in the Interest of Z.A.T., K.M.T. & K.O.T., Children

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00347-CV

In the Interest of Z.A.T., K.M.T. & K.O.T., Children

From the 170th District Court

McLennan County, Texas

Trial Court No. 99-2937-4

DISSENTING Opinion

          The majority reverses this case on a faulty theory:  that the trial court did not allow Richard’s children to testify at the modification hearing.  That is not what happened. 

          Richard filed a motion to try to compel Valerie to bring the children to the hearing.  There is no mistaking what Richard wanted the trial court to do; as is evident from his prayer for relief:

…Petitioner prays this Court will grant this motion and order Respondent to bring the children to the trial on this cause.

          The trial court never denied Richard the opportunity to present his children as witnesses.  The court simply denied Richard’s request to make Valerie bring the children to the hearing.  The way to compel the presence of a witness at a proceeding is with a subpoena.  See Tex. R. Civ. P. 176.6.  Richard did not subpoena his children as witnesses.  And it is evident from the record that Richard knew how to subpoena witnesses.  If Richard had subpoenaed the children, and if the trial court had then not allowed them to testify, and if Richard had made an offer of proof, maybe the majority’s result would be appropriate.  But under the situation in this case where none of that happened, the analysis and the result are inappropriate. 

          The majority’s reason for reversing this case is wrong.  The trial court and the children should not be punished because Richard chose not to compel the children’s presence at the hearing in the proper manner.  We need to empower the trial court to protect children against abuses of the system.  What the majority does here is not the way to do it.

          I dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion issued and filed November 16, 2005

n any criminal action has the right of appeal.” Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979). Texas courts have consistently construed article 44.02 to allow an appeal only “from a ‘final judgment [of conviction],’ though the statute does not contain this limitation on its face.” Benford v. State, 994 S.W.2d 404, 408-09 (Tex. App.—Waco 1999, no pet.) (quoting State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990)).

      This Court has jurisdiction over other types of criminal appeals only when “expressly granted by law.” Benford, 994 S.W.2d at 409 (quoting Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)). No statute vests this Court with jurisdiction over an appeal from an order modifying the conditions of community supervision. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Christopher v. State, 7 S.W.3d 224, 225 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); Perez v. State, 938 S.W.2d 761, 762-63 (Tex. App.—Austin 1997, pet. ref’d). Accordingly, we dismiss this appeal for want of jurisdiction.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed August 28, 2002

Do not publish

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