In re A.H.L., III

• Decision Date: 26 October 2006
• Docket Number: No. 08-05-00307-CV.,08-05-00307-CV.
• Citation: 214 S.W.3d 45
• Parties: In the Interest of A.H.L., III, a Child.
• Court: Texas Court of Appeals

214 S.W.3d 45

In the Interest of A.H.L., III, a Child.

No. 08-05-00307-CV.

Court of Appeals of Texas, El Paso.

October 26, 2006.

Rehearing Overruled December 6, 2006.

Lana Shadwick, Texas Department of Family & Protective Services, Houston, for appellee.

Mimi Smith, Alpine, Attorney Ad Litem.

Alvaro Luna Hernandez Jr., Gatesville, appellant pro se.

Before McCLURE, J., CHEW, J., and BARAJAS, C.J. (Ret.).

OPINION

ANN CRAWFORD McCLURE, Justice.

Alvaro Luna Hernandez, Jr., pro se, appeals from a judgment terminating his parental rights to A.H.L. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Hernandez and Maria Imelda Rodriguez are the parents of ten-year-old A.H.L., who was born on July 31, 1996. On June 9, 1997, a jury found Hernandez guilty of aggravated assault of a public servant¹ committed on July 18, 1996, less than two weeks before A.H.L.'s birth. The jury also found that Hernandez had previously been convicted of capital murder on January 20, 1976 and of jail escape on March 2, 1970, and it assessed Hernandez's punishment at imprisonment for a term of fifty years. Hernandez is presently serving that sentence in the Texas Department of Criminal Justice, Institutional Division, and he is not eligible for parole until 2021.

Hernandez and Rodriguez divorced in 1998 and Rodriguez was appointed sole managing conservator. Rodriguez had problems with substance abuse and did not provide adequate supervision of the child. Consequently, he was often found "out and about in the community" by himself, and between the ages of five and eight, he began engaging in inappropriate conduct such as shoplifting, vandalism, and assault. On one occasion, he threatened another child with a pocketknife. Due to his young age, A.H.L. could not be handled as a juvenile. A juvenile probation officer would often wait with him at the police station until either his mother or grandmother could be located. Finally, the Department of Family and Protective Services removed the boy from his mother's home due to inadequate supervision.

On June 29, 2004, the Department filed a petition to terminate the parental rights of both Hernandez and Rodriguez. Hernandez, acting pro se, filed an answer, affirmative defenses, and a counter-claim seeking monetary damages against Governor Rick Perry, and the executive director and board members of the Department. On February 15, 2005, Hernandez requested the appointment of an attorney ad litem to represent him "in his vigorous opposition to the termination of his parent-child relationship." Two days later, he sought a bench warrant so that he could present testimony and "prosecute his case pro se, in relation to all the procedural pleadings he has filed in this proceeding." The Department also asked to have Hernandez bench-warranted for the jury trial. The trial court appointed Bonnie Bratton as attorney ad litem. It then granted Hernandez's motion for a bench warrant and ordered that he be brought to Brewster County for trial which was at that time set for June 14, 2005. The court later revoked the warrant and issued one for an August 29 trial date.

Shortly before trial, the court revoked the second warrant based on its findings that Hernandez represented a high security risk, and that the cost and inconvenience of transporting Hernandez, and providing for increased security in the courtroom and in the jail, outweighed the jury's need to observe Hernandez's demeanor.

In the meantime, Ms. Bratton requested that she be allowed to withdraw from representation, or alternatively, that the scope of her representation be limited strictly to the termination proceeding. Bratton asked that Hernandez be allowed to represent himself in connection with his counterclaims and certain affirmative defenses upon which Hernandez insisted but which she believed should not be asserted. A short time later, Hernandez filed a motion in which he waived his right to counsel and asked that Bratton be dismissed so he could exercise his right of self-representation. The trial court heard these issues on April 20, 2005. Hernandez participated in the hearing via telephone. The court denied Bratton's motion to withdraw but clarified the appointment by ordering that counsel did not have a duty to represent Hernandez: (1) in any claims for monetary damages, (2) in any claims or affirmative defenses involving an assertion that the Department had lost and forfeited legal authority and jurisdiction to act as a state agency or to pursue its statutory duties; (3) in any claims or affirmative defenses attempting to relitigate the facts or legal issues of Hernandez's legal convictions for the purpose of showing that Hernandez had not engaged in any criminal conduct; (4) in any claims under the Americans With Disabilities Act on behalf of A.H.L. or Rodriguez or other children in Texas; (5) in any affirmative defenses under the Americans With Disabilities Act based upon the classification of A.H.L. or Rodriguez or other children in Texas; and (6) any constitutional claims on behalf of A.H.L. and Rodriguez. At a subsequent hearing, the judge orally denied Hernandez's motion to represent himself but indicated that he would reconsider the issue before trial. He advised Hernandez to notify him if counsel failed to take any actions that Hernandez believed she should.

Prior to trial, Rodriguez voluntarily relinquished her parental rights and the trial court entered judgment. A jury found that termination of Hernandez's parental rights was in the child's best interests and that Hernandez had knowingly engaged in criminal conduct that had resulted in conviction of an offense and confinement or imprisonment and inability to care for his son for not less than two years from the date the petition was filed. The trial court entered judgment terminating Hernandez's parental rights. Hernandez timely filed a pro se notice of appeal, and a combined motion for new trial and statement of the points he intended to raise on appeal.

SELF-REPRESENTATION AND BENCH WARRANT

Hernandez's first two issues concern the trial court's refusal to allow him to represent himself or to participate in the trial except through affidavit or deposition. We will first address the denial of the bench warrant because it impacts the self-representation claim raised in Issue One.

Denial of Motion for Bench Warrant

In Issue Two, Hernandez complains that the trial court abused its discretion by denying his request for a bench warrant because the court's security concerns were not particularized and were exaggerated. Litigants cannot be denied access to the courts simply because they are inmates. In re Z.L.T., 124 S.W.3d 163, 165 (Tex.2003). However, an inmate does not have an absolute right to appear in person in every court proceeding. Id. The inmate's right of access to the courts must be weighed against the protection of our correctional system's integrity. Id. Trial courts are required to consider several factors when deciding whether to grant an inmate's request for a bench warrant, including: (1) the cost and inconvenience of transporting the prisoner to the courtroom; (2) the security risk the prisoner presents to the court and public; (3) whether the prisoner's claims are substantial; (4) whether the matter's resolution can reasonably be delayed until the prisoner's release; (5) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; (6) whether the prisoner's presence is important in judging his demeanor and credibility; (7) whether the trial is to the court or a jury; and (8) the prisoner's probability of success on the merits. Id. at 165-66.

The litigant requesting the bench warrant bears the burden of establishing his right to relief and he must provide factual information demonstrating why his need to appear outweighs the impact on the correctional system. Id. at 166. The trial court does not have a duty to independently inquire into the necessity of an inmate's appearance beyond the contents of the bench warrant request. Id. We review a trial court's ruling on a bench warrant request for an abuse of discretion. Id. at 165.

Sheriff Ronnie Dodson testified during a pretrial hearing that he was familiar with Hernandez's criminal history, including the aggravated assault committed against then-sheriff Jack McDaniels when Hernandez disarmed McDaniels and went on the run with the sheriff's gun. Sheriff Dodson expressed his opinion that extra precautions would be warranted if Hernandez were brought to Brewster County to participate in the trial. The trial judge discussed on the record his reasons for revoking the bench warrant. The judge noted that counsel for Hernandez had requested that Hernandez be shackled while in the courtroom because she feared for her own safety. Additionally, the judge had spoken with the sheriff about his security plans for Hernandez's trial and had learned that the sheriff planned to have ten deputies devoted exclusively to the security of the courthouse, the prisoner, and the jail while Hernandez was present. The court also was aware of Hernandez's criminal history, including his conviction of capital murder and the aggravated assault conviction for which he is presently incarcerated. Based on the costs and the security implications for the county, the court determined that the bench warrant should be revoked. Hernandez would participate in the trial through counsel and he would be allowed to testify by deposition. But Hernandez refused to participate in the deposition and insisted that he should be physically present at trial and allowed to proceed pro se.

Given Hernandez's criminal history, the court's security concerns are supported by the record. Additionally, the sheriff's security plan would necessitate additional costs and inconvenience for the county because ten deputies would be required to devote their time...