
Opinion issued February 7, 2003
           
                       
              
                 
                      
                             





  






In The
Court of Appeals
For The
First District of Texas




NO. 01-01-00414-CV




IN THE INTEREST OF B.W., B.M., F.A., AND S.A., MINOR CHILDREN




On Appeal from the 306th District Court   
Galveston County, Texas
Trial Court Cause No. 00CP0008




O P I N I O N

          Appellant, Luzesta Marshall, is appealing a jury verdict that terminated her
parental rights as to three
 of her four children, and appointed the Texas Department
of Protective and Regulatory Services (TDPRS)
 as permanent managing conservator. 
In two points of error, Marshall claims the trial court (1) erred by not granting her
motion to dismiss and (2) abused its discretion by not granting her a mistrial after
TDPRS violated a pretrial motion in limine.  We affirm.
          Marshall does not challenge the sufficiency of the evidence to support the
jury’s findings.  Thus, the facts relevant for disposition of this appeal will be
discussed in support of each point of error.  
Section 263.401 of the Texas Family Code
          In her first point of error, Marshall claims the order terminating her parental
rights to B.M. should be reversed because the trial court rendered the final order after
the time allowed by section 263.401(a) of the Texas Family Code.  Tex. Fam. Code
Ann. § 263.401(a) (Vernon Supp. 2003).
          According to section 263.401(a), the trial court “shall dismiss” a suit filed by
the TDPRS “on the first Monday after the first anniversary of the date the court
rendered a temporary order appointing the department as temporary managing
conservator” unless the court has rendered a final order or granted an extension under
Subsection (b).  Tex. Fam. Code Ann. § 263.401(a).  
          The purpose of section 263.401(a) is to provide children with permanence and
stability in their lives and to prevent children from languishing indefinitely in foster
care.  See In re Neal, 4 S.W.3d 443, 447 (Tex. App.—Houston [1st Dist.] 1999, no
pet.); In re Bishop, 8 S.W.3d 412, 416 (Tex. App.—Waco 1999, orig. proceeding). 
The justice system has long recognized that “justice demands a speedy resolution of
child custody and support issues.”  In re Bishop, 8 S.W.3d at 416.  The Legislature,
by enacting section 263.401, intended to enact “a scheme . . . to ensure that children
would remain under the temporary care of [T]DPRS for no longer than one year.”  In
re Neal, 4 S.W.3d at 447; see also In re Bishop, 8 S.W.3d at 416.
          However, under section 263.401(b), the trial court is given the discretion to
extend the one-year dismissal date, up to 180 days, if the court finds that it is in best
interest of the child.  Tex. Fam. Code Ann. § 263.401(b) (Vernon 2002).  The trial
court is limited to granting only one extension, and once the extension period ends,
the trial court must “render a final order or dismiss the suit.”  Tex. Fam. Code Ann.
§ 263.401(c) (Vernon 2002).  In this case, the record indicates that on Sunday,
February 4, 2000, Judge Baker signed an order appointing the TDPRS as temporary
managing conservator of B.M.  On February 25, 2000, Marshall gave birth to her
twins, F.A. and S.A, and four days later, Judge Baker signed a second temporary
order, appointing the TDPRS as temporary managing conservator of the twins.  For
purposes of section 263.401(a), the twins’ statutory dismissal date was March 5,
2001, and B.M.’s statutory dismissal date was February 5, 2001.  Tex. Fam. Code
Ann. § 263.401(a).
          Marshall contends that because the trial court failed to render a final order, as
to B.M., before the February 5, 2001 deadline, the trial court erred by not granting her
motion to dismiss.  We disagree.
          From our review of the record, on February 15, 2000, the parties agreed to
continue B.M.’s case until February 29, 2000, in anticipation of Marshall giving birth
to her twins.  During a hearing on the 29th, the parties agreed to consolidate B.M.’s
case with the twins’ case, and also to reset the trial date from November 6, 2000 to
February 12, 2001, seven days after B.M.’s original statutory dismissal date.  By
agreeing to reset the trial date beyond B.M.’s original February 5, 2001 dismissal
date, we hold that appellant, in essence, agreed to, and the trial court granted, an
extension under section 263.401(b).  
          The trial began on February 12, 2001, and after hearing the evidence, the jury
decided to terminate Marshall’s parental rights.  We hold that because the trial judge
granted an extension before the expiration of B.M.’s original one-year dismissal date,
the trial judge was not required to dismiss the termination proceeding on February 5,
2001.
          Accordingly, we overrule Marshall’s first point of error.
Motion in Limine
          In her second point of error, Marshall claims the trial court erred by failing to
grant a mistrial after a State’s witness offered testimony in violation of a pre-trial
motion in limine.  Specifically, the trial court’s order precluded the State from making
“any reference to any suicidal attempts or ideations on behalf of LUZESTA
MARSHALL.”  
          During trial, Jackie Davis, a TDPRS investigator, testified as follows:
          PROSECUTOR:   Do you remember having a conversation with her
[Marshall] at some point after that?
 
          DAVIS:                 Yes, I did.
 
          PROSECUTOR:   And she was where when you had that conversation?
 
          DAVIS:                 She was at UTMB.
 
          PROSECUTOR:   Did she give you an explanation of where she had been
between the 3rd and the 7th?
 
          DAVIS:                 My memory is pretty vague, but I can go with what I
remember?
 
          PROSECUTOR:   Ok.  With what you remember?
 
          DAVIS:                 She said, I believe, that she - - she said that she had been at
the house where she was before.  And I honestly can’t
remember if she told me that she had been on the Texas
City bridge or the medical staff had told me that, that she
was considering suicide.
 
          After Davis’s comments regarding suicide, Marshall’s attorney asked to
approach the bench and requested a mistrial.  Marshall’s attorney argued that the
testimony was prejudicial and that a mistrial was appropriate because the State
violated the motion in limine. The trial court denied the request for mistrial.   
Marshall’s attorney did  not  request an instruction to disregard the testimony.  
          As a general rule, the failure to request the court to instruct the jury to disregard
the testimony results in waiver of the alleged error where the instruction would have
cured the error.  See, e.g., State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 (Tex.
1989) (holding failure to request court to instruct jury to disregard inadmissible
testimony waives error if instruction would have cured error); see also Houston
Lighting & Power Co. v. Reed, 365 S.W.2d 26, 31-32 (Tex. App.—Houston 1963,
writ ref’d n.r.e.) (same).  Such a request would have given the trial court an
opportunity to cure the alleged error.  Patir v. MFC Int’l. Corp., 60 S.W.3d 355, 357
(Tex. App.—Houston [1st Dist.] 2001, no pet.).   
          In this case, an instruction for the jury to disregard the statement would have
cured the alleged error.  Therefore, Marshall failed to preserve error.  See Evans, 774
S.W.2d at 658; see also Lohmann v. Lohmann, 62 S.W.3d 875, 882 (Tex. App.—El
Paso 2001, no pet.); Reed, 365 S.W.2d at 31-32.
          We overrule Marshall’s second point of error.
Conclusion
          We affirm the trial court’s judgment.




                                                                        Margaret Garner Mirabal

                                                                        Justice
 
Panel consists of Justices Hedges, Jennings, and Mirabal.
