David Mellema v. State ( 1990 )

Mellema v State

DISMISSED

MARCH 22, 1990

NO. 10-89-259-CR

Trial Court

# 89-380-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

DAVID MELLEMA,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

* * * * * * * * * * * * *

                From 54th Judicial District Court

                       McLennan County, Texas

* * * * * * * * * * * * *

Appellant was indicted for the offense of burglary of a habitation to which he entered a plea of not guilty. A jury convicted Appellant on October 6, 1989, of the offense for which he had been indicted, and assessed punishment at ten years in the Texas Department of Corrections, probated, and a fine of $10,000. On November 3, 1989, Appellant gave notice of appeal of his conviction in Cause No. 89-380-C.

Appellant has filed a request in this court, personally signed and verified by appellant and approved as to form and content by his attorney, to have his notice of appeal withdrawn. No decision of this court having been delivered prior to the receipt of this request for withdrawal of his notice of appeal, appellant's request is granted. The appeal is dismissed.

PER CURIAM

DO NOT PUBLISH

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From the 13th District Court

Navarro County, Texas

Trial Court No. 06-15667-CV

 

MEMORANDUM  Opinion

 

            Charlotte Tippett’s parental rights were terminated as to her child J.P.B.  Because Tippett did not timely file a statement of points as required by the Texas Family Code, the trial court’s judgment is affirmed.

            The Department of Protective and Regulatory Services filed a first amended petition for the termination of Tippett’s parental rights as to her child, J.P.B.  On September 26, 2007, a jury determined that the parent-child relationship between Tippett and the child should be terminated.  The trial court signed the final order of termination on the same day.  Thirteen days after the order of termination was signed, the trial court appointed appellate counsel for Tippett.  Tippett timely filed a notice of appeal.

            The Texas Family Code requires an appellant of a state-initiated termination order to file with the trial court, no later than 15 days after the final order is signed, a statement of points on which the appellant intends to appeal.  Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2006).  We, as the “appellate court[,] may not consider any issue that was not specifically presented to the trial court in a timely filed statement of points. . . .  Id. § 263.405(i); In the Interest of E.A.R., 201 S.W.3d 813 (Tex. App.—Waco 2006, no pet.).  When the clerk’s record was filed in this appeal, we noticed that there was no statement of points by Tippett contained within the clerk’s record.

            On November 9, 2007 the Clerk of this Court notified Tippett by letter of the absence of the statement of points and warned her that we may affirm the trial court’s judgment unless, within 21 days of the date of the letter, a response was filed showing grounds for this Court to consider any issue that was not raised in a timely filed statement of points.  Tippett filed her appellate brief on November 15, raising three issues.  On November 16, we received a supplemental clerk’s record which contained a motion for new trial, filed on October 26, 2007, 30 days from the date the order was signed, and a “Motion for Leave to  File Points of Appeal Out of Time and for Court to Consider Points Raised in Motion for New Trial as Points of Appeal” filed on November 13, 2007.  By her motion for leave, Tippett acknowledges that no timely filed statement of points is contained in the record.

            Therefore, Tippett’s issues are dismissed and the trial court’s judgment is affirmed.  See In the Interest of E.A.R., 201 S.W.3d 813, 814 (Tex. App—Waco 2006, no pet.).

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Justice Vance concurs in the judgment with a note) *

Affirmed

Opinion delivered and filed January 2, 2008

[CV06]

 

 

            * ”(Because the trial court appointed appellate counsel thirteen days after the termination order was signed, I continue to question the due process implications of subsections 263.405(b) and 263.405(i) as applied to this case. See In re E.A.R., 201 S.W.3d 813, 816-17 (Tex. App.—Waco 2006, no pet.)  (Vance, J., concurring); see also In re D.M., ‑‑‑ S.W.3d ---, ---, 2007 WL 4357665, at *10 (Tex. App.—Waco Dec. 12, 2007, no pet. h.)  (op. on reh’g)  (holding that subsections 263.405(b) and 263.405(i), as applied to indigent mother, violated her right to due process).)”