In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-04-00048-CR
______________________________
MICHAEL CLOYD PITTS, Appellant
Â
V.
Â
THE STATE OF TEXAS, Appellee
                                             Â
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 30709-B
                                                Â
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
            Michael Cloyd Pitts pled guilty to two different charges of driving while intoxicated, subsequent offense, each a third-degree felony. See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003), § 49.09(b) (Vernon Supp. 2004â2005). The cases were then submitted to a jury for punishment. The jury recommended Pitts receive six years' imprisonment in one case and ten years' imprisonment in the other; the trial court ordered that Pitts' sentence in the second case be served consecutively to the sentence in the first case. Pitts appealed the judgments separately, but he raises the same issue in each case: Pitts contends his sentences are disproportionate to his crimes.
            Before we can address this issue on the merits, it must be preserved for our review. In Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.âTexarkana 1999, no pet.), we held that a defendant is required to raise in the trial court at the time the sentence is imposed any objection he or she might have on the ground of disproportionality. In this case, Pitts did not present this issue to the trial court by any means, objection or otherwise; therefore, he did not preserve it for our review. See Tex. R. App. P. 33.1(a); Alberto v. State, 100 S.W.3d 528, 529â30 (Tex. App.âTexarkana 2003, no pet.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.âTexarkana 2002, no pet.); Jackson, 989 S.W.2d at 844.
            We affirm the judgment.
                                                                        Jack Carter
                                                                        Justice
Date Submitted:Â Â Â Â Â Â Â Â Â Â January 6, 2005
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â January 7, 2005
Do Not Publish
rity="66" SemiHidden="false" UnhideWhenUsed="false" Name="Medium List 2 Accent 2"/>
|
|
Â
Â
Â
Â
Â
Â
Â
Â
Â
In The
Court of Appeals
                       Sixth Appellate District of Texas at Texarkana
Â
                                               ______________________________
Â
                                                            No. 06-11-00014-CV
                                               ______________________________
Â
Â
                                                                Â
Â
                              IN THE INTEREST OF S.K.S., A CHILD
Â
                                                                Â
Â
                                                                                                 Â
Â
Â
                                       On Appeal from the 76th Judicial District Court
                                                             Titus County, Texas
                                                           Trial Court No. 34,830
Â
                                                                                                 Â
Â
Â
Â
                                         Before Morriss, C.J., Carter and Moseley, JJ.
                                       Memorandum Opinion by Chief Justice Morriss
                                                     MEMORANDUM OPINION
Â
           After a long history of drug abuse by Jerry and Christy Smith and the incarceration of both, their parental rights to S.K.S. were terminated. The Smiths appeal, urging three appellate issues. We affirm the judgment of the trial court, becauseÂalthough (1) a statement of points on appeal was adequately filedÂ(2) no due-process-deprivation error was preserved for appellate review and (3) the evidentiary sufficiency issues on appeal were not in the statement of points.
           Jerry is incarcerated. S.K.S. was removed from ChristyÂs possession when she reported to a battered womenÂs shelter. At the time of the termination, both Jerry and Christy were in jail. In addition to the drug abuse by both parents, the record shows that Jerry beat Christy severely on several occasions, but that she kept coming back to him. Ultimately, Jerry and Christy ran away with S.K.S. when Jerry learned he was about to be arrested.
           The order of termination was signed January 31, 2011. A premature notice of appeal was filed by the Smiths, pro se, January 25, 2011. A notice of accelerated appeal was filed by appointed counsel February 10, 2011. That notice contains a Âstatement of points on appeal. Those points read as follows.
Point 1: Respondents constitutional rights to rear their child free from interference by the government has been violated by the trial courtÂs failure to apply the due process standards set by the United States and Texas Constitutions and by the Texas Legislature in Chapter 263 of the Texas Family Code.
Â
Point 2: The evidence presented at final hearing of this matter is legally insufficient to support the CourtÂs ruling terminating the natural parents parental rights is in the best interests of the child.
Â
Point 3: The evidence presented at final hearing of this matter is factually insufficient to support the CourtÂs ruling terminating the natural parents parental rights is in the best interests of the child.
Â
(1)Â Â Â Â Â Â Â A Statement of Points on Appeal Was Adequately Filed
           As a threshold matter, the State argues that the Smiths did not properly present a statement of points to the Court and therefore must fail in their appeal. Section 263.405 of the Texas Family Code contains the requirements for statements of points. The first argument made by the State is that the points were not properly presented because they were part of a notice of appeal, rather than either being presented separately or as part of a motion for new trial.
            Â[A] party who intends to . . . appeal . . . must file with the trial court . . . a statement of the point or points on which the party intends to appeal. Tex. Fam. Code Ann. § 263.405(b) (West 2008). The statute specifically allows the statement to be combined with a motion for new trial.
           We do not read that section as restrictively as the State. The State argues that points are adequately presented only if filed in a separate statement of points or as part of a motion for new trial. In this instance, the statement of points (although separately labeled) was contained within the notice of appeal, and that document was timely filed as a statement of points. Further, the language of the order granting appointed counsel makes it clear that the document was recognized by the trial court, as the order refers to the notice of appeal and the statement of points on appeal set forth therein.
           We find this to be sufficient to meet the requirements of the statute. We do not read the statute as providing only particular formats in which the statement of points may be presented to the Court, although sufficient clarity to identify the points would certainly be necessary. Such exists in this case, and its presentation to the Court within the Smiths notice of appeal is sufficient to meet the requirements of the statute.
           All three issues presented on appeal complain of failures with regard to the service-plan requirements of Sections 263.101 and 263.102 of the Texas Family Code. By contrast, the statement of points on appeal never complains of either of those sections or the alleged service plan defects.
(2)Â Â Â Â Â Â Â No Due-Process-Deprivation Error Was Preserved for Appellate Review
           The Smiths first assert a due process deprivation in the trial courtÂs failure to apply due process standards set out by the State and Federal Constitutions and by Chapter 263 of the Texas Family Code, specifically by not preparing a Family Service Plan for Jerry and by presenting a plan for Christy that could not be followed because it required her to appear for examinations, counseling, parenting classes, and drug screens that could not take placeÂbecause both Jerry and Christy were incarcerated.[1]
           The State contends that we should not address the constitutional issues raised by the Smiths because they were inadequately set out in the points[2] or because they were not raised before the trial court. Because we agree with the latter contention, we need not address the former.
           On appeal, the Smiths argue that failures with regard to the service plan deny them due process. This was never preserved by raising it with the trial court.
           Issues raised on appeal are to direct our attention to error in the trial court.  See generally Tex. R. App. P. 33.1. Due process and other alleged constitutional violations also must be raised in the trial court for them to be preserved for appellate review. In re L.M.I., 119 S.W.3d 707, 710Â11 (Tex. 2003); In re K.A.S., 131 S.W.3d 215, 230Â31 (Tex. App.ÂFort Worth 2004, pet. denied); see also In re B.L.D., 113 S.W.3d 340, 349Â55 (Tex. 2003) (discussing preservation of error in termination cases).  Further, any objection must be made in a timely fashion. Tex. R. App. P. 33.1. In this case, the issue raised here was not even hinted at until, after judgment, a statement of points was filed.  Also, the complaints regarding the service plan were not mentioned until the Smiths filed their appellate brief. That is insufficient to preserve the alleged error for our review. See L.M.I., 119 S.W.3d at 710.
Generally, our civil rules of procedure and our decisions thereunder require a party to apprise a trial court of its error before that error can become the basis for reversal of a judgment.
Â
 In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999).
Â
           Because the due-process-deprivation issue raised here was not raised with the trial court, it was not preserved for our review.
(3)Â Â Â Â Â Â Â The Evidentiary Sufficiency Issues on Appeal Were Not in the Statement of Points
           In their brief, the Smiths complain that the evidence is legally and factually insufficient to support termination, because there was no adequate service plan provided by the Department. Points 2 and 3 as stated in the statement of points, however, claim evidentiary insufficiency to prove that termination was in the best interest of S.K.S., never mentioning the service plan. The issues claimed on appeal are not those stated in the statement of points.Â
           As to these points, we have jurisdiction to address only whether the evidence is sufficient to demonstrate that termination is in S.K.S.Âs best interest. Even if we read the Smiths briefing as arguing that, because of failures relative to a service plan, the evidence is insufficient to prove best interest, the arguments fail; the alleged failure regarding a service plan does not bear on the best-interest issue.
           We affirm the judgment of the trial court.
Â
                                                                                 Josh R. Morriss, III
                                                                                  Chief Justice
Â
Date Submitted:Â Â Â Â Â Â Â Â Â June 8, 2011
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â June 21, 2011
[1]The Smiths evidentiary sufficiency arguments are largely predicated on the failure of the Department of Family and Protective Services (Department) to provide these plans.
[2]The constitutional claim set out in the statement of points was quite general, complaining only generally that the trial court failed to apply due process standards set by the State and Federal Constitutions and by Chapter 263 of the Texas Family Code. It is difficult to see how that notifies anyone of the Smiths intent to complain on appeal about alleged failures to comply with the service plan requirements of Sections 263.101Â.102 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 263.101Â.102 (West 2008).