in the Interest of T.D.N. ( 2008 )

Affirmed and Majority and Concurring Memorandum Opinions filed June 26, 2008

Affirmed and Majority and Concurring Memorandum Opinions filed June 26, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00387-CV

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IN THE INTEREST OF T.D.N.

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Cause No. 06-11781J

M A J O R I T Y   M E M O R A N D U M  O P I N I O N

A father appeals the termination of his parental rights, asserting that the trial court erred in not granting his oral motions for continuance.  Because the father failed to preserve error for appellate review, we affirm.

I.  Factual and Procedural Background

The Department of Family and Protective Services filed this action to terminate  appellant Faustino Orosco=s parental rights as to T.D.N.  Though our record contains no request for a bench warrant, the trial court signed a bench warrant on February 27, 2007, ordering the Harris County Sheriff to deliver Orosco to the trial court on April 24, 2007, for the trial in this case.  According to Orosco=s counsel, Orosco was transferred to the Texas Department of Criminal Justice on April 7, 2007; therefore, at the time of trial, Orosco was in the custody of the Texas Department of Criminal Justice, rather than in the custody of the Harris County Sheriff.  Orosco did not request, and the trial court did not sign, any bench warrant directed to the Texas Department of Criminal Justice.  Neither the Harris County Sheriff nor the Texas Department of Criminal Justice delivered Orosco to the trial court on April 24, 2007.  At trial, Orosco=s counsel twice orally requested a continuance of the trial so that Orosco could be present at the proceedings.  The trial court did not rule on either oral motion.  Orosco=s counsel did not request a ruling or object to the trial court=s failure to rule or to any alleged refusal by the trial court to rule on the motions.  Orosco=s counsel did not request that the trial court order the Texas Department of Criminal Justice to deliver Orosco to the trial court.  The trial court rendered a judgment terminating Orosco=s parental rights.

II.  Issue and Analysis

In his sole issue, Orosco asserts that the trial court abused its discretion when it did not grant his oral motions for continuance. We conclude that Orosco failed to preserve error for appellate review.  A motion for continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the parties, or by operation of law.  Tex. R. Civ. P. 251; In the Interest of B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *4 (Tex. App.CHouston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).  Both of Orosco=s motions for continuance were oral, and the record does not contain a written motion for continuance or an affidavit.  The record also does not reflect that the parties consented to a continuance, nor does Orosco assert that a continuance should have been granted by operation of law.  Because Orosco did not comply with Rule 251, the trial court did not abuse its discretion by failing to grant a continuance. See In the Interest of B.S.W., 2004 WL 2994015, at *4; Ohlhausen v. Thompson, 704 S.W.2d 434, 436B37 (Tex. App.CHouston [14th Dist.] 1986, no writ).  In addition, Orosco failed to preserve error under Texas Rule of Appellate Procedure 33.1, which generally requires a party complaining on appeal to have obtained an adverse ruling on the appellate complaint in the trial court.  See Tex. R. App. P. 33.1(a).  The appellate record reflects that the trial court did not rule on Orosco=s motions for continuance, either expressly or implicitly.  Orosco did not request the trial court to rule on these oral motions, nor did he object to any alleged refusal of the trial court to rule on them.  See Clarke v. Hunter=s Glen Comty. Ass=n, No. 14-03-00971-CV, 2004 WL 1313294, at *1 (Tex. App.CHouston [14th Dist.] June 15, 2004, no pet.) (mem. op.).  By failing to do so, Orosco waived the complaint.  See id.

The Texas Supreme Court has ruled that a person in Orosco=s position does not have an absolute right to be present at trial.  See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).  Orosco=s counsel did not preserve error regarding Orosco=s request for a continuance.  In addition, Orosco does not argue or brief on appeal, and the record does not reflect, that had he been present at trial, the trial court=s judgment probably would have been different.

Because Orosco failed to preserve error on the only issue he asserts on appeal, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Memorandum Opinions filed June 26, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.  (Seymore, J., concurring).