Opinion
No. 04-02-00319-CV
Delivered and Filed: June 4, 2003.
Appeal From the 45th Judicial District Court, Bexar County, Texas, Trial Court No. 1996-EM5-01204, Honorable Fred Shannon, Judge Presiding.
Sitting by assignment.
DISMISSED IN PART FOR WANT OF JURISDICTION AND AFFIRMED IN PART
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
On March 19, 2002, the trial court signed an order finding Michael Ellison in contempt for failure to pay child support and ordering him committed to the county jail for a period of 180 days for each of four separate acts of contempt. On April 24, 2002, the court signed an order (1) rendering judgment against Ellison for the past due child support, (2) incorporating the March 19 contempt finding, and (3) suspending the commitment order and placing Ellison on probation for a period of seventy months. Ellison appeals the April 24, 2002 judgment.
Ellison contends he "was railroaded by the prosecution into 70 months of probation," the Attorney General committed misconduct in obtaining Ellison's signature agreeing to probation, and the trial judge unconstitutionally "side[d] with the prosecution" on these issues. However, we do not have jurisdiction to review a contempt order by direct appeal and must therefore dismiss these aspects of Ellison's appeal. See Ex parte Williams, 690 S.W.2d 243 n. 1 (Tex. 1985); In re Rich, 993 S.W.2d 272, 273 (Tex.App.-San Antonio 1999, no pet.); Metzger v. Sebek, 892 S.W.2d 20, 54-55 (Tex.App.-Hous. [1st Dist.] 1994, writ denied), cert. denied, 516 U.S. 868 (1995). "This is so even when the contempt order is being appealed along with a judgment that is appealable." In re Gonzalez, 993 S.W.2d 147, 157 (Tex.App.-San Antonio 1999, no pet.).
This court may review a contempt order only in the context of an application for a writ of habeas corpus when the contemnor's liberty has been restrained or, when the contemnor is not confined or otherwise had his liberty restrained, a petition for a writ of mandamus. See Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); Ex parte Williams, 690 S.W.2d 243, 243 (Tex. 1985); In re Pierre, 50 S.W.3d 554, 557-58 (Tex.App.-El Paso 2001, no pet.).
Ellison also contends he has been denied an opportunity to copy or consider the audio recording of the hearing that resulted in the April 24, 2002 judgment and has been wrongly denied a transcription. We disagree. The court recorder filed the record and provided a copy of the tape to Ellison. The clerk of this court also made the tape available to Ellison. Therefore, the responsibility for obtaining and filing an "appendix containing a transcription of all portions of the recording that [Ellison] considers relevant to the appellate issues or points" was Ellison's. See Tex.R.App.P. 38.5(a)(1). This court informed Ellison of his responsibilities under Rule 38.5(a)(1) and afforded him additional time to fulfill them, but Ellison failed to file an appendix.
This court advised Ellison that if he did not file the appendix by the date ordered, we would consider and decide only those issues or points that do not require a reporter's record for decision. See Tex.R.App.P. 37.3(c); In re J.A.G., 18 S.W.3d 772, 773 (Tex.App.-San Antonio 2000, no pet.); see also Tex.R.App.P. 38.5(b) ("The appellate court need not review any part of the electronic recording."). Ellison did not file an appendix and raises only issues requiring a record of the trial court proceedings (sufficiency of the evidence to support the amount of arrearages and interest awarded, the exclusion of evidence, the trial court's failure to consider evidence regarding Ellison's visitation rights, and the trial court's refusal to permit Ellison to pursue his request to claim his children as exemptions on his 2002 tax return). Without a record of the trial court proceedings, we are unable to review these issues See Bryant v. United Shortline Inc. Assur. Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998); Hale v. Hospice at the Texas Medical Center, 96 S.W.3d 688, 690 (Tex.App.-Beaumont 2003, no pet.); In re J.A.G., 18 S.W.3d at 773; In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex.App.-Amarillo 1999, no pet.); Penwell v. Barrett, 724 S.W.2d 902, 907 (Tex.App.-San Antonio 1987, no writ).
We dismiss Ellison's appeal of the trial court's contempt judgment for want of jurisdiction and affirm the remainder of the trial court's judgment.