                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH


                                  NO. 2-06-333-CV


IN THE INTEREST OF J.J.,
A CHILD

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           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                           MEMORANDUM OPINION 1

                                        ------------

      Appellant Robert J. appeals from the termination of his parental rights to

his son J.J. after a trial held in Robert’s absence but with Robert’s attorney

present and participating. Robert filed his combined statement of points and

motion for new trial after the statutorily mandated fifteen-day deadline. 2

      In his first two points, Robert contends that subsections (b) and (i) of

section 263.405 of the Texas Family Code violate the equal protection and due


     1
          See T EX. R. A PP. P. 47.4.
      2
          See T EX. F AM. C ODE A NN. § 263.405(b) (Vernon Supp. 2007).
process provisions of the federal constitution and the equal protection and due

course of law provisions of the state constitution. This court recently held

“that section 263.405(i) is . . . void as a violation of the separation of powers

provision of the Texas constitution.” 3 However, Robert does not indicate how

he personally was harmed by either subsection (b) or subsection (i). That is, he

does not suggest any appellate issue that he was prevented from raising as a

result of section 263.405 and does not show how any constitutional violation

resulted in an improper judgment. 4       Accordingly, we overrule his first two

points.

      In his third point, Robert contends that the trial court abused its discretion

by denying his motion for new trial. The trial court denied Robert’s motion for

new trial after the statutorily mandated time for filing a statement of points had

already expired,5 so Robert did not raise and could not have raised this point in

a timely filed statement of points.      Under the express language of section




      3
     In re D.W., No. 02-06-191-CV, 2008 WL 467328, at *12 (Tex.
App.—Fort Worth Feb. 19, 2008, no pet. h.) (en banc).
      4
      See T EX. R. A PP. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166
S.W.3d 212, 220 (Tex. 2005); see also In re E.A.W.S., No. 02-06-00031-CV,
2006 WL 3525367, at *18 (Tex. App.—Fort Worth Dec. 7, 2006, pet. denied)
(mem. op.).
      5
          See T EX. F AM. C ODE A NN. § 263.405(b).

                                          2
263.405(i), we would not be able to address this point.6 However, because

this court has already held that section 263.405(i) is unconstitutional and thus

not a bar to our consideration of issues not raised in a statement of points,7 we

will address Robert’s point that the trial court abused its discretion by denying

his motion for new trial.

      Robert primarily argues that even though he failed to appear at trial, he

satisfied the Craddock 8 test and that therefore the trial court abused its

discretion by denying his motion for new trial. Even though Robert did not

personally attend the trial, his lawyer appeared, announced ready, and

participated in the trial;9 Craddock therefore does not apply.10

      In his reply brief, Robert appears to argue that even if the Craddock rule

is not mandatory in this case, this court should nonetheless apply Craddock in




      6
          See id. §263.405(i).
      7
          D.W., 2008 WL 467328, at *12.
      8
      Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124,
126 (1939).
      9
       See Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509, 512
(1954); Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 297 (Tex.
App.—Fort Worth 2004, pet. dism’d) (“ A party who examines witnesses or
offers testimony has made a general appearance.”).
      10
      See LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989); In re K.C.,
88 S.W.3d 277, 279 (Tex. App.—San Antonio 2002, pet denied).

                                       3
determining whether the trial court abused its discretion because “Craddock

logically provides a guiding principle in this case,” and “the Craddock factors

are . . . relevant to the issue of whether the trial court abused its discretion.”

We reject Robert’s plea that we hold that a trial court abused its discretion

when it followed the law.

      Robert also argues that had he been at trial, he would have provided

relevant testimony concerning his involvement in J.J.’s life and J.J.’s best

interests, and he could have communicated with his lawyer concerning the

testimony of other witnesses.          He does not contend that his presence,

testimony, or participation at trial would have led to a different ultimate result;

he therefore has failed to show harm from the denial of his motion for new

trial.11 Accordingly, we overrule Robert’s third point.

      Having overruled all of Robert’s points, we affirm the trial court’s

termination order.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL B: DAUPHINOT, HOLMAN, and MCCOY, JJ.

DELIVERED: March 6, 2008


      11
           See T EX. R. A PP. P. 44.1(a).

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