiencing any
molestation or seeing Lacey without clothes on or having sex,
but that Gabe told him that it happened. Amy also testified
that she believed Gabe brainwashed Lacey while she was under
the influence of drugs to say she abused the children and
tried to kill them. In addition, Lacey's trial counsel
sought to put on the testimony of B.P., who was six years old
at the time of trial, but after examining him, the trial
court found him incompetent to testify.
Standard of Review
termination of parental rights is sought by TDFPS, the Texas
Family Code requires the trial court to appoint counsel for
an indigent parent who opposes the termination. Tex. Fam.
Code Ann. § 107.013(a)(1) (West Supp. 2016); In re
A.M.M., No. 06-05-00039-CV, 2006 WL 42229, at *6 (Tex.
App.-Texarkana Jan. 10, 2006, no pet.) (mem. op.). This
statutory right to counsel includes the right to effective
counsel. In re K.S., 420 S.W.3d 852, 856 (Tex. App.-
Texarkana 2014, no pet.); A.M.M., 2006 WL 42229, at
*6 (citing In re M.S., 115 S.W.3d 534, 544 (Tex.
2003)). In parental rights termination cases, Texas courts
apply the standard set forth in Strickland v.
Washington to determine whether counsel is effective.
K.S., 420 S.W.3d at 856 (citing In re
J.O.A., 283 S.W.3d 336, 341-42 (Tex. 2009); In re
M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (citing
Strickland v. Washington, 466 U.S. 668 (1984)). To
prevail on an ineffective assistance of counsel claim, the
appellant must make two showings:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by [Texas law].
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so ...