author: ANNE GARDNER, Justice.

text:
    David DURAN, Appellant v. The STATE of Texas, State.
    No. 2-03-423-CR.
    Court of Appeals of Texas, Fort Worth.
    April 14, 2005.

      Hardy Burke, Joseph F. Zellmer, Den-ton, for Appellant.
    Bruce Isaacks, Crim. Dist. Atty., Kathleen Walsh, Catherine Luft, Lori Moraine, John R. Moore, Asst. Dist. Atty’s, Denton County Denton, for Appellee.
    Panel B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant was indicted for aggravated sexual assault and pleaded not guilty. Appellant was found guilty by a jury, which assessed punishment at confinement for life and a $10,000 fine. In four issues, Appellant argues that the trial court erred in finding that the outcry statement was reliable, in denying Appellant’s request for a limiting instruction prior to complainant’s mother testifying and in the jury charge regarding the complainant’s outcry statement, and in allowing a clinical psychologist to testify about facts learned from Appellant at a time when she was not licensed in Texas. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Because Appellant does not challenge the factual or legal sufficiency of the evidence, a brief recitation of the facts will suffice. Appellant was indicted for sexually assaulting his cousin, C.D., who was ten years old at the time. C.D.’s mother, Melissa, was established as the outcry witness because she was the first person C.D. told about the sexual assault. Melissa testified that Appellant is her husband’s nephew. Melissa stated that Appellant came to stay at their house for a weekend around June 1st of 2002. She stated that after Appellant left, C.D. began having emotional and behavioral problems. Melissa testified that around January 12th of 2003, C.D. told her she wanted to talk about the problems she had been having. Melissa stated that during this conversation C.D. told her that Appellant had raped her during the weekend that he stayed at their house.

C.D. testified at trial that on one of the mornings of the weekend Appellant stayed at their house, she went downstairs to watch cartoons. Although C.D. could not specifically remember if this occurred on Sunday morning, Melissa testified that it did occur on Sunday morning. C.D. stated that Appellant was asleep on the couch and when she turned on the television he woke up. C.D. testified that Appellant said something to her that scared her; however, she could not remember what. She said that she got up and tried to run upstairs, but Appellant grabbed her by her ankles and took her into the downstairs bathroom and locked the door. She testified that Appellant laid her down on the bathroom floor, pulled her pants down, and “stuck his private in me.” She said that he then picked her up and put her over the bathroom sink and “tried to from behind.” She also stated that during this time he was covering her mouth. She testified that “[i]t hurt a lot” and she was crying. She further stated that she “felt some wet stuff” and he pulled up his pants, warned her not to tell anyone, and left.

At the conclusion of trial, the jury found Appellant guilty of aggravated sexual assault and assessed his punishment at confinement for life and a $10,000 fine.

OUTCRY STATEMENT

The trial court conducted a hearing outside the presence of the jury to consider the admissibility of the outcry statement according to Texas Code of Criminal Procedure article 38.072. See Tex.Code Crim. Proc. Ann. art. 38.072 (Vernon Supp.2004-05). C.D.’s mother testified at the hearing regarding the statements that she provided to law enforcement after C.D. told her she had been raped. At the close of C.D.’s mother’s testimony, the court instructed Appellant’s counsel to make any objections that he had. Firstly, Appellant’s counsel requested that the trial court make a finding that the outcry statement was not an excited utterance. Secondly, Appellant’s counsel requested a limiting instruction to the jury regarding “any details of the statement made by the child to the mother.” Finally, Appellant’s counsel requested a jury instruction that Appellant could not be convicted by the outcry statement alone. The trial court overruled Appellant’s counsel’s objections, but informed him that he could make his request for a limiting instruction when the jury charge was prepared. The trial court ruled that the outcry statement was reliable based upon the time, content, and circumstances of the statement.

In his first point, Appellant argues that the trial court erred in finding that the statement made by C.D. to her mother was reliable based upon the time, content, and circumstances of the statement. Appellant specifically argues, “In the long run, the daughter’s statement to her mother may have been reliable. However, the mother’s ability to recount that statement is not reliable and she should not have been allowed to testify before the jury in regard to that statement.” Consequently, it appears Appellant is attempting to challenge the reliability of the outcry statement by challenging the reliability of the mother in recounting the statement. The State argues that Appellant has waived this point because his objection at trial differs from the complaint he raises on appeal. We agree.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex.R.App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004). Preservation of error is a systemic requirement that this court should review on its own motion. Martinez v. State, 22 S.W.3d 504, 507 n. 7 (Tex.Crim.App.2000); Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App.1993) (op. on reh’g), cert. denied, 511 U.S. 1152, 114 S.Ct. 2184, 128 L.Ed.2d 902 (1994). The complaint made on appeal must comport with the complaint made in the trial court, or the error is forfeited. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990).

Appellant’s counsel did not object to the outcry statement or to the mother testifying to that statement on the basis of reliability. As pointed out, he only requested that the trial court “make a finding that this is not an excited utterance.” Therefore, Appellant cannot now bring a complaint that the outcry statement was unreliable, as he has failed to preserve error. Accordingly, we overrule Appellant’s first point.

LIMITING INSTRUCTION

In points two and three, Appellant argues that the trial court erred in denying his request for a limiting instruction both prior to C.D.’s mother’s testimony and in the jury charge in regard to the outcry statement. Appellant contends that “[t]he mother’s statement was so unreliable that the [A]ppellant was entitled to a limiting instruction to ‘limit the jury’s consideration of the outcry to show the outcry was made and the basic nature of the complaint.’ ” Although somewhat unclear, Appellant’s argument seems to be that because C.D.’s mother could not reliably recount the statement, the statutory requirements of article 38.072 were not met and therefore the mother’s testimony of the outcry statement could not be admitted for the truth of the matter asserted. However, as we held above, Appellant failed to preserve any potential error regarding the reliability of the outcry statement. Furthermore, in requesting a limiting instruction, Appellant’s counsel stated, “What I believe is admissible is that the statement was made, and unless it’s an excited utterance, the details of the alleged offense are not admissible, and I object to that.” Thus, the record shows that Appellant’s counsel incorrectly believed that unless the statement was an excited utterance, the details of the offense in the statement were inadmissible.

Article 38.072 of the Texas Code of Criminal Procedure applies in a criminal proceeding for an assaultive offense committed against a child twelve years old or younger and provides in relevant part:

Sec. 2. (a) This article applies only to statements that describe the alleged offense that:
(1) were made by the child against whom the offense was allegedly committed; and
(2) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.
(b) A statement that meets the requirements of Subsection (a) of this article is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and
(3)the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.

Tex.Code Crim. PROC. Ann. art. 38.072.

The record shows that the State complied with article 38.072 by providing Appellant’s counsel in July of 2003 with the name of the outcry witness and a written summary of the statement. Additionally, the trial court conducted a hearing outside the presence of the jury and made a finding that the outcry statement was reliable, and C.D. did testify at trial. Therefore, the requirements of article 38.072 were satisfied.

Under article 38.072, both by the terms of the statute and by the legislative history, outcry testimony admitted in compliance with article 38.072 is admitted as an exception to the hearsay rule, meaning it is considered substantive evidence, admissible for the truth of the matter asserted in the testimony. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991); Carty v. State, No. 01-03-01266-CR, 01-03-01267-CR, 2004 WL 2538297, at *3,-S.W.3d -, at - (Tex.App.-Houston [1st Dist.] Nov. 10, 2004, no pet.). A court’s decision that the outcry statement is reliable and admissible under article 38.072 will not be disturbed absent a clear abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App.1990); Carty, 2004 WL 2538297, at *5, at-.

As the statutory requirements were properly complied with and the issue of the reliability of the statement has not been preserved, the trial court did not abuse its discretion in admitting the outcry statement under article 38.072. Because the statement was properly admitted under article 38.072, it was admissible as substantive evidence. Accordingly, Appellant was not entitled to a limiting instruction. See Fetterolf v. State, 782 S.W.2d 927, 931 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd) (holding that appellant’s request for a limiting instruction was inapplicable when outcry statement was properly admitted into evidence under article 38.072). Thus, we overrule Appellant’s second and third points.

EXPERT WITNESS

In his fourth point, Appellant argues that the trial court erred in allowing State’s -witness Pamela Kirby, a licensed clinical psychologist at the time of trial, to testify during the punishment phase about facts she learned from Appellant during counseling sessions at a time that she was not licensed in Texas.

Kirby testified that she graduated from the doctoral psychology program at Biola University in 1995. She then completed an internship at Napa State Hospital where she worked with “patients who were not guilty by reason of insanity for various crimes.” Kirby stated she moved to Amarillo where she worked with sex offenders and this was when she first began counseling Appellant. Kirby testified that she was “licensed professionally” after passing a written exam in April 1998 and became fully licensed after passing an oral exam in the summer of 1998.

Kirby testified that she worked with Appellant in a group therapy program from September 1997 through January 1998. She then worked with him in individual therapy from February 1998 through July 1998. Kirby testified generally about her counseling with Appellant and gave her opinion of Appellant after counseling him. Appellant objected to Kirby testifying regarding her counseling with Appellant “during the period of time she was not licensed in the State of Texas.”

The qualifications of a witness to testify as an expert witness are within the trial court’s discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App.2000); Harnett v. State, 38 S.W.3d 650, 657 (Tex.App.-Austin 2000, pet. ref'd). A trial court’s decision to permit a witness to testify as an expert will not be disturbed on appeal absent a showing of a clear abuse of discretion. Wyatt, 23 S.W.3d at 27; Harnett, 38 S.W.3d at 657.

Rule 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702. No rigid formula exists for determining whether a particular witness is qualified to testify as an expert. Harnett, 38 S.W.3d at 658. The rule itself provides that the requisite expertise may be acquired through knowledge, skill, experience, training, or education. Id. “It is almost impossible to lay down any definite guidelines for determining knowledge, skill or experience required in a particular case or of a particular witness.” Id. (quoting Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex.App.-Corpus Christi 1983, writ refd n.r.e.)). Contrary to Appellant’s contention, licensure, or certification in the particular discipline is not a per se requirement. Id. at 659; see Gregory v. State, 56 S.W.3d 164, 179-80 (Tex.App.-Houston [14th Dist.] 2001, pet. dism’d) (stating that a medical license or degree is not the litmus test for qualification as an expert witness), cert. denied, 538 U.S. 978, 123 S.Ct. 1787, 155 L.Ed.2d 667 (2003); see also Wyatt, 23 S.W.3d at 27-28 (holding that trial court did not abuse its discretion in allowing witness to testify as an expert, even though she was not licensed).

Therefore, we hold that based on Pamela Kirby’s education and experience, the trial court did not abuse its discretion in allowing her to testify at the punishment phase of Appellant’s trial. Thus, Appellant’s fourth point is overruled.

CONCLUSION

Having overruled all of Appellant’s points, we affirm the trial court’s judgment.

      . In challenging the mother’s reliability, Appellant’s reliance on Texas Code of Criminal Procedure article 38.072 is misplaced. The reliability specifically referred to in article 38.072 is the reliability of the declaration, not the witness. Holland v. State, 770 S.W.2d 56, 59 (Tex.App.-Austin 1989), aff'd, 802 S.W.2d 696 (Tex.Crim.App.1991); see Tex.Code Crim. Proc. Ann. art. 38.072.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice.

license: Public Domain

text:
    Barbara WRIGHT, Appellant, v. Guillermo PINO, M.D., Michael Sheen, M.D., and James Douglas Hodde, M.D., Appellees.
    No. 2-03-331-CV.
    Court of Appeals of Texas, Fort Worth.
    April 14, 2005.

      M. Kevin Queenan, Britta J. Gordon, DeSoto, for Appellant.
    Chamblee & Ryan, P.C., M. Todd Allen, Dallas, for Appellee Pino.
    Diane K. Shaw, Dallas, for Appellee Hodde.
    PANEL B: LIVINGSTON, HOLMAN, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant Barbara Wright was injured in an automobile accident and sought medical treatment for her injuries from appel-lees, among others. On June 23, 2003 the trial court granted appellee James Douglas Hodde, M.D.’s motion to dismiss appellant’s claims against him based upon in-sufficiencies in her article 4590i medical expert report. Both before and after dismissal, Hodde requested the trial court to grant him an award of attorney’s fees in accordance with article 4590i, section 13.01(a). On August 21, 2003 the trial court granted Hodde attorney’s fees of $10,730.62. The remainder of appellant’s claims against appellees Guillermo Pino, M.D. and Michael Sheen, M.D. proceeded to a jury trial in which the jury found against appellant. However, the trial court awarded Pino $5,074.39 in court costs in accordance with rule of procedure 131 and statutory authority.

In this appeal appellant challenges the attorney’s fees awarded to Hodde and the costs awarded to Pino. Appellant makes no challenges to the judgment against her in Sheen’s favor. We reverse the award of attorney’s fees to Hodde and render judgment that Hodde take nothing on his attorney’s fees claim, we modify the costs award to Pino, and affirm the judgment as modified.

Issues on Appeal

In her first point appellant claims the trial court erred in awarding some of the costs against her in Pino’s favor because she claims they are not taxable costs. In her second point she contends the trial court erred in awarding Hodde attorney’s fees in a suit to which he was no longer a party at the time of the award. In her third point appellant also asserts a no-evidence challenge to the attorney’s fees awarded to Hodde.

Challenge to Taxable Costs Awarded to Pino

In appellant’s first point she challenges the award of taxable court costs to Pino. Appellant claims several cost items were awarded to Pino that are not authorized as costs. In connection with those costs, appellant quite simply points to particular items that are not technically taxable costs as defined under the rules of procedure or the civil practices and remedies code. See Tex. Civ. PRac. & Rem.Code Ann. § 31.007(b); Tex.R. Civ. P. 131. Appellant claims the trial court abused its discretion in awarding some of these costs.

A successful party is entitled to recover from its adversary all of its taxable costs incurred in the prosecution or defense of the suit. TexR. Civ. P. 131. Under the civil practice and remedies code a party may recover fees of the clerk and services fees due to the court, court reporter fees for the original of stenographic transcripts, and such other costs and fees permitted to be awarded by other rules and statutes. Tex. Civ. Piiac. & Rem.Code Ann. § 31.007(b). Pino concedes that $225.71 was incorrectly awarded to him but contends the remaining costs were proper.

Costs, within the meaning of Rules 125 through 149 of the Rules of Civil Procedure, are those items in the clerk’s bill of costs. In response to a request for an award of costs, the court’s role is to determine which party or parties is to bear the costs of court, not to adjudicate the correctness of specific items. The inclusion of specific items taxed as costs is a ministerial duty performed by the clerk. Correction of errors in specific items of costs is sought by a motion to retax costs.

Pitts v. Dallas County Bail Bond Bd., 23 S.W.3d 407, 417 (Tex.App.-Amarillo 2000, pet. denied) (op. on reh’g) (citations omitted) (emphasis added), cert. denied, 531 U.S. 1151, 121 S.Ct. 1094, 148 L.Ed.2d 967 (2001).

In order to preserve a complaint on appeal, one must preserve the error by bringing it to the trial court’s attention, or it is waived. Tex.R.App. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh’g). And under Pitts we know that errors in specific items should be corrected by a motion to retax costs. Pitts, 23 S.W.3d at 417. Because appellant filed no motion to modify or retax those costs, she cannot complain for the first time on appeal that the court erred in awarding some of those costs. However, because appellee Pino agrees that the award for costs erroneously included $225.71 in charges, we modify the award of taxable costs by that amount to a total of $4,848.68. Otherwise, appellant’s first point is overruled.

Appellant has also filed a motion to strike in connection with assertions made by appellee Pino in his brief that are unsupported by the record as well as to strike evidence Pino has attempted to file or add to the appellate record in this court. While that motion raises important concerns regarding briefing and what constitutes the appellate record, our disposition of appellant’s point regarding costs awarded to Pino makes the motion moot. Appellant’s motion to strike is therefore denied as moot.

Attorney’s Pee Award in Hodde’s Favor

In appellant’s second point, she claims that appellee Hodde was not entitled to an award for attorney’s fees because his motion was filed under the wrong cause number. Appellant argues that because the original summary judgment granted in Hodde’s favor was severed from this action and became final and appealable, and because her claim against Hodde was never reconsolidated with the remaining cause number after remand, Hodde is precluded from recovering his attorney’s fees.

In June 1999 the trial court granted appellee Hodde a motion to sever the cause of action against him from the remaining claims once he received a favorable summary judgment. The case against Hodde was given a new cause number, 149-833-B1. In an appeal of the judgment in favor of appellee Hodde only, this court reversed that summary judgment and remanded the cause to the trial court. Wright v. Hodde, No. 02-99-00225-CV (Tex.App.-Fort Worth May 18, 2000, no pet.) (not designated for publication). After appellant’s claims against Hodde were once again denied, Hodde sought and obtained a judgment against appellant for $10,730.62 in attorney’s fees under article 4590L Appellant claims Hodde never re-consolidated her case against him (149-833-B1) with the underlying litigation in this cause number against the remaining other defendants (149-833-B) after the remand.

A review of the clerk’s record, however, shows that Hodde’s motion for attorney’s fees, his amended motion for attorney’s fees, and his motion to dismiss were all filed under cause number 149-833-B, the present trial court cause number. Further, the trial court’s order granting Hod-de a dismissal as well as its subsequent order granting him attorney’s fees were' all signed and entered under cause number 149-833-B. Thus, the record before us is not as represented in appellant’s brief and shows that all of Hodde’s motions were filed in the present cause and that all the trial court orders on Hodde’s dismissal and attorney’s fees after remand were signed in this cause number. Further, the record does not disclose nor does appellant claim that she ever objected to Hodde’s filing of his motion to dismiss, his motion for attorney’s fees, or his amended motion for attorney’s fees in this cause number.

The only complaint appellant made at the hearing on Hodde’s motion for attorney’s fees was that Hodde was not a party to the pending case and that case had already been dismissed and was therefore final. In other words, appellant complained of two things: that the trial court had no jurisdiction to hear Hodde’s claim for attorney’s fees in cause number 149-8B3-B because he was no longer in the pending suit and that because the suit against Hodde was final his request for attorney’s fees was too late because the trial court’s plenary jurisdiction had expired. However, appellant mistakenly assumed the dismissal and the pending attorney’s fees motions were filed under a different cause number when they were all actually filed and granted in the same cause number, cause number 149-833-B, the cause pending before the trial court and now here on appeal.

As discussed above, in order to preserve a complaint on appeal, one must preserve the error by bringing it to the trial court’s attention, or it is waived. Tex.R.App. P. 33.1(a); Bushell, 803 S.W.2d at 712. Appellant never objected that the dismissal motion or the motion for attorney’s fees were filed in the wrong cause number. She complained that appellee Hodde was no longer a party to the pending action. She never complained of his right to file either motion in this cause number. Thus, any objection to the award of attorney’s fees because it was filed in the wrong case was waived by appellant.

Additionally, appellant’s complaint about the trial court’s granting the attorney’s fees award beyond its plenary jurisdiction is not supported by the record. The record shows Hodde’s dismissal was orally granted on March 11, 2003, but the order granting it was not signed until June 23, 2003. Hodde filed his motion for attorney’s fees before the dismissal order was signed. Hodde filed his original motion for attorney’s fees on June 9, 2003, and his amended motion for attorney’s fees on July 22, 2003. The trial court heard and granted the amended motion for attorney’s fees on August 21, 2003.

A trial court’s plenary jurisdiction extends until thirty days after a judgment is signed. Tex.R. Civ. P. 329b(d). Within that time period a court may vacate, modify, correct, or reform its judgment. Id.

The date [a] judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court’s plenary power to grant a new trial ... but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose.

Tex.R. Civ. P. 306a(1) (emphasis added); Coinmach, Inc. v. Aspenwood Apt. Corp., 98 S.W.3d 377, 379 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Since the Hodde dismissal was granted under cause number 149-833-B, the dismissal as to Hodde was a mere interlocutory judgment. A judgment is final when “it actually disposes of every pending claim and party or ... it clearly and unequivocally states that it finally disposes of all claims and all parties.” Panatrol Corp. v. Emerson Elec. Co., 147 S.W.3d 518, 520-21 (Tex.App.-San Antonio 2004, no pet.) (op. on reh’g) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001)). Until the claims against the remaining defendants were resolved, it remained an interlocutory judgment and was therefore not final and could have been modified until the remaining claims had been litigated. Because the judgment as to the remaining defendants was not signed until October 10, 2003 the trial court had jurisdiction to sign the Hodde attorney fee award on August 21, 2003. Appellant’s second point is overruled!

In appellant’s third point, she challenges the sufficiency of the evidence to support the award of attorney’s fees to Hodde. She contends Hodde failed to present evidence of several elements necessary to support an award of attorney’s fees. Citing the Arthur Andersen opinion, she contends there is no evidence to support a showing of the experience, reputation, and ability of counsel; the nature and extent of the relationship with the client; the nature and extent of the legal services provided; the novelty and difficulty of the questions presented; and the time limitations involved. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex.1997). Further, she contends that there was no evidence showing that the rates Hodde was charged were reasonable and customary for Wichita County.

A no-evidence point may be sustained when the record discloses a complete absence of evidence of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999). Further, when we sustain a no-evidence point it is our duty to render the judgment the trial court should have rendered. See Tex.R.App. P. 43.3; Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex.1986); Atlas Copco Tools, Inc. v. Air Power Tool & Hoist, Inc., 131 S.W.3d 203, 209 (Tex.App.-Fort Worth, 2004, pet. denied).

The only evidence in support of the attorney’s fees award mentioned in the entire appellate record is an affidavit that Hodde’s counsel references in the hearing on attorney’s fees and that is listed in appellant’s designation of items to be included in the clerk’s record. However, that affidavit was not attached to Hodde’s amended motion and was never offered into evidence. Therefore, there is no evidence in the record to support the award, and appellant’s third point is sustained.

Conclusion

As modified to $4,848.68, the award of taxable costs to Pino is affirmed. We reverse the award of attorney’s fees to Hodde and render a take-nothing judgment in favor of appellant on Hodde’s claim for attorney’s fees. In all other respects, the judgment in appellees’ favor is affirmed.

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 987 (repealed 2003) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6) (Vernon Supp.2004-05)).

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(a), 1995 Tex. Gen. Laws 985, 985 (repealed 2003) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2004-05)).

      . See Tex. Civ. Prac. & Rem. Code Ann. § 31.007(b) (Vernon 1997); Tex. R. Civ. P. 131.

      . Although appellant characterizes her complaint as one of subject matter jurisdiction, which may be brought for the first time on appeal, it is in reality a procedural complaint, which is subject to waiver. The trial court clearly had jurisdiction over the subject matter of Hodde’s claim as it could have been filed in the original suit before it was severed.

      . We have reviewed the entire appellate record and have not located this affidavit. Additionally, our clerk’s office confirmed with the trial court clerk that there is no such affidavit in the appellate record.


author: RICHARD BARAJAS, Chief Justice.

text:
    Charlotte R. WILBORN, Individually and as the Administratrix of the Estate of Edward E. Wilborn, Deceased, Ede R. Wilborn, Ja’Mille Williams Wilborn, and Esther O. Morris, Appellants, v. GE MARQUETTE MEDICAL SYSTEMS, INC. and Marquette Electronics, Inc., Appellees.
    No. 08-03-00370-CV.
    Court of Appeals of Texas, El Paso.
    April 14, 2005.
    Rehearing Overruled May 11, 2005.

      Jose Montes, Jr., Jose Montes, Jr., P.C., El Paso, for appellants.
    Kurt H. Kuhn, Brown McCarroll, L.L.P., Austin, Karen L. Landinger, Ray, Valdez, McChristian & Jeans, P.C., El Paso, for appellees.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the denial of a continuance of a hearing on Motions for Summary Judgment filed by Appellees and the corresponding granting of the Motions for Summary Judgment. For the reasons stated, we affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

Appellants filed a lawsuit against multiple defendants arising out of an accident that occurred on April 6, 1998 that resulted in the death of Edward Wilborn. Edward Wilborn was electrocuted while performing duties in the course and scope of his employment. Appellants sued various Defendants for various claims related to the incident and Appellees for claims related to allegations that a defibrillator used on Edward Wilborn was defective. At the time that Appellants filed their Original Petition, June 9, 1999, they were represented by two attorneys, Jose Montes, Jr. and Michael D. Volk.

Two subsequent petitions were filed, and were entitled Appellant’s First Amended Original Petition and Second Amended Original Petition, respectively. Each reflected that Appellants were represented by both Mr. Montes and Mr. Volk. A Third Amended Original Petition was filed on April 6, 2000 which was signed only by Mr. Jose Montes, Jr. The appellate record reveals that the case remained pending for several years and included one abatement of the case due to the filing of bankruptcy by one of the Defendants.

On March 25, 2003, Michael D. Volk filed a Motion to Withdraw as attorney of record notifying the court that “there has been a breakdown in cooperation and communication with counsel in the handling of their case.” The trial court signed the Order allowing for the withdrawal of Mr. Volk on April 9, 2003. Mr. Montes remained the attorney of record and Mr. Volk’s motion specifically informs the court that Mr. Montes “will remain as counsel.” The motion also includes a paragraph referencing various pending deadlines, including notice that all dispositive motions were to be filed by May 8, 2003 and a trial setting of June 23, 2003. On April 17, 2003, Appellees filed two Motions for Summary Judgment, a traditional motion and a “no evidence” motion, setting both for hearing on May 8, 2003. On April 30, 2003, Appellants filed a Motion for Continuance of the dispositive motions hearing, contending that at the April 9, 2003 hearing on the Motion to Withdraw, the trial court allowed Appellants thirty days, until May 9, 2003, to obtain new counsel to represent them in pursuing their claims against Appellees. We note for the record that neither the Motion for Continuance nor the Order denying same are included in the clerk’s record though Appellants attach a copy of the motion in the appendix to their brief. The Motion for Continuance was apparently considered at the dis-positive motions hearing held May 8, 2003 and denied. At that hearing, the trial court judge orally denied Appellant’s motion but indicated that he would consider the pending motions for summary judgment “under submission” and would rule on them after the May 9, 2003 deadline. We also note that the Order allowing the withdrawal of Mr. Volk makes no reference to allowing Appellants any time limit to retain new counsel. The matter appears to have been discussed at the April 9, 2003 hearing, but any order or agreement was never reduced to writing and a transcript of that hearing is not included in the appellate record. The trial court granted the motions for summary judgment and severance of the case on May 12, 2003.

Appellants filed a Motion for New Trial and Notice of Appeal. Appellants have raised one issue, complaining that the “trial court erred in denying Appellant’s Motion for Continuance because the time period to secure new counsel had not yet expired prior to the trial court’s granting of Appellee’s ... Motion for Summary Judgment.”

II. DISCUSSION OF ISSUE

In their sole complaint, Appellants assert that the trial court abused its discretion in denying Appellants’ Motion for Continuance of the summary judgment hearings. We note that Appellants’ brief appears to include a complaint about the “granting of Appellee’s ... Motion for Summary Judgment” in a brief reference contained in its preliminary statement of the case. We also note for the record that Appellants do not brief the issue regarding the granting of the summary judgments and do not reference it in the body of the brief. Because Appellants do not argue or brief the issue, and do not cite any authority or make any references to the record, we consider that issue waived. Tex.R.App. P. 38.1(h).

A. Standard of Review-Abuse of Discretion

The granting or denial of a motion for continuance is within the trial court’s sound discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); State v. Crank, 666 S.W.2d 91, 94 (Tex.1984); Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1964). The trial court’s action will not be disturbed unless the record discloses a clear abuse of discretion. When the ground for the continuance is the withdrawal of counsel, movants must show that the failure to be represented at trial was not due to their own fault or negligence. Villegas, 711 S.W.2d at 626; Crank, 666 S.W.2d at 94. Generally, when movants fail to comply with Tex.R. Civ. P. 251’s requirement that the motion for continuance be “supported by affidavit,” we presume that the trial court did not abuse its discretion in denying the motion. Villegas, 711 S.W.2d at 626; Garcia v. Tex. Emp. Ins. Ass'n 622 S.W.2d 626, 630 (Tex.App.-Amarillo 1981, writ ref'd n.r.e.). The right to counsel is a valuable right; its unwarranted denial is reversible error. Villegas, 711 S.W.2d at 626; see Crank, 666 S.W.2d at 94; Stefanov v. Ceips, 395 S.W.2d 663, 665 (Tex.Civ.App.-Amarillo 1965, no writ). Therefore, when a trial court allows an attorney to voluntarily withdraw, it must give the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial. Villegas, 711 S.W.2d at 626; Lowe v. City of Arlington, 453 S.W.2d 379, 382 (Tex.Civ.App.-Fort Worth 1970, writ ref'd n.r.e.); Stefanov, 395 S.W.2d at 665; Leija v. Concha, 39 S.W.2d 948, 950 (Tex.Civ.App.-El Paso 1931, no writ). See Robinson v. Risinger, 548 S.W.2d 762 (Tex.Civ.App.-Tyler 1977, writ ref'd n.r.e.). Before a trial court allows an attorney to withdraw, it should see that the attorney has complied with the Code of Professional Responsibility: [A] lawyer should not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules. Supreme Court of Texas, Rules Governing the State Bar of Texas art. XII, § 8 (Code of Professional Responsibility) DR 2-110(A)(2); Villegas, 711 S.W.2d at 626; Smith v. State, 490 S.W.2d 902, 909-10 (Tex.Civ.App.-Corpus Christi 1972, writ ref'd n.r.e.).

B. Discussion

On appeal, Appellants argue that the court abused its discretion in failing to grant them a continuance for the purpose of obtaining different counsel in this matter. We note that since the filing of the Original Petition in this matter, Mr. Montes was, at all times, counsel of record and was an active participant in the prosecution of this litigation. The April 9, 2003 Order allowing the withdrawal of Michael Volk as attorney of record states that Jose Montes Jr. will remain as counsel for the Appellants. There are no written orders included in the appellate record that document any agreement to allow Mr. Montes to withdraw from representation. We also note that at no time were Appellants without representation by competent legal counsel who had intimate familiarity with the case.

Whether or not to grant a continuance based upon the absence of counsel is a question for the trial court’s discretion. Tex.R. Civ. P. 253. The test for determining whether a trial court abuses its discretion is whether it acted without reference to any guiding rules or principles. Waste Water, Inc. v. Alpha Finishing & Developing Corp., 874 S.W.2d 940, 942 (Tex.App.-Houston [14th Dist.] 1994, no pet.); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Comm’n App.—1939, opinion adopted). In other words, the trial court abuses its discretion when it acts in an arbitrary or unreasonable manner. Waste Water, Inc., 874 S.W.2d at 942.

Furthermore, we note that in cases where a trial judge’s discretion comes into play, such as in his decision to dismiss a case for want of prosecution, it has long been the rule that the judge may take into account the entire procedural history of the case. Waste Water, Inc., 874 S.W.2d at 942; Sustala v. El-Romman, 712 S.W.2d 164, 166 (Tex.App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.) (court may consider entire history of case, including past lack of diligence, when deciding whether to dismiss for want of prosecution). We agree with the Houston Court of Appeals and see no reason why a trial judge should not be permitted to consider the entire history of the case in deciding whether or not good cause exists for granting a continuance. Waste Water, Inc., 874 S.W.2d at 942.

Further, because the motion was not supported by affidavit, we presume that the trial court did not abuse its discretion in denying the motion. Id.; see also Villegas, 711 S.W.2d at 626.

State v. Crank, 666 S.W.2d 91 (Tex.), cert. denied, 469 U.S. 833, 105 S.Ct. 124, 83 L.Ed.2d 66 (1984) provides guidance when evaluating a motion for continuance based upon the absence of counsel. In Crank, the Supreme Court held that where the absence of counsel has been urged as grounds for a continuance, the movant must demonstrate that the failure to be represented at trial was not due to his own fault or negligence. Id. at 94. We recognize that Crank, though helpful, is distinguishable from the case at bar because Crank was initially applied only to cases where counsel was discharged prior to tidal. In fact, the court expressly stated, “We first note this is not a case where the party’s counsel voluntarily withdrew, nor one where a party, because of an emergency, was left without legal representation.” Id. at 94. It is the movant’s conduct in discharging counsel, as related to his diligence in prosecuting or defending a suit, that determines whether good cause exists for granting a continuance. Id.

Crank presented the unusual situation where the defendant had already received two continuances and suddenly announced the morning of trial that he and his counsel had reached “philosophical differences” and, in open court, discharged counsel. Absence of counsel was due entirely to the defendant’s action. Based on those facts, the Supreme Court found no abuse in discretion in denying Dr. Crank’s motion for continuance. Id. at 95.

In Villegas v. Carter, 711 S.W.2d 624 (Tex.1986), the Texas Supreme Court expanded the Crank test to include cases where counsel voluntarily withdrew, and the movant did not have time to procure new counsel. In Villegas, the court first reiterated in no uncertain terms that the granting or denial of a motion for continuance is within the sound discretion of the trial court. Id. at 626. The court further expanded its holding in Crank by stating that when withdrawal of counsel is the ground for continuance, the movant must show that failure to be represented by counsel at trial was not due to his own fault or negligence. In Villegas, the mov-ant’s attorney withdrew two days prior to trial and refused to turn over to the movant files relating to his defense. The trial court refused to grant a continuance. Under these circumstances, the Supreme Court held that the movant was not at fault or negligent in failing to be represented at trial. The court concluded that the trial court had abused its discretion in denying the continuance. Id. at 626.

Several other cases have addressed a trial court’s failure to grant a motion for continuance based on the absence of counsel, they are helpful in our analysis and were cited with favor by the Crank court. The Crank court cited Strode v. Silverman, 217 S.W.2d 454 (Tex.Civ.App.-Waco 1949, writ ref'd), and Counts v. Counts, 358 S.W.2d 192 (Tex.Civ.App.-Austin 1962, writ dism’d w.o.j.); appeal dismissed, 373 U.S. 543, 83 S.Ct. 1549, 10 L.Ed.2d 688 (1963), both dealing with the trial court’s failure to grant a new trial based upon absence of counsel. Counts is particularly relevant to our analysis because that court specifically stated: “The failure of an attorney to perform the services for which he was employed, or his absence on the date set for trial or lack of diligence by a litigant in securing an attorney to represent him, or where a litigant fails to take steps to procure another attorney although advised that his counsel has withdrawn from the case, does not excuse such litigant’s failure to take steps to see that he was properly represented at the trial.” Counts, 358 S.W.2d at 200.

The Crank court also relied upon Van Sickle v. Stroud, 467 S.W.2d 509 (Tex.Civ.App.-Fort Worth 1971, no writ). Van Sickle clearly states that absence of counsel is a ground for continuance only upon a showing of diligence and lack of fault by the complaining party. Id. at 511. Here, even if taking Appellants assertion that they had attempted to obtain other counsel but were not able to do so as true, we note that they appeared at the May 8, 2003 hearing represented by their attorney of record who participated in those proceedings. At no time were they unrepresented by counsel. Thus, we believe our holding is consistent with the analysis established by Crank and Villegas.

We note that the Houston Court of Appeals has also rendered decisions consistent with our position. In Dell Development Corp. v. Best Indus. Uniform Supply Co., Inc., 743 S.W.2d 302 (Tex.App.-Houston [14th Dist.] 1987, writ denied) and Gendebien v. Gendebien, 668 S.W.2d 905 (Tex.App.-Houston [14th Dist.] 1984, no writ), the Houston court affirmed the denial of a motion for continuance despite the absence of the party’s attorney. In Dell, the corporation’s only explanation for failing to secure counsel to represent it at trial was that an officer, who was not a licensed attorney, believed that he could represent the corporation without the assistance of an attorney. Dell Development Corp., 743 S.W.2d at 303. In Gendebien, the movant had not engaged a new attorney to represent him despite withdrawal of his counsel one month before. Gendebien, 668 S.W.2d at 908. Both of these holdings are consistent with the rules enunciated in Crank and Counts and recognize the culpability of the moving party. Waste Water, Inc., 874 S.W.2d at 942.

Here, it is clear from the record that even if Appellants had been actively seeking another attorney to represent them, their current counsel was certainly capable of providing representation until such time as new counsel assumed responsibility for the case. At the motion’s hearing on May 8, 2003, the trial court inquired of Mrs. Wilborn whether she had obtained a new attorney. She responded that “And I have been trying to ascertain an attorney. At this point in time, because of the time period, I’m having difficulties in town and my daughter is presently checking out of town for me.” In short, they at no time, were not represented by able counsel. Further, we note that the Motion for Continuance did not contain any affidavits supporting the basis for a continuance of the hearings as required by Tex.R. Civ. P. 251. The motion as filed provides support for the presumption that the trial court did not abuse its discretion in denying the continuance. Accordingly, after examining the record, we hold that the trial judge did not clearly abuse his discretion when he denied Appellants’ Motion for Continuance. We therefore overrule Appellants’ sole issue.

Having overruled Appellants’ sole issue on review, we affirm the judgment of the trial court.


text:
    Charlotte R. WILBORN, Individually and as the Administratrix of the Estate of Edward E. Wilborn, Deceased, Ede R. Wilborn, Ja’Mille Williams Wilborn, and Esther O. Morris, Appellants, v. LIFE AMBULANCE SERVICES, INC., Appellee.
    No. 08-03-00389-CV.
    Court of Appeals of Texas, El Paso.
    April 14, 2005.
    Rehearing Overruled May 11, 2005.

      Jose Montes, Jr., P.C., El Paso, for Appellants.
    Karen L. Landinger, Ray, Valdez, McChristian & Jeans, P.C., El Paso, Gaye Lynn Rothman, Brown McCarroll Oaks Hartline LLP, Austin, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the denial of a continuance of a hearing on Motions for Summary Judgment filed by Appellee and the corresponding granting of the Motions for Summary Judgment. For the reasons stated, we affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

Appellants filed a lawsuit against multiple defendants arising out of an accident that occurred on April 6, 1998 that resulted in the death of Edward Wilborn. Edward Wilborn was electrocuted while performing duties in the course and scope of his employment. Appellants sued various Defendants for various claims related to the incident and Appellee for claims related to the life support, resuscitation and transport of the deceased. At the time that Appellants filed their Original Petition, June 9, 1999, they were represented by two attorneys, Jose Montes, Jr. and Michael D. Volk.

Two subsequent petitions were filed, and were entitled Appellant’s First Amended Original Petition and Second Amended Original Petition, respectively. Each reflected that Appellants were represented by both Mr. Montes and Mr. Volk. A Third Amended Original Petition was filed on April 6, 2000 which was signed only by Mr. Jose Montes, Jr. The appellate record reveals that the case remained pending for several years and included one abatement of the case due to the filing of bankruptcy by one of the Defendants.

On March 25, 2003, Michael D. Volk filed a Motion to Withdraw as attorney of record notifying the court that “there has been a breakdown in cooperation and communication with counsel in the handling of their case.” The trial court signed the Order allowing for the withdrawal of Mr. Volk on April 9, 2003. Mr. Montes remained the attorney of record and Mr. Volk’s motion specifically informs the court that Mr. Montes “will remain as counsel.” The motion also includes a paragraph referencing various pending deadlines, including notice that all dispositive motions were to be filed by May 8, 2003 and a trial setting of June 23, 2003. On April 17, 2003, Appellee filed two Motions for Summary Judgment, a traditional motion and a “no evidence” motion, setting both for hearing on May 8, 2003. On April 30, 2003, Appellants filed a Motion for Continuance of the dispositive motions hearing, contending that at the April 9, 2003 hearing on the Motion to Withdraw, the trial court allowed Appellants thirty days, until May 9, 2003, to obtain new counsel to represent them in pursuing their claims against Appellee. We note for the record that neither the Motion for Continuance nor the Order denying same are included in the clerk’s record though Appellants attach a copy of the motion in the appendix to their brief. The Motion for Continuance was apparently considered at the dis-positive motions hearing held May 8, 2003 and denied. At that hearing, the trial court judge orally denied Appellant’s motion but indicated that he would consider the pending motions for summary judgment “under submission” and would rule on them after the May 9, 2003 deadline. We also note that the Order allowing the withdrawal of Mr. Volk makes no reference to allowing Appellants any time limit to retain new counsel. The matter appears to have been discussed at the April 9, 2003 hearing, but any order or agreement was "never reduced to writing and a transcript of that hearing is not included in the appellate record. The trial court granted the motions for summary judgment and severance of the case on May 12, 2003.

Appellants filed a Motion for New Trial and Notice of Appeal. Appellants have raised one issue, complaining that the “trial court erred in denying Appellant’s Motion for Summary Continuance because the time period to secure new counsel had not yet expired prior to the trial court’s granting of Appellee’s ... Motion for Summary Judgment.”

II. DISCUSSION OF ISSUE

In their sole complaint, Appellants assert that the trial court abused its discretion in denying Appellants’ Motion for Continuance of the summary judgment hearings. We note that Appellants’ brief appears to include a complaint about the “granting of Appellee’s ... Motion for Summary Judgment” in a brief reference contained in its preliminary statement of the ease. We also note for the record that Appellants do not brief the issue regarding the granting of the summary judgments and do not reference it in the body of the brief. Because Appellants do not argue or brief the issue, and do not cite any authority or make any references to the record, we consider that issue waived. Tex. R.App. P. 38.1(h).

A. Standard of Review-Abuse of Discretion

The granting or denial of a motion for continuance is within the trial court’s sound discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); State v. Crank, 666 S.W.2d 91, 94 (Tex.1984); Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1964). The trial court’s action will not be disturbed unless the record discloses a clear abuse of discretion. When the ground for the continuance is the withdrawal of counsel, movants must show that the failure to be represented at trial was not due to their own fault or negligence. Villegas, 711 S.W.2d at 626; Crank, 666 S.W.2d at 94. Generally, when movants fail to comply with Tex.R. Civ. P. 251’s requirement that the motion for continuance be “supported by affidavit,” we presume that the trial court did not abuse its discretion in denying the motion. Villegas, 711 S.W.2d at 626; Garcia v. Tex.Emp. Ins. Ass’n, 622 S.W.2d 626, 630 (Tex.App.-Amarillo 1981, writ ref'd n.r.e.). The right to counsel is a valuable right; its unwarranted denial is reversible error. Villegas, 711 S.W.2d at 626; see Crank, 666 S.W.2d at 94; Stefanov v. Ceips, 395 S.W.2d 663, 665 (Tex.Civ.App.-Amarillo 1965, no writ). Therefore, when a trial court allows an attorney to voluntarily withdraw, it must give the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial. Villegas, 711 S.W.2d at 626; Lowe v. City of Arlington, 453 S.W.2d 379, 382 (Tex.Civ.App.-Fort Worth 1970, writ ref'd n.r.e.); Stefanov, 395 S.W.2d at 665; Leija v. Concha, 39 S.W.2d 948, 950 (Tex.Civ.App.-El Paso 1931, no writ). See Robinson v. Risinger, 548 S.W.2d 762 (Tex.Civ.App.-Tyler 1977, writ ref'd n.r.e.). Before a trial court allows an attorney to withdraw, it should see that the attorney has complied with the Code of Professional Responsibility: [A] lawyer should not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules. Supreme Court of Texas, Rules Governing the State Bar of Texas art. XII, § 8 (Code of Professional Responsibility) DR 2-110(A)(2); Villegas, 711 S.W.2d at 626; Smith v. State, 490 S.W.2d 902, 909-10 (Tex.Civ.App.-Corpus Christi 1972, writ ref'd n.r.e.).

B. Discussion

On appeal, Appellants argue that the court abused its discretion in failing to grant them a continuance for the purpose of obtaining different counsel in this matter. We note that since the filing of the Original Petition in this matter, Mr. Montes was, at all times, counsel of record and was an active participant in the prosecution of this litigation. The April 9, 2003 Order allowing the withdrawal of Michael Volk as attorney of record states that Jose Montes Jr. will remain as counsel for the Appellants. There are no written orders included in the appellate record that document any agreement to allow Mr. Montes to withdraw from representation. We also note that at no time were Appellants without representation by competent legal counsel who had intimate familiarity with the case.

Whether or not to grant a continuance based upon the absence of counsel is a question for the trial court’s discretion. Tex.R. Civ. P. 253. The test for determining whether a trial court abuses its discretion is whether it acted without reference to any guiding rules or principles. Waste Water, Inc. v. Alpha Finishing & Developing Corp., 874 S.W.2d 940, 942 (Tex.App.-Houston [14th Dist.] 1994, no pet.); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Comm’n App.-1939, opinion adopted). In other words, the trial court abuses its discretion when it acts in an arbitrary or unreasonable manner. Waste Water, Inc., 874 S.W.2d at 942.

Furthermore, we note that in cases where a trial judge’s discretion comes into play, such as in his decision to dismiss a case for want of prosecution, it has long been the rule that the judge may take into account the entire procedural history of the case. Waste Water, Inc., 874 S.W.2d at 942; Sustala v. El-Romman, 712 S.W.2d 164, 166 (Tex.App.-Houston [14th Dist.] 1985, writ refd n.r.e.) (court may consider entire history of case, including past lack of diligence, when deciding whether to dismiss for want of prosecution). We agree with the Houston Court of Appeals and see no reason why a trial judge should not be permitted to consider the entire history of the case in deciding whether or not good cause exists for granting a continuance. Waste Water, Inc., 874 S.W.2d at 942.

Further, because the motion was not supported by affidavit, we presume that the trial court did not abuse its discretion in denying the motion. Id.; see also Villegas, 711 S.W.2d at 626.

State v. Crank, 666 S.W.2d 91 (Tex.), cert. denied, 469 U.S. 833, 105 S.Ct. 124, 83 L.Ed.2d 66 (1984) provides guidance when evaluating a motion for continuance based upon the absence of counsel. In Crank, the Supreme Court held that where the absence of counsel has been urged as grounds for a continuance, the movant must demonstrate that the failure to be represented at trial was not due to his own fault or negligence. Id. at 94. We recognize that Crank, though helpful, is distinguishable from the case at bar because Crank was initially applied only to cases where counsel was discharged prior to trial. In fact, the court expressly stated, “We first note this is not a case where the party’s counsel voluntarily withdrew, nor one where a party, because of an emergency, was left without legal representation.” Id. at 94. It is the movant’s conduct in discharging counsel, as related to his diligence in prosecuting or defending a suit, that determines whether good cause exists for granting a continuance. Id.

Crank presented the unusual situation where the defendant had already received two continuances and suddenly announced the morning of trial that he and his counsel had reached “philosophical differences” and, in open court, discharged counsel. Absence of counsel was due entirely to the defendant’s action. Based on those facts, the Supreme Court found no abuse in discretion in denying Dr. Crank’s motion for continuance. Id. at 95.

In Villegas v. Carter, 711 S.W.2d 624 (Tex.1986), the Texas Supreme Court expanded the Crank test to include cases where counsel voluntarily withdrew, and the movant did not have time to procure new counsel. In Villegas, the court first reiterated in no uncertain terms that the granting or denial of a motion for continu-anee is within the sound discretion of the trial court. Id. at 626. The court further expanded its holding in Crank by stating that when withdrawal of counsel is the ground for continuance, the movant must show that failure to be represented by counsel at trial was not due to his own fault or negligence. In Villegas, the mov-ant’s attorney withdrew two days prior to trial and refused to turn over to the mov-ant files relating to his defense. The trial court refused to grant a continuance. Under these circumstances, the Supreme Court held that the movant was not at fault or negligent in failing to be represented at trial. The court concluded that the trial court had abused its discretion in denying the continuance. Id. at 626.

Several other cases have addressed a trial court’s failure to grant a motion for continuance based on the absence of counsel, they are helpful in our analysis and were cited with favor by the Crank court. The Crank court cited Strode v. Silverman, 217 S.W.2d 454 (Tex.Civ.App.-Waco 1949, writ ref'd), and Counts v. Counts, 358 S.W.2d 192 (Tex.Civ.App.-Austin 1962, writ dism’d w.o.j.); appeal dismissed, 373 U.S. 543, 83 S.Ct. 1549, 10 L.Ed.2d 688 (1963), both dealing with the trial court’s failure to grant a new trial based upon absence of counsel. Counts is particularly relevant to our analysis because that court specifically stated: “The failure of an attorney to perform the services for which he was employed, or his absence on the date set for trial or lack of diligence by a litigant in securing an attorney to represent him, or where a litigant fails to take steps to procure another attorney although advised that his counsel has withdrawn from the case, does not excuse such litigant’s failure to take steps to see that he was properly represented at the trial.” Counts, 358 S.W.2d at 200.

The Crank court also relied upon Van Sickle v. Stroud, 467 S.W.2d 509 (Tex.Civ.App.-Fort Worth 1971, no writ). Van Sickle clearly states that absence of counsel is a ground for continuance only upon a showing of diligence and lack of fault by the complaining party. Id. at 511. Here, even if taking Appellants assertion that they had attempted to obtain other counsel but were not able to do so as true, we note that they appeared at the May 8, 2003 hearing represented by their attorney of record who participated in those proceedings. At no time were they unrepresented by counsel. Thus, we believe our holding is consistent with the analysis established by Crank and Villegas.

We note that the Houston Court of Appeals has also rendered decisions consistent with our position. In Dell Development Corp. v. Best Indus. Uniform Supply Co., Inc., 743 S.W.2d 302 (Tex.App.-Houston [14th Dist.] 1987, writ denied) and Gendebien v. Gendebien, 668 S.W.2d 905 (Tex.App.-Houston [14th Dist.] 1984, no writ), the Houston court affirmed the denial of a motion for continuance despite the absence of the party’s attorney. In Dell, the corporation’s only explanation for failing to secure counsel to represent it at trial was that an officer, who was not a licensed attorney, believed that he could represent the corporation without the assistance of an attorney. Dell Development Corp., 743 S.W.2d at 303. In Gendebien, the movant had not engaged a new attorney to represent him despite withdrawal of his counsel one month before. Gendebien, 668 S.W.2d at 908. Both of these holdings are consistent with the rules enunciated in Crank and Counts and recognize the culpability of the moving party. Waste Water, Inc., 874 S.W.2d at 942.

Here, it is clear from the record that even if Appellants had been actively seeking another attorney to represent them, their current counsel was certainly capable of providing representation until such time as new counsel assumed responsibility for the case. At the motion’s hearing on May 8, 2003, the trial court inquired of Mrs. Wilborn whether she had obtained a new attorney. She responded that “And I have been trying to ascertain an attorney. At this point in time, because of the time period, I’m having difficulties in town and my daughter is presently checking out of town for me.” In short, they at no time, were not represented by able counsel. Further, we note that the Motion for Continuance did not contain any affidavits supporting the basis for a continuance of the hearings as required by Tex.R. Civ. P. 251. The motion as filed provides support for the presumption that the trial court did not abuse its discretion in denying the continuance. Accordingly, after examining the record, we hold that the trial judge did not clearly abuse his discretion when he denied Appellants’ Motion for Continuance. We therefore overrule Appellants’ sole issue.

Having overruled Appellants’ sole issue on review, we affirm the judgment of the trial court.


author: JOHN F. ONION, JR., Justice

text:
    Blake TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 03-03-00624-CR.
    Court of Appeals of Texas, Austin.
    April 14, 2005.

      Keith S. Hampton, Austin, for Appellant.
    Richard J. Miller, Belton, for Appellee.
    Before Chief Justice LAW, Justices PURYEAR and ONION.

       Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

   OPINION

JOHN F. ONION, JR., Justice

(Retired).

Appellant Blake Taylor appeals her conviction for operating a motor vehicle in a public place while intoxicated, a Class B misdemeanor. See Tex. Pen.Code Ann. § 49.04 (West 2003). The jury found appellant guilty. The trial court assessed punishment at ninety days in the county jail and a fine of $1,000. The imposition of the sentence was suspended and appellant was placed on probation for one year subject to certain conditions.

Points of Error

Appellant advances eight points of error. First, appellant contends that the trial court erred in denying her a timely hearing on the motion for new trial based on the lack of jurisdiction. Second and third, appellant asserts that the trial court erred in admitting testimony regarding the field sobriety tests of horizontal-gaze mystag-mus and the one-leg stand. Fourth, appellant claims that the trial court erred by excluding testimony regarding her medical condition at the time of her arrest. Fifth, sixth, seventh, and eighth, appellant challenges the legal and factual sufficiency of the evidence to support the conclusion that appellant had lost the normal use of her mental and physical faculties by the introduction of alcohol into her body. We will abate the appeal.

A Jurisdiction Issue

We turn first to appellant’s claim that the trial court erred in holding that it had no jurisdiction to hear the timely filed, timely presented motion for new trial within the seventy-five day period from the suspension of the imposition of the sentence because the appellate record had been filed in the appellate court prior to the hearing. See Tex.R.App. P. 25.2(g).

Background

The jury trial was conducted on September 9 and 10, 2008. On October 8, 2003, the hearing on punishment was held by the trial court. Appellant was placed on probation as described. On October 20, 2008, appellant filed a notice of appeal followed by a motion for new trial on November 6, 2003, both documents being filed within the thirty-day periods required. See Tex. R.App. P. 21.4, 26.2. The record reflects and the trial court acknowledged that the motion for new trial was timely filed and presented to the court on November 6, 2003, and that a hearing was set on the motion for December 15, 2003, within the seventy-five day period for hearing motions for new trials. See Tex.R.App. P. 21.8.

Six days later, on November 12, 2003, the court reporter’s record was filed in this Court followed by the filing here of the clerk’s record on November 21, 2003.

On December 15, 2003, when the trial court called for a hearing on the timely filed and presented motion for new trial within the 75-day period, the State objected on the basis that the trial court had lost jurisdiction as the appellate record had been filed in this Court. See Tex.R.App. P. 25.2(g). The trial court sustained the State’s objection. The record of this “aborted” hearing is reflected in the supplementation of the reporter’s record by the court reporter and filed in this Court on December 19, 2003.

The trial court relied upon Rule 25.2(g) that provides:

Once the record has been filed in the appellate court, all further proceedings in the trial court — except as provided otherwise by law or by these rules — will be suspended until the trial court receives the appellate-court mandate.

Tex.R.App. P. 25.2(g).

Pursuant to Rule 25.2(g), it is the filing of the “record” that ends the trial court’s power to act. See 4SA George E. Dix & Robert 0. Dawson, Texas Practice: Criminal Practice and Procedure § 43.09 (2d ed.2001) (hereinafter Dix).

The time periods for filing the appellate record in criminal cases are governed by Rule 35.2 of Texas Rules of Appellate Procedure. The time periods provided therein for the filing of the appellate record are clearly dependant on whether a motion for new trial is timely filed. Tex.R.App. P. 35.2(a), (b). The responsibility for filing the clerk’s record in the appellate court is placed on the trial court clerk. See Tex. RApp. P. 35.3(a). The court reporter has the responsibility for the appellate filing of the reporter’s record. See Tex.R.App. P. 35.3(b). There are provisions to ensure the filing of the appellate record, but they are not here applicable as the filing of the appellate record appears to be premature in light of the pending ■ motion for new trial.

The record that deprives the trial court of jurisdiction when filed in the appellate court consists of both the trial clerk’s record and the court reporter’s record. See 43A Dix § 48.321. It is observed that Rule 37.3(a)(2) concerning the delay in filing the appellate record uses the term “either part of the record.” Tex.R.App. P. 37.3(a)(2). Normally then, both the clerk’s and court reporter’s record must be filed in the appellate court before Rule 25.2(g) is applicable.

If the position taken by the State is correct, then at the point the court clerk filed the clerk’s record in this Court, the trial court lost jurisdiction to hear the timely filed and presented motion for new trial duly set for a hearing by the trial court itself. Surely, the clerk and court reporter knew or should have known that a proper motion for new trial was pending, that the record for appeal was not complete, and that there was not yet any finality to the normal trial court’s procedures. Under the State’s theory, it is the trial court clerk and court reporter who decide when jurisdiction of a criminal case passes under the rules from the trial court to the appellate court.

Motion for New Trial Procedure

The motion for new trial procedure has long been an important and integral part of our criminal trial system as provided for in our codes of criminal procedure. Now its procedural and substantive requirements are found in the Texas Rules of Appellate Procedure. See Tex.R.App. P. 21.1-21.9. A motion for new trial is not a requisite for raising a point of error or issue on appeal. See generally Tex.R.App. P. 21.1. Nevertheless, a motion for new trial is sometimes necessary in order to “adduce facts of a matter not otherwise shown in the record.” Tex.R.App. P. 21.2.

In Prudhomme v. State, 28 S.W.3d 114 (Tex.App.-Texarkana 2000), the Court in an order-opinion abating the appeal wrote:

We also find it to be beyond dispute that a motion for new trial can be an extremely important tool for presenting an appeal. A motion for new trial is generally not a prerequisite to an appeal, but it can be indispensable for a meaningful appeal of issues which are reliant on facts outside the record. See Tex. R.App. P. 21.2; 43 George E. Dix & Robert O Dawson, Texas Practice: Criminal Practice and Procedure § 41.01 (1995 & Supp.2000).

Id. at 118.

The right to file and have heard a motion for new trial is deemed absolute provided the right is asserted within the time period specified by law. McIntire v. State, 698 S.W.2d 652, 660 (Tex.Crim.App.1985).

For over one hundred and thirty years, our trial courts have had the discretion to grant new trials in the interest of justice. See State v. Gonzalez, 855 S.W.2d 692, 694 (Tex.Crim.App.1993); Mullins v. State, 37 Tex. 337, 339-40 (1872-73). Rule 21.3 of the Rules of Appellate Procedure does not provide an exclusive list of the grounds for granting a new trial. See Kelley, 20 S.W.3d at 151. The granting or denying of a motion for a new trial is within the sound discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995).

Appellant had a right to have his timely filed motion for new trial heard. The trial court clerk and the court reporter forwarded their records to this Court without regard to or without being aware of the pending motion for a new trial. Such premature actions which could affect the times when courts lose or obtain personal jurisdiction of a case should be avoided, whether done inadvertently or by design. Such clerical actions could be the subject of great abuse.

Under these circumstances, we do not interpret the jurisdictional bar of Rule 25.2(g) to foreclose the trial court’s consideration of a timely filed motion for new trial. See Gipson v. State, 669 S.W.2d 351 (Tex.App.-Fort Worth 1984, no pet.) (interpreting article 44.11 of the Code of Criminal Procedure, forerunner of Rule 25.2(g)). In Gipson, the Court wrote:

Under the particular facts of the case, where the filing of the record preceded the running of the thirty-day period for the filing of a motion for new trial, the proper remedy requires that appellant be afforded an opportunity to file her motion for new trial with the trial court.

Id. at 353. And in Gonzalez v. State, 659 S.W.2d 470, 475 (Tex.App.-Corpus Christi 1983, pet. refd), the Court observed that where the defendant was timely seeking to have his motion for new trial heard before the filing of the appellate record, the trial court had jurisdiction to hear the motion. Cf. Harris v. State, 137 S.W.3d 829, 831 (Tex.App.-Waco 2004, no pet.) (appeal abated after record filed as certificate of right of appeal was defective).

In Green v. State, 906 S.W.2d 937 (Tex.Crim.App.1995), a capital murder prosecution, the trial court originally failed to make findings of fact and conclusions of law regarding the voluntariness and admissibility of the defendant’s confession as required by law. See Tex.Code Crim. Proc. Ann. art. 38.22, § 6 (West 1979). When the failure to make these findings was made an issue on appeal, the trial court made the findings one year after the appellate record had been filed in the reviewing court. Id. at 938. Green held that these belated findings were null and void as the trial court lacked jurisdiction at the time because the filing of the appellate record deprived the trial court of the power to act in light of Rule 40(b)(2) of the Rules of Appellate Procedure (now Rule 25.2(g)). Because of the mandatory nature of article 38.22, the appeal was abated and the cause remanded to give the trial court an opportunity to make the findings, this time with jurisdiction. Id. at 940.

Because appellant had an important right to have her motion for new trial heard and the trial court had an affirmative duty to hear the motion, there is adequate basis for an abatement of the appeal.

Moreover, there is an exception clause to Rule 25.2(g). It provides that appellate jurisdiction obtains “except as provided otherwise by law or by these rules.” We ordinarily give effect to the plain meaning of a statute or a rule. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). The exception clause of Rule 25.2(g) has not been interpreted as far as we have been able to determine. Former article 44.11 of the Code of Criminal Procedure that preceded Rule 25.2(g) provided in part “except as to bond as provided in article 44.04 and the proceedings in article 40.09....” The clause in Rule 25.2(g) is far broader than the earlier one in article 44.11, plus the exception is to be found elsewhere in the law or rules rather than expressly stated within the jurisdictional bar provision.

The State calls attention to the present provisions of articles 44.04 and 26.04 of the Code of Criminal Procedure as examples of exceptions to Rule 25.2(g). See Tex. Code Crim. Proc. Ann. arts. 26.04, 44.04 (West Supp.2004-05). We agree but observe that these statutes relating to the appointment of counsel and bond do not expressly or otherwise make reference to Rule 25.2(g) or the jurisdictional bar provided therein, nor is such required.

Bond has long been considered an exception to the jurisdictional bar now found in Rule 25.2(g). Article 26.04 has now been considered an exception. See Enriquez v. State, 999 S.W.2d 906, 908 (Tex.App.-Waco 1999, no pet.). This does not mean that bond and appointment of counsel are the only recognized exceptions.

The procedures for handling motions for new trial are set forth in the Rules of Appellate Procedure promulgated by the Texas Court of Criminal Appeals. When they are dutifully followed, a defendant’s right to a new trial is not to be abrogated by the mere precipitous filing in the appellate court of an incomplete record by the trial court clerk and court reporter.

Accordingly, we abate the appeal and remand the cause to the trial court to afford appellant a hearing on his motion for new trial within thirty days from the date of this opinion. We do not pass upon or comment upon the merits of the motion for new trial or the points of error raised.

If the motion for new trial is granted by the trial court, this record should be supplemented with a copy of the written order. The appeal will then be dismissed upon appellant’s motion. See Tex.R.App. P. 42.2.

If the motion for new trial is overruled by the trial court, this record should be supplemented with a copy of the written order, a copy of the court reporter’s record of the hearing and all other matters pertaining to the procedure after remand. See Garcia v. State, 97 S.W.3d 343, 349 (Tex.App.-Austin 2003, no pet.). The parties will be permitted to brief any issues properly raised. Id.; cf. Massingill v. State, 8 S.W.3d 733, 736 (Tex.App.-Austin 1999, no pet). The supplemented record shall be filed in this Court within sixty days from the date of this opinion.

      . Rule 21.4 provides:
      (a) To File. The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.
      (b) To Amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.
      Tex.R.App. P. 21.4.

      . Rule 26.2 provides:
      (a) By the Defendant. The notice of appeal must be filed:
      (1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or
      (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.
      (b) By the State. The notice of appeal must be filed within 15 days after the day the trial court enters the order, ruling, or sentence to be appealed.
      Tex.R.App. P. 26.2.

      . Rule 21.6 provides:
      The defendant must present the motion for new trial to the trial court within 10 days of filing it, unless the trial court in its discretion permits it to be presented and heard within 75 days from the date when the court imposes or suspends sentence in open court.
      Tex.R.App. P. 21.6.

      . The immediate forerunners of Texas Rule of Appellate Procedure 25.2(g) were Rules 25.2(e) and 40(b), substantially unchanged. An earlier predecessor was article 44.11 of the Code of Criminal Procedure that read:
      "Upon the appellate record being filed in the court of appeals or the Court of Criminal Appeals, all further proceedings in the trial court, except as to bond as provided in Article 44.04, shall be suspended and arrested until the mandate of the appellate court is received by the trial court. In cases where the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the court of appeals or the Court of Criminal Appeals as in- other cases."
      Act of May 27, 1965, 59th Leg., R.S., vol. 2, ch. 722, 1965 Tex. Gen. Laws 317, 513, amended by Act of May 19, 1967, 60th Leg., R.S., ch. 659, § 31, 1967 Tex. Gen. Laws 1732, 1748, amended by Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 129, 1981 Tex. Gen. Laws 761, 815. Article 44.11 of the Code of Criminal Procedure was repealed by Court of Criminal Appeals effective September 1, 1986 with the adoption of Rules of Appellate Procedure. See Act of May 27, 1985, 69th Leg., R.S., ch. 685, 1985 Tex. Gen. Laws 2472.

      .Rule 35.2 provides:
      The appellate record may be filed in the appellate court:
      (a) if a motion for new trial is not filed, within 60 days after the date the sentence is imposed or suspended in open court or the order appealed from is signed;
      (b) if a timely motion for new trial is filed and denied, within 120 days after the date the sentence is imposed or suspended in open court; or
      (c) if a motion for new trial is granted, within 60 days after the order granting the motion is signed.
      Tex.R.App. P. 35.2.

      . To ensure the filing of the appellate record, the trial court and the appellate court are jointly appointed guardians. See Tex.R.App. P. 35.3(c). Further, Rule 37.3(a)(2) provides that should "either part of the record” not be timely filed, the appellate court clerk must refer the matter to the appellate court for action. Tex.R.App. P. 37.3(a)(2). With the responsibility for filing the appellate record divided between the trial court clerk and the court reporter, the "record” frequently arrives in the appellate court piecemeal as in the instant case.

      . The State faults appellant for not waiting until his last window of opportunity (15 days after the overruling of the motion for new trial) to give his notice of appeal. See Tex. R.App. P. 21.8(trial court must rule on motion for new trial within 75 days after sentence) and 26.2(a)(2) (notice of appeal may be given within 90 days after sentence when motion for new trial is filed). The State asserts appellant could have avoided the actions of the trial court clerk and the court reporter in this case. Appellant was only required to give notice of appeal within the time period provided. See also Tex.R.App. P. 27.1 (provision for prematurely filed notice of appeal).

      . The filing of a notice of appeal in a criminal case does not have the same effect on the trial court’s jurisdiction as the filing of the appellate record in the appellate court. See Ex parte Brewery, 677 S.W.2d 533, 536 (Tex. Crim.App.1984), overruled on other grounds, Awadelkariem v. State, 974 S.W.2d 721 (Tex. Crim.App.1998); Hall v. State, 698 S.W.2d 150, 152 (Tex.Crim.App.1985); State v. Kelley, 20 S.W.3d 147, 150 (Tex.App.-Texarkana 2000, no pet.).

        We are aware that the Court of Criminai Appeals in Whitehead v. State, 130 S.W.3d 866, 874 n. 34 (Tex.Crim.App.2004), observed a conflict between some case law and Rule 25.2(g) of the Rules of Appellate Procedure as follows:
      The notice of appeal was filed on February 12, the clerk’s record of the indigence hearing was mailed on February 22, and the Court of Appeals file-stamped the record on February 25. We have previously held that the filing of a notice of appeal divests the trial court of general jurisdiction. Ramirez v. State, 104 S.W.3d 549, 550 (Tex.Crim.App.2003); Lopez v. State, 18 S.W.3d 637, 639(Tex.Crim.App.2000). However, Rule 25.2(g) states that further proceedings in the trial court (unless otherwise provided by law or the appellate rules) are suspended “[ojnce the record has been filed in the appellate court.” See also Green v. State, 906 S.W.2d 937, 939 (Tex.Crim.App.1995). At this juncture, we need not resolve any potential conflict between our cases and the rule, or any ambiguity within the rule, concerning the exact moment the trial court loses jurisdiction.
      Neither party here is claiming that the giving of the notice of appeal divested the trial court of its jurisdiction over the case. We need not explore the issue here. See Beeler v. State, 122 S.W.3d 814, 816 (Tex.App.-Amarillo 2003, no pet.) (holding Rule 25.2(g) provides the answer).

      . The aggravated sexual assault conviction was later affirmed in Prudhomme v. State, 47 S.W.3d 683 (Tex.App.-Texarkana 2001, pet. ref'd).

      . The trial court’s approval of the appellate record has been eliminated or greatly diluted by the Rules of Appellate Procedure.
      In the 1925 Code of Criminal Procedure, the trial court clerk was to prepare the transcript in conformity with the rules governing transcripts in civil cases. See Article 841 (1925 Code of Criminal Procedure). Under this practice, the court reporter’s statement of facts was filed with the trial court clerk for inclusion in the record which had then to be approved by the trial court before being transmitted to the appellate court.
      In the 1965 Code of Criminal Procedure, some innovative changes were made in the appellate procedure by article 40.09. Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex.Gen. Laws 317, 478-82. See Special Commentary, article 40.09, Code of Criminal Procedure, volume 5, pp. 205-06 (West 1979).
      Under article 40.09, the trial court clerk prepared the appellate record, which included the statement of facts from the court reporter. Notice of completion of the record was given to the parties and they were afforded an opportunity to object. Section 7 of article 40.09. The record, as approved by trial court, was filed with the trial court clerk. Section 8. The defendant’s and State’s appellate briefs were then filed with the trial court clerk. Sections 9 and 10. It was the duty of the trial court to decide from the appellate briefs whether to grant a new trial. Section 12. If there was a refusal to grant a new trial, the appellate record was transmitted to the appellate court. Section 13. Article 40.09 was subsequently repealed.
      Under the procedure described, few problems of premature filing in the appellate court arose.

      . In Berry v. State, 995 S.W.2d 699 (Tex.Crim.App.1999), the opposite result was reached in a somewhat similar situation as in Green v. State, 906 S.W.2d 937 (Tex.Crim.App.1995). In Berry, however, the belated findings of fact and conclusions of law were related to a revocation of probation hearing in a deceptive practices case. Id. at 700. The Berry court distinguished Green on the bases that the findings as to the confession were required by law and that the trial court had an affirmative duty under the statute to make the findings, while in Berry there was no legal requirement that the findings of fact and conclusions of law be made after a revocation of probation hearing. Id. at 702.

      . See Act of May 19, 1967, 60th Leg., R.S., ch. 659, § 31, 1967 Tex. Gen. Laws 1732, 1748 as amended by Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 109, 1981 Tex. Gen. Laws 961, 815. Article 40.09 of the 1965 Code of Criminal Procedure has been repealed, but see art. 44.04, Tex.Code Crim. Proc. Ann. (West Supp.2004-05).