in the Interest of B. G., C. W., E. W., B. B. W. and J. W., Children

• Court: Court of Appeals of Texas
• Decided: July 18, 2007
• Docket: 12-06-00295-CV
• Status: Published

Opinion

                                                                                                        NO. 12-06-00295-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF B.G.,         §                      APPEAL FROM THE 217TH

C.W., E.W., B.B.W. AND J.W.,        §                      JUDICIAL DISTRICT COURT OF

CHILDREN   §                      ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

            Lester Williams appeals the trial court’s postjudgment order denying him a free record in a conservatorship and termination proceeding brought by the Texas Department of Family and Protective Services (“DFPS”).  In one issue, Williams complains that the trial court violated his due process rights under the United States and Texas constitutions when it denied his request for a free record.  We affirm.

Background

            Following a bench trial, the trial court terminated Williams’s parental rights.  Williams, who had discharged his court appointed trial counsel and acted pro se at trial, requested that the trial court appoint counsel to represent him on appeal.  Through his subsequently appointed appellate counsel, Williams sought a free record based upon Williams’s indigent status.  The trial court conducted a posttrial hearing on the matter and issued a written order denying Williams a free record.  Williams now appeals that order.

Constitutional Issues

            In his sole issue, Williams argues that the trial court violated his due process rights under the United States and Texas constitutions when it denied his request for a free record.  Section 13.003 of the Texas Civil Practice and Remedies Code governs the provision of free clerk’s records and reporter’s records to indigent appellants.  See Tex. Civ. Prac. & Rem. Code Ann. § 13.003 (Vernon 2002).  Under section 13.003, a trial court may order that an indigent appellant be provided a free clerk’s record and reporter’s record only if

(1)           an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate Procedure; and

(2)           the trial judge finds:

(A)          the appeal is not frivolous; and

(B)          the [reporter’s record] and the [clerk’s record] are needed to decide the issue presented by the appeal.

Tex. Civ. Prac. & Rem. Code Ann. § 13.003(a) (Vernon 2002).

            Rule 33.1(a) of the Texas Rules of Appellate Procedure states as follows:

(a)           In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1)           the complaint was made to the trial court by a timely request, objection, or motion that:

   (A)       stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

   (B)       complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2)           the trial court:

   (A)       ruled on the request, objection, or motion, either expressly or implicitly; or

   (B)       refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Tex. R. App. P. 33.1(a).  Here, Williams did not assert his constitutional complaints at the hearing on his request for a free record.  Therefore, Williams failed to preserve error, if any, for appellate review.  See Tex. R. App. P. 33.1(a); Canal Ins. Co. v. Hopkins, No. 12-06-00411-CV, 2007 WL 1867350, at *7 (Tex. App.–Tyler June 29, 2007, no pet. h.) (applying Rule 33.1 to constitutional issues); In re T.L., No. 12-04-00219-CV, 2004 WL 2694600, at *5 (Tex. App.–Tyler Nov. 24, 2004, no pet.) (mem. op.) (also applying Rule 33.1 to constitutional issues).

            Under the fundamental error doctrine, we may review error that has not been preserved at trial.  Fundamental error exists “in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.”  Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993) (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982)).  We have not been presented with fundamental error in this case.  See id.  We overrule Appellant’s sole issue.

Disposition

            We affirm the trial court’s order.¹

                                                                                                    BRIAN HOYLE  

                                                                                                               Justice

Opinion delivered July 18, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

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¹ Williams has listed issues that he anticipates raising on appeal upon our reversal of the trial court’s order.  Because these are anticipated issues only, we do not address them here.