




Affirmed and Memorandum Opinion filed January 15, 2009







Affirmed
and Memorandum Opinion filed January 15, 2009.
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-08-00471-CV
____________
 
IN THE INTEREST OF A.J.
 

 
On Appeal from the 313th District Court
Harris
County, Texas
Trial Court Cause
No. 2006-11025J
 

 
M E M O R
A N D U M   O P I N I O N
This
appeal is from a judgment signed May 20, 2008, terminating the parental rights
of Joe Robert Becerra to his daughter, A.J.  Appointed trial counsel timely
filed a Motion for New Trial and Statement of Appellate Points.  At the hearing
under section 263.405(d) of the Texas Family Code, the trial court found that
Becerra=s appeal is frivolous.  See
Tex. Fam. Code ' 263.405(d).  The reporter=s record from this hearing and the
clerk=s record have been filed.  Under
section 263.405(g), Becerra has appealed the trial court=s finding that his appeal of the
termination judgment is frivolous.  See Tex. Fam. Code ' 263.405(g).  Becerra has requested
this court to rule on his appeal of the trial court=s frivolousness finding and to find
section 263.405(d) of the Texas Family Code unconstitutional.  We deny Becerra=s motion and affirm the trial court=s judgment.  




The
trial court terminated Becerra=s rights based upon constructive abandonment.  See
Tex. Fam. Code ' 161.001(1)(N).  In his Motion for New Trial and Statement of
Appellate Points, Becerra identified the following issues: (1) the trial court
abused its discretion in denying his oral motion for continuance until his
criminal case, pending since June 2005, concluded; (2) mediation was not
ordered prior to trial; (3) Becerra=s paternity was established; (4)
legal and factual insufficiency of the evidence supporting the trial court=s finding that termination is in the
best interest of the child; and (5) proceeding to trial deprived Becerra of his
federal and state constitutional rights to due process and equal protection.
The
trial court conducted the required hearing.  See Tex. Fam. Code ' 263.405(d).  The Department argued
no substantial issues were raised by Becerra=s Motion for New Trial and Statement
of Appellate Points.  The trial court denied the motion for new trial and found
the appeal frivolous.
Though
Becerra has requested that this court rule on his appeal of the trial court=s frivolousness finding, Becerra has
not presented this court with any argument as to how any of the issues raised
in his Statement of Appellant Points present a substantial question for
review.  Becerra has not demonstrated that the trial court abused its
discretion in determining the appeal is frivolous.  See In the Interest of
A.F., 259 S.W.3d 303, 306-07 (Tex. App. B Beaumont 2008, no pet.).  




Becerra=s motion claims section 263.405(d) is
unconstitutional as applied in that it denies Becerra his right to appeal.  A
finding of frivolousness under section 263.405(d)(3) denies an appellant a
reporter=s record of the trial without costs,
not the right to appeal.  See Tex. Fam. Code ' 263.405(d)(3), (f), and Tex. Civ.
Prac. & Rem. Code ' 13.002(a).  The only authority Becerra cites is the
plurality opinion in Troxel v. Granville, 500 U.S. 57 (2000) (plurality
op.), for the proposition Athe parent-child relationship is one of a constitutional
magnitude.@  Becerra makes no argument supporting his claim.  Moreover, this issue
was not raised in Becerra=s Motion for New Trial and Statement of Appellate Points and
is therefore precluded from review.  See Tex. Fam. Code ' 263.405(i); see also In re S.K.A.,
236 S.W.3d 875 (Tex. App. B Texarkana 2007) pet. denied, 260 S.W.3d 463 (Tex.
2008).  Accordingly, we deny Becerra=s motion to find the statute
unconstitutional as applied to Becerra..
For
these reasons, Becerra has not shown that the trial court erred in ruling that
his appeal is frivolous.  Accordingly, we deny Becerra=s motion and affirm the trial court=s judgment.
 
PER
CURIAM
 
 
Panel consists of
Justices Frost, Brown, and Boyce. 

