In the Interest of D.M.O. v. << (2018)

DISSENTING OPINION

For the reasons set forth in my dissent to the majority opinion issued on March 21, 2018, I respectfully dissent to the denial of Appellees' Motion for Rehearing without requesting a response from Appellant.

I note that the pro se Appellees have attached to their Motion for Rehearing an affidavit by D.M.O., the child the subject of this suit, and a Motion for Judge to Confer with Child. As an appellate court, we cannot consider matters that are not a part of the appellate record. See Ramex Constr. Co. v. Tamcon Servs., Inc., 29 S.W.3d 135, 138 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (recognizing that the appellate court could not consider an exhibit that was attached to a motion for rehearing but not included in the appellate record). These are matters that must first be presented to the trial court. See Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991) (noting that the appellate court could not consider evidence not before the trial court prior to judgment).

Karen Angelini, Justice