Abraham Galvan v. Joanna Galvan

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00025-CV Abraham Galvan, Appellant v. Joanna Galvan, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. 94-10018, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING Abraham Galvan appeals the trial court's decree divorcing him and appellee Joanna Galvan and appointing Joanna sole managing conservator of their three children. We will affirm the trial court's decree. Abraham contends in his first issue that the trial court erred by failing to rule on his pro se motion for continuance. Abraham, who is incarcerated in the Texas prison system, was represented by counsel at trial, although he is proceeding pro se on appeal. Abraham argues primarily that his counsel neglected to present the motion to the court or to argue forcefully for a bench warrant so that Abraham could present the motion to the court himself. In his second issue, Abraham argues that, by failing to fully represent him, his attorney did not fulfill his duty to serve as an effective advocate. An appellate court in a civil case reviews the record only for error committed by the trial court, not for error committed by counsel. See Tex. R. App. P. 33.1(a); In re Hamilton, 975 S.W.2d 758, 761 (Tex. App.--Corpus Christi 1998, no pet.) (appeal is direct attack on decisions of lower court). To the extent Abraham argues that the court erred in failing to rule, we are precluded from review because the record contains neither the motion for continuance nor a transcription of the hearings Abraham refers to in his brief. Nothing of record shows that the court refused to rule on a motion for continuance. See McElyea v. Parker, 81 S.W.2d 649, 653 (Tex. 1935); Charles v. Zamora, 811 S.W.2d 174, 176 (Tex. App.--Corpus Christi 1991, writ denied). In the absence of a reporter's record, we decline to accept the statement of facts in Abraham's brief as true. See Tex. R. App. P. 38.1(f); Whatley v. Whatley, 493 S.W.2d 299, 301-02 (Tex. Civ. App.--Dallas 1973, no writ) (emphasizing appellate court's discretion in accepting appellant's statements). We therefore overrule Abraham's two issues and affirm the trial court's decree. Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel Affirmed Filed: November 18, 1999 Do Not Publish