in the Interest of K. M.H ( 2005 )

Motion for Rehearing Granted; Supplemental Opinion on Rehearing Filed December 8, 2005

Motion for Rehearing Granted; Supplemental Opinion on Rehearing Filed December 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00458-CV

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IN THE INTEREST OF K.M.H.

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 23903*RH03

S U P P L E M E N T A L   O P I N I O N  

O N   M O T I O N   F O R R E H E A R I N G

In our original opinion, we concluded that Hoback=s counsel had waived Hoback=s first two issues at oral argument.  Hoback=s counsel then filed a motion for rehearing, stating that she did not intentionally waive these issues and intended only to waive oral argument and have the court rely on her brief.  Rule 47.1 of the Texas Rules of Appellate Procedure provides that we Amust . . . address[] every issue raised and necessary to the final disposition of the appeal.@  Tex. R. App. P. 47.1 (emphasis added). If it is unclear whether a party has waived an issue at oral argument, we should address it.  See CSR Ltd. v. Link, 925 S.W.2d 591, 595 n.1 (Tex. 1996) (AThe plaintiffs claim that CSR waived the right to contest personal jurisdiction in Texas because of admissions CSR allegedly made before the West Virginia Supreme Court during unrecorded oral argument.  CSR disputes that contention.  Because there is a dispute about what was said, we do not find a judicial admission that knowingly waives a constitutional right under these circumstances.@ (citation omitted)); Mosley v. State, 931 S.W.2d 670, 675 n.2 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d) (addressing a contention because Ait was unclear whether the state was waiving the contention entirely or if it was simply not going to orally argue the contention@).  Given that the argument was unrecorded, the two issues were fully briefed, and counsel disputes any intent to waive, we have granted rehearing to consider Hoback=s other two issues.

In his first issue, Hoback contends the trial court erred in denying his request for a jury trial.  In reviewing Hoback=s claim that his counsel was ineffective in failing to make a timely jury demand, the majority and concurrence disagreed as to whether Hoback=s counsel actually requested a jury trial.  However, even if there was a proper jury request, Hoback waived any error because he failed to object when the trial court proceeded with a bench trial.  See In re D.R., No. 01-00-00582-CV, __ S.W.3d __, 2005 WL 1992108, at *5 (Tex. App.CHouston [1st Dist.] Aug. 18, 2005, no pet. h.) (A[A] perfected right to a jury trial in a civil case may be waived by a party=s failure to act when the trial court proceeds with a bench trial.@); Trimble v. Tex. Dep=t of Protective & Regulatory Servs., 981 S.W.2d 211, 220 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (finding that failure to object waived complaint of no jury trial, even when properly requested and paid).  We therefore overrule Hoback=s first issue.

In his second issue, Hoback complains the trial court erred in denying counsel=s request to withdraw from representation of one of the parties based on a conflict of interest.  In determining whether a conflict of interest exists between parents in a termination suit, the trial court must decide Awhether there is a substantial risk that the appointed counsel=s obligations to one parent would materially and adversely affect his or her obligations to the other parent.@  In re B.L.D., 113 S.W.3d 340, 343 (Tex. 2003).  We review a trial court=s determination of whether there was a conflict of interest for an abuse of discretion.  Id. at 347.  In reviewing Hoback=s ineffective assistance of counsel claim based on this alleged conflict of interest, we determined that the record in this case shows no substantial risk that counsel=s obligations to Kite would materially and adversely affect her representation of Hoback.  Accordingly, we find the trial court did not abuse its discretion in denying counsel=s request to withdraw.  Hoback=s second issue is overruled.

Having overruled the remainder of Hoback=s issues, the judgment of the trial court is affirmed.

/s/      Leslie Brock Yates

Justice

Supplemental Opinion on Motion for Rehearing filed December 8, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.  (Anderson, J. would deny motion for rehearing.)