Opinion
No. 01-08-00479-CV
Opinion issued May 18, 2009.
On Appeal from the 310th District Court, Harris County, Texas, Trial Court Cause No. 2005-28509.
MEMORANDUM OPINION
After a bench trial, the trial court terminated the parent-child relationship between appellant, Tawana Robinson, and her child, K.E., based on findings that appellant's conduct had violated Texas Family Code sections 161.001(1)(E), (F) and (O) and that termination was in K.E.'s best interest. See TEX. FAM. CODE ANN. §§ 161.001(1), (2) (Vernon 2008). We determine whether appellant's failure timely to file a statement of points for appeal precludes her sole appellate challenge of factual insufficiency of the evidence. We affirm.
Statement of Points
A. The Law
"Not later than the 15th day after the date a final order is signed by the trial judge, a party who intends to request a new trial or appeal the order must file with the trial court: (1) a request for a new trial; or (2) if an appeal is sought, a statement of the point or points on which the party intends to appeal." TEX. FAM. CODE ANN. § 263.405(b) (Vernon 2008). The statement of points may be combined with a motion for new trial. Id. § 263.405(b-1) (Vernon 2008). "The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial." Id. § 263.405(i) (Vernon 2008). A trial court may extend the deadline for filing a statement of points, upon good cause shown, under the provisions of Texas Rule of Civil Procedure 5. In re M.N., 262 S.W.3d 799, 803-04 (Tex. 2008); see also TEX. R. CIV. P. 5.
B. Procedural Timeline
The relevant events are as follows:
• May 15, 2008: the trial court signed the order of termination.
• May 30, 2008: the 15-day deadline for filing a statement of points or a motion for new trial ended on this day. See TEX. FAM. CODE ANN. § 263.405(b).
• June 4, 2008: the 20-day period in which to perfect appeal ended on this day. See id. § 263.405(a) (Vernon 2008); TEX. R. APP. P. 26.1(b).
• June 5, 2008: appellant's trial counsel moved to withdraw from her representation, with her consent, because he was "unable to effectively communicate" with her.
• June 5, 2008: appellant's trial counsel filed a notice of appeal.
Appellant's notice of appeal was filed one day late, and appellant did not file a motion for an extension of time to file her notice of appeal. See TEX. R. APP.P. 26.1(b), 26.3. Nonetheless, by order dated February 11, 2009, we construed appellant's notice of appeal as implying a motion for an extension of time, and we ordered appellant to offer a reasonable explanation for her failure to timely file the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Coronado v. Farming Tech. Inc., 994 S.W.2d 901, 901 (Tex.App. 1999, order). Appellant filed the required explanation on February 23, 2009. Accordingly, the appeal was timely perfected.
• June 10, 2008: the trial court granted trial counsel's motion to withdraw and appointed a different attorney as appellate counsel.
• June 10, 2008: Texas Department of Family and Protective Services ("TDFPS"), appellee in this Court, filed a motion to strike the notice of appeal for being untimely.
• June 14, 2008: the trial court's general plenary power expired. See TEX. R. CIV. P. 329b(d).
• June 20, 2008: appellate counsel filed a motion to extend post-judgment deadlines.
• June 24, 2008: the trial court granted TDFPS's motion to strike appellant's notice of appeal and struck same.
On November 13, 2008, we abated the appeal for the trial court to make findings on whether appellant wished to pursue her appeal. The trial court conducted a hearing on November 25, 2008, at which time it also considered appellant's motion (not contained in the appellate record) to reinstate herappeal. The trial court granted appellant's motion to reinstate her appeal and sent a copy of that order to the Clerk of this Court on January 12, 2009. On February 11, 2009, we reinstated the appeal.
• June 24, 2008: the trial court signed an order finding that appellant was indigent for purposes of appeal, that her appeal was not frivolous, and that a reporter's record and clerk's record were necessary for appeal. See TEX. FAM. CODE ANN. § 263.405(d) (Vernon 2008) (requiring hearing on such matters no later than 30th day after signing of termination decree).
• June 24, 2008: the trial court signed an order denying appellate counsel's motion to extend post-judgment deadlines.
• December 15, 2008: (as represented by counsel on appeal) appellate counsel filed a motion for new trial and statement of appellate points in the trial court.
The clerk's record does not contain this document. Rather, the document, which is file-stamped but not certified, is attached to appellate counsel's response to our February 11, 2009 order. We normally do not consider documents referenced on appeal that are not part of the official record. See Mitchison v. Houston Indep. Sch. Dist., 803 S.W.2d 769, 771 (Tex.App. 1991, writ denied) (holding that appellate court must hear and determine case on record as filed and cannot consider documents attached as exhibits or appendices to briefs or motions). However, because consideration of this document does not change the outcome of this appeal, we note the document in our timeline.
C. Discussion
The clerk's record shows that trial counsel did not file a statement of points at any time before his withdrawal. The record also shows that appellate counsel was not appointed until after the deadline to file a statement of points had already expired. In re J.O.A., No. 08-0379, 2009 WL 1165303, at *5 (Tex. May 1, 2009) ("Given the accelerated timetable, the burden should logically fall on trial counsel [to file a statement of points], and in this case necessarily so because [the father's] appellate counsel was not appointed until after the fifteen-day period had run."). No motion to extend time under rule 5 to file the statement of points was made during the trial court's plenary power. The only statement of points that appellant discusses is the one attached to her response to our February 11, 2009 order (not contained in the clerk's record), which was file-stamped December 15, 2008 — seven months after the final decree's signing. Under these circumstances, even if we can consider the December 15 statement of points that is not part of the official appellate record, that statement of points is untimely. See TEX. FAM. CODE ANN. § 263.405(b).
The filing of a statement of points is a procedural prerequisite to considering the sole issue that appellant raises on appeal. See Pool v. Tex. Dep't of Family Protective Servs., 227 S.W.3d 212, 215 (Tex.App. 2007, no pet.) (concluding that legal and factual-sufficiency challenges could not be reached for lack of statement of points); Mikowski v. Tex. Dep't of Family Protective Servs., No. 01-07-00011-CV, 2007 WL 3038099, at *2 (Tex.App. Oct. 18, 2007, no pet.) (memo. op.) (same). Appellant's statement of points was filed too late to be considered. Accordingly, we may not consider appellant's factual-sufficiency challenge.
Conclusion
We affirm the judgment of the trial court.