Jerome Porter v. Martha Reyes Porter ( 2022 )

Affirmed and Opinion Filed February 28, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00733-CV
JEROME PORTER, Appellant
V.
MARTHA REYES PORTER, Appellee
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-19-07439
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Goldstein
Opinion by Justice Partida-Kipness
Jerome Porter (Husband) appeals the divorce decree from his marriage to
Martha Reyes Porter (Wife). Husband brings two evidentiary issues on appeal. He
seeks reversal of the decree and asks this Court to remand for a new trial. After
reviewing the parties’ briefs and the record, we affirm the final divorce decree.
BACKGROUND
The parties married in 1993 and separated in 2012. Husband filed his petition
for divorce on April 12, 2019. Wife filed her counter petition for divorce on May 30,
2019. Both parties asserted that “the marriage has become insupportable because of
discord or conflict of personalities” between the parties “that destroys the legitimate
ends of the marriage relationship and prevents any reasonable expectation of
reconciliation.” Wife further pleaded that she should be awarded a disproportionate
share of the marital estate for several reasons including Husband’s fault in the
breakup of the marriage. Husband did not seek a disproportionate share of the marital
estate and did not plead that Wife was at fault for the breakup of the marriage.
The parties tried the case to the court on February 11, 2020. At the conclusion
of the bench trial, the trial court issued a memorandum ruling in which the court
granted the divorce on the grounds of insupportability and made eight findings
concerning a just and right division of the community property. The trial court signed
the final divorce decree on March 27, 2020. The trial court made no findings of fault.
Husband filed a motion for new trial. That motion was overruled by operation
of law. Husband also filed a request for findings of fact and conclusions of law. The
trial court did not issue findings or conclusions. This appeal followed.
ANALYSIS
Husband brings two issues on appeal, both of which complain of evidentiary
rulings at trial. We will address each in turn.
I. Extraneous Offense Testimony
In his first issue, Husband argues that the trial court “erred” by overruling
Husband’s objection to testimony given by Wife in response to a question asked by
Husband’s counsel. At trial, Wife testified that Husband was physically abusive
towards her during the marriage. She testified that Husband’s “last” assault on her
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occurred on February 11, 2012. Husband testified that he was convicted in 2000,
2002, and 2012 for family violence and served fourteen months of his sentence for
the 2012 felony conviction. While being examined by Husband’s counsel, Wife
testified as follows concerning one of three criminal complaints brought by Wife
against Husband:
Q. Okay. And obviously it was your claim that he had struck you?
A. He always did.
Q. Well, I’m not interested in what he’s always said [sic], I’m just
interested in what happened during that incident?
A. There was so many times, I don’t remember.
MR. NATION: Objection, Your Honor, nonresponsive.
THE COURT: Sustained.
Q. (BY MR. NATION) Okay. And by the way, what’s funny to you
about this?
A. There’s so many --
Q. I didn’t -- I asked you --
A. There’s so many times that I lost track of how many times he hit me.
MR. NATION: Objection, Your Honor, nonresponsive,
and not admissible under Rule 404B.
THE COURT: Well, she answered your question. I guess
that’s what she thinks is funny.
Q. (BY MR. NATION) All right.
MR. NATION: So my objection is overruled?
THE COURT: Yes.
MR. NATION: Thank you.
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On appeal, Husband contends Wife’s statement that “[t]here’s so many times that I
lost track of how many times he hit me” constituted inadmissible evidence of
extraneous offenses barred by Rule 404(b). We disagree.
The decision whether to admit or exclude evidence is committed to the sound
discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753
(Tex. 1995). A trial court abuses its discretion when it acts arbitrarily or
unreasonably, or without reference to any guiding principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “A trial court’s evidentiary
ruling must be upheld if there is a legitimate basis for it.” May v. Buck, 375 S.W.3d
568, 573–74 (Tex. App.—Dallas 2012, no pet.) (citing Owens–Corning Fiberglas
Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)). “Even if the exclusion or
admission of evidence is found to be an abuse of discretion, it does not warrant
reversal unless the error probably caused the rendition of an improper judgment.”
See id.We conclude the trial court did not abuse its discretion by overruling
Husband’s objection. Wife provided a responsive answer to a question asked by
Husband’s counsel. Husband cannot now complain of the admission of an answer
he deems unfavorable. See, e.g., Varel Mfg. Co. v. Acetylene Oxygen Co., 990
S.W.2d 486, 499 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.) (party is not
entitled to complain of responsive answers to questions that party asked the witness
on cross-examination); Cherry v. State, 546 S.W.2d 922, 923 (Tex. Civ. App.—
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Dallas 1977, writ ref’d) (“A party is not permitted to ask questions, and then upon
receiving responsive answers unfavorable to his cause, have the answers stricken
from the record.”); Snavely v. Snavely, 445 S.W.2d 531, 532 (Tex. Civ. App.—Fort
Worth 1969, no writ) (no error shown when testimony given in response to questions
by appellant’s attorney). We overrule Husband’s first appellate issue.
II. Bill of Exceptions
In his second issue, Husband contends the trial court committed reversible
error by improperly limiting the substance of a bill of exceptions. Specifically,
Husband argues that the trial court committed reversible error by sustaining Wife’s
objections to questions concerning the number of times Wife had sexual intercourse
outside of the marriage and whether Husband became angry because he found out
Wife “was talking to a doctor.” Relevant portions of that examination are below:
Q. Now, I’m going to ask you again, ma’am, have you been faithful to
Jerome Porter during the marriage?
A. No.
Q. Okay. Have you had affairs with other men during the marriage?
A. One, yes.
Q. All right. And who was that and can you tell me the name of the
person?
A. No.
Q. Why not?
A. Do I have to say his name?
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MR. HOUSEL: Your Honor, we’d object with regards to
the grounds of invasion of privacy. It is not relevant to the
terms of this divorce.
MR. NATION: It is a bill of exception, Your Honor. If we
appeal, the appellate court will decide whether it is
relevant.
THE COURT: Okay. But the reason – why does he need
to be named?
MR. NATION: Well, I am --
THE COURT: It is irrelevant what his name is.
MR. NATION: Well, I’ll move on, Your Honor.
....
Q. Okay. Did you have sexual intercourse with this person at that time?
A. I did.
Q. All right. And how long did this relationship last?
A. About six months.
Q. Okay. And did you have sexual intercourse on few or many
occasions?
MR. HOUSEL: Your Honor, I’ll object to the relevance of
the number of times.
THE COURT: Sustained.
MR. NATION: All right.
Q. (BY MR. NATION) Did it happen more than once?
A. Yes.
....
Q. At some point during your marriage, were you talking to a doctor
and Mr. Porter found out and was angry; do you remember that?
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A. No.
MR. HOUSEL: Your Honor, I’m going to object and
vague with regard to talking to a doctor.
THE COURT: Sustained.
MR. NATION: I pass the witness for purposes of this bill
of exception.
On appeal, Husband argues that the trial court committed reversible error by
restricting his examination of Wife and preventing him “from showing the witness’
testimony and arguing its relevance.” We disagree.
“It is reversible error to refuse a party the right to perfect his bill of
exceptions.” Ledisco Fin. Servs., Inc. v. Viracola, 533 S.W.2d 951, 959 (Tex. Civ.
App.—Texarkana 1976, no writ) (citing Dorn v. Cartwright, 392 S.W.2d 181 (Tex.
Civ. App.—Dallas 1965, writ ref’d n.r.e.)); TEX. R. APP. P. 44.1. During trial, the
trial court sustained Wife’s objections to Husband asking if she was unfaithful to
Husband during the marriage. Husband’s counsel reserved the right to make a bill
of exceptions regarding the question of Wife’s infidelity. At the close of evidence,
the trial court permitted Husband to make a bill of exceptions on the question of
infidelity. During that examination, Wife admitted to having a six-month affair
during which she had sexual intercourse with her lover more than once. No
additional testimony was needed to show what was excluded during trial (i.e.,
whether Wife had been unfaithful during the marriage). The trial court, therefore,
did not refuse Husband the right to perfect his bill of exceptions. Further, any
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specifics concerning the identity of Wife’s lover and the number of interactions
between them was immaterial to the outcome of the case because Husband did not
seek a finding of fault against Wife and the trial court made no findings as to fault.
We conclude the trial court did not commit reversible error by sustaining Wife’s
objections to questions posed during the presentation of the bill of exceptions. See
Dorn, 392 S.W.2d at 186 (trial court did not err by refusing to allow appellant to
obtain the answers of appellee in order to make out her bill of exceptions because
such answers were immaterial to the outcome of the lawsuit).
Moreover, Husband has not shown or established that the trial court
committed reversible error by excluding the identity of Wife’s lover and the number
of interactions between them. “The party complaining about the exclusion of
evidence must show by either a bill of exception or an offer of proof the substance
of the evidence excluded.” Hogg v. Lynch, Chappell & Alsup, P.C., 553 S.W.3d 55,
67 (Tex. App.—El Paso 2018, no pet.) (quoting Katy Int’l, Inc. v. Jinchun Jiang,
451 S.W.3d 74, 96 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)); Sullivan
v. Bickel & Brewer, 943 S.W.2d 477, 484 (Tex. App.—Dallas 1995, writ denied)
(same); Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 429 (Tex. App.—Houston
[1st Dist.] 1990, no writ) (same). Then, to obtain reversal of the judgment on the
ground of improperly excluded evidence, the appellant has the burden to show that
the rejection of the testimony he attempted to offer (1) probably caused the rendition
of an improper judgment; or (2) probably prevented the appellant from properly
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presenting the case to the court of appeals. TEX. R. APP. P. 44.1; Agric. Warehouse,
Inc. v. Uvalle, 759 S.W.2d 691, 694 (Tex. App.—Dallas 1988, writ denied) (after a
party makes a proper bill of exceptions, the appellate court can review the evidence
to determine if its exclusion constitutes reversible error) (citing former TEX. R. APP.
P. 81(b)).
Under this record, we conclude the trial court’s rulings did not cause the
rendition of an improper judgment or prevent Husband from properly presenting his
case on appeal. The bill of exceptions includes Wife’s acknowledgment that she was
unfaithful to Husband during the marriage. This Court can, therefore, look to that
evidence and address Husband’s complaints concerning its exclusion. Moreover,
Husband has not shown that the rejection of the testimony he attempted to offer
probably caused the rendition of an improper judgment. The trial court made no
findings as to fault and did not divide the marital estate disproportionately. The
numerical extent of Wife’s infidelity and the identity of her lover or lovers was,
therefore, immaterial to the division of the marital estate. Under this record, we
conclude the trial court did not commit reversible error by excluding such testimony.
CONCLUSION
We conclude the evidentiary rulings of which Husband complains did not
constitute an abuse of discretion and did not result in reversible error.
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Accordingly, we overrule Husband’s appellate issues and affirm the final
divorce decree.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
200733F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEROME PORTER, Appellant On Appeal from the 255th Judicial
District Court, Dallas County, Texas
No. 05-20-00733-CV V. Trial Court Cause No. DF-19-07439.
Opinion delivered by Justice Partida-
MARTHA REYES PORTER, Kipness. Justices Reichek and
Appellee Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee MARTHA REYES PORTER recover her
costs of this appeal from appellant JEROME PORTER.
Judgment entered this 28th day of February 2022.
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