Before Boyd, C.J., Quinn and Reavis, J.J.
Michael Lee Martin appealed his conviction for indecency with a child. Prior thereto and within the time allotted for doing so, he also moved for a new trial. Furthermore, within 75 days of the day sentence was imposed, the trial court granted same. This resulted in the cause being restored to its position before former trial, Tex. R. App. P. 21.9, and, we have no jurisdiction over the appeal. Waller v. State, 931 S.W.2d 640, 643-44 (Tex. App.-Dallas 1996, no writ).
Consequently, the appeal is dismissed for want of jurisdiction.
Brian Quinn
Justice
Do not publish.
an be via either allegations contained in an independent document or via allegations incorporated into a motion for new trial. And, while the statute refers to a "statement of points" we must be cautious against reading the provision too narrowly. Indeed, authority impedes our ability to dismiss appeals simply for harmless procedural defects. Verburgt v. Dorner, 969 S.W.2d 615, 616-17 (Tex. 1997). Instead, we are to liberally, yet reasonably, construe procedural rules "so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of the rule." Id. This would seem an appropriate admonishment to heed here given the gravity of the interests involved (i.e. the termination of the constitutionally protected relationship between parent and child) and the presumption that the legislature intended the statute to be just and reasonable. Tex. Gov't Code Ann. §311.021(3) (Vernon 2005).
Additionally, the record before us reveals that Daugherty moved for a new trial after issuance of the termination order. In it she alleged, among other things, that the new trial was warranted because the "involuntary termination statute was not strictly construed in favor of the parent" as supposedly required. Because it was not, she continued, she suffered harm under Texas Rule of Appellate Procedure 44.1(a)(1). We acknowledge that those allegations were not listed under a heading titled "statement of points on appeal." Yet, it cannot be forgotten that the substance of a pleading or writing controls over the title or label appended to it. Rush v. Barrios, 56 S.W.3d 88, 93 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). Moreover, the allegations were in a motion for new trial, which is one of the ways in which an appellant could comply with §263.405(i). And, they also informed the trial court of what Daugherty perceived to be the specific error which demanded redress. Consequently, we cannot say that she failed to either abide by the intent or letter of §263.405(i) or preserve at least one issue for review.
The motion to dismiss is denied.
Brian Quinn
Chief Justice