Opinion
No. 05-02-01190-CV
Opinion Filed July 11, 2003
On Appeal from the Judicial District Court No. 292, Dallas County, Texas, Trial Court Cause No. CV02-00337-V
AFFIRM
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
MEMORANDUM OPINION
Appellant Daniel Bates Smith appeals a protective order entered pursuant to section 85.001 of the Texas Family Code. See Tex. Fam. Code Ann. § 85.001 (Vernon 2002). In three points of error, appellant generally contends the trial court abused its discretion in denying his motion for new trial. For the following reasons, we affirm the trial court's order.
On April 10, 2002, after an evidentiary hearing, the trial court entered a protective order prohibiting appellant from, among other things, engaging in family violence against Tracy Tucker Roddy. Appellant subsequently filed a motion for new trial based on newly discovered evidence. The trial court denied the motion. In his first point of error, appellant contends the trial court abused its discretion in denying his motion for new trial. A party moving for a new trial based on newly discovered evidence must demonstrate by affidavit (1) new evidence has been discovered since trial or so late in the trial that it was impossible to present before the trial closed, (2) that it was not because of lack of due diligence that the evidence was not discovered, (3) the new evidence was not cumulative or impeaching, and (4) the evidence is so material that it would probably produce a different result in a new trial. See Jackson v. Van Winkle, 660 S.W.2d 808, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 46 Tex. Sup.Ct. J. 784, 786, 2003 WL 21356011 (June 12, 2003); Keever v. Finlan, 988 S.W.2d 300, 315 (Tex.App.-Dallas 1999, pet. dism'd).
In this point, appellant has made no effort to demonstrate why he did not discover the alleged new evidence prior to the time of the hearing on the application for a protective order. Nor do the affidavits attached to appellant's motion for new trial attempt to explain his failure to discover the evidence prior to that time. Consequently, the trial court did not abuse its discretion in denying the motion for new trial. See Jackson, 660 S.W.2d at 809; Keever, 988 S.W.2d at 315; Dankowski v. Dankowski, 922 S.W.2d 298, 305 (Tex.App.-Fort Worth 1996, writ denied). We overrule appellant's first point of error.
In appellant's second "point of error," appellant does not complain of any error in the trial court. Instead, appellant merely recites a portion of the record from a hearing on his second motion for new trial. Appellant includes no legal argument or authority in this point and does not present any legal issue for this Court to resolve. This point is inadequately briefed and presents nothing to review. See Tex.R.App.P. 38.1(h); Sharpe v. Roman Catholic Diocese of Dallas, 97 S.W.3d 791, 797 (Tex.App.-Dallas 2003, no pet.); Kang v. Hyundai Corp., 992 S.W.2d 499, 503 (Tex.App.-Dallas 1999, no pet.); Bowles v. Clipp, 920 S.W.2d 752, 761 (Tex.App.-Dallas 1996, writ denied.). Moreover, to the extent appellant is complaining of the trial court's denial of his second motion for new trial, that motion was not timely filed and therefore did not preserve error. See Moritz v. Preiss, 46 Tex. Sup.Ct. J. 784, 786, 2003 WL 21356011 (June 12, 2003). We overrule appellant's second point of error.
In his third point of error, appellant contends this Court "must find the evidence is so weak as to be clearly wrong and unjust." Although the title of appellant's point of error appears to challenge the sufficiency of the evidence to support the protective order, the substance of his contention is again based on newly discovered evidence. Specifically, appellant complains the trial court never heard certain testimony and asserts "based upon new evidence no rational trier of fact could find that [he] committed family violence." We have previously concluded appellant was not entitled to a new trial based on newly discovered evidence. See Jackson, 660 S.W.2d at 809; Keever, 988 S.W.2d at 315; Dankowski, 922 S.W.2d at 305. We overrule appellant's third point of error.
We affirm the trial court's judgment.