Opinion
No. 04-04-00928-CV
Delivered and Filed: July 27, 2005.
Appeal From the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-PA-02079, Honorable John J. Specia, Jr., Judge Presiding.
Associate Judge Peter Sakai presided over the termination proceedings and recommended that Cisneros' parental rights be terminated. The Honorable Judge John J. Specia, Jr. adopted the recommendation. Associate Judge Peter Sakai presided over the hearing on Cisneros' statement of appellate points and entered an order finding that an appeal would be frivolous.
Affirmed
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Joseph Cisneros appeals the trial court's determination that an appeal of the order terminating his parental rights would be frivolous. See Tex. Fam. Code Ann. § 263.405 (Vernon 2002). An appeal is frivolous when it lacks an arguable basis either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.App.-San Antonio 1998, order, no pet.) (en banc); see e.g., In the Interest of M.R.R., No. 04-04-00723-CV, 2004 WL 2597449, at *1 (Tex.App.-San Antonio Nov. 17, 2004, no pet.) (per curiam). In determining whether an appeal is frivolous, the trial court considers whether the appellant has presented a substantial question for appellate review. Tex. Civ. Prac. Rem. Code Ann. § 13.003 (b) (Vernon 2002); De La Vega, 974 S.W.2d at 153-54. We review a trial court's determination that an appeal is frivolous under an abuse of discretion standard. De La Vega, 974 S.W.2d at 154.
Cisneros also filed in this court a "Motion for a New Hearing on Defendant's Statement of [appellate] Points" in which he contends that his presence at the hearing by video conference deprived him of constitutional protections. In view of his pro se status on appeal, we liberally construe this motion as a supplemental appellate issue. Tex.R.App.P. 38.9. The record indicates that Cisneros participated in the hearing and had the opportunity to address the court and voice any objections. In addition, Cisneros failed to raise any objection in the trial court to attending the hearing by video conference, thereby waiving this issue on appeal. Tex.R.App.P. 33.1 (a); see Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993); see also Lacy v. State, 374 S.W.2d 244, 245 (Tex.Crim.App. 1963) (issue of defendant's right to be present at hearing on motion for new trial is waived on appeal by failure to assert the right in the trial court); Coons v. State, 758 S.W.2d 330, 339 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). We further conclude that Cisneros' due process rights were adequately protected by the trial court.
At the trial on the merits, the trial court specifically found that termination of Cisneros' parental rights was in the child's best interest and that the State had proven four of its alleged grounds for termination by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001 (1) (D), (E), (N), (O) (Vernon 2002). In his statement of appellate points, Cisneros raises a number of broad constitutional issues related to due process and civil liberties, but does not allege that any specific error was committed by the trial court, either in the procedure of the trial on the merits or in the court's findings on the grounds for termination and best interest of the child. See In re K.R.M., 147 S.W.3d 628, 630 (Tex.App.-San Antonio 2004, no pet.) (in termination proceedings, the petitioner must establish one or more of the statutory grounds for termination and must also prove that termination is in the best interest of the child). Cisneros fails to point out where the evidence is missing or insufficient to support the trial court's termination order. See Tex. Fam. Code Ann. § 161.001 (Vernon 2002); In the Interest of A.M.R., No. 04-03-00335-CV, 2003 WL 21467518, at *1 (Tex.App.-San Antonio June 25, 2003, no pet.) (not designated for publication) (trial court did not abuse its discretion in determining appellate points were frivolous where appellant failed to summarize for trial court where the evidence was missing or insufficient to sustain the trial court's findings). Cisneros has failed to raise a substantial question for appellate review that has an arguable basis either in law or in fact. See De La Vega, 974 S.W.2d at 153-54. After a thorough review of the record and the briefs on the merits, we conclude that the trial court did not abuse its discretion in determining that an appeal based on the points raised by Cisneros would be frivolous. We therefore affirm the trial court's judgment.
Issues raised in Cisneros' statement of appellate points include, among others: (1) the State violated Cisneros' Fourth Amendment rights when they searched and seized his daughter without a search warrant; (2) Cisneros' Fifth Amendment right against self-incrimination was violated when his daughter was compelled to testify against him because she is of his flesh and blood; (3) the Texas Family Code is unconstitutional; and (4) the Texas Department of Protective and Regulatory Services did not have authority to file the petition for termination.
We note Cisneros' inclusion of a "Motion for Writ of Habeas Corpus" on behalf of himself and his minor child in his statement of appellate points filed with the trial court. However, this direct appeal from the order terminating his parental rights is not the appropriate vehicle for raising this claim. See Tex.R.App.P. 52. We therefore do not address that issue in this opinion.