Frankie Wayne Nealy v. Robin Michelle Nealy ( 2015 )

FILED
NO. 13-14-00689-CV IN THE 13TH COURT OF APPEALS
CORPUS CHRISTI
12/17/15
IN THE
THIRTEENTH OOURT OF APPEALS
CLERK
. AT CORPUS CHRISTI, TEXAS
FRANKIE WAYNE NEALY, ITHE13TH COURT OF APPEALS
APPELLANT, CORPUS CHRISTI
v.
DEC 17 2015
ROBIN MICHELLE NEALY, DORIAN E, RA
APPELLEE BY
APPEALED FROM THE 36th JUDICIAL DISTRICT COURT OF
SAN PATRICIO COUNTY, TEXAS
IN CAUSE NO. S-12-5439FL-A
APPELLANT'S BRIEF
FILED BY:
FRANKIE NEALY #1714921
APPELLANT-PRO SE
ELLIS UNIT
1697 FM 980 .
HUNTSVILLE, TEXAS 77343
APPELLANT REQUESTS ORAL ARGUMENT
RECE/VED
^C 17 20/5
13th COURT OF APPEALS
IDENTITY OF PARTIES AND COUNSEL
TRIAL COURT
36th Judicial District Court
Honorable Judge Starr Boldrick Bauer
400 W. Sinton Street
Sinton, TX 78387
RESPONDENT-APPELLANT
Frankie Nealy # 1714921
Ellis Unit
1697 FM 980
Huntsville, TX 77343
RESPONDENT'S TRIAL COUNSEL
Frankie Nealy # 1714921
pro se
Ellis Unit
1697 FM 980
Huntsville, TX 77343
RESPONDENT'S APPEAL COUNSEL •
Frankie Nealy # 1714921
pro se
Ellis Unit
1697 FM 980
Huntsville, TX 77343
PETITIONER-APPELLEE
Robin Nealy
101 Rice Drive
Portland, IX 78374
PETITIONER'S TRIAL COUNSEL
Mary Rachel Sheeran
Bar,-no. 10176450
P.O. Box 592447
San Antonio, TX 78259
(830)386-8017
PETITIONER'S APPEAL COUNSEL
Danice Obregon
Bar no. 90001525
802 N. Carancahua Ste. 2100
Corpus Christi, TX 78401
(361)884-5400
i.
TABLE OF CONTENTS
IDENTITY OF PARTIES AND OOUNSEL x
ill
INDEX OF AUTHORITIES
STATEMENT OF THE CASE vil
STATEMENT ON ORAL ARGUMENT vii
ISSUES PRESENTED V111
STATEMENT OF FACTS 1
SUMMARY OF THE ARGUMENT 12
PLEADING STANDARD 13
ARGUMENT 13
ISSUE 1: The trial court conducted prohibited ex parte communication.
ISSUE 2: The trial court abused its discretion in denying Appellant's
motions for continuances. .
ISSUE 3: The trial court erred when it withdrew order of decree bifur
cating the case without notice.
ISSUE 4: The trial court erred when it denied Appellant his right to a
jury trial.
ISSUE 5: The evidence is legally and factually'insufficient to support
the judgment.
ISSUE 6: The trial court abused its discretion erroneously admitting evi
dence .
ISSUE 7: The trial court's findings of fact are legally and factually in
sufficient.
ISSUE 8: The trial court abused its discretion in refusing to rule on Ap
pellant's motion for issuance of a bench warrant.
PRAYER - 49
CERTIFICATE OF SERVICE 49
n.
INDEX OF AUTHORITIES
CASE LAW
Abdygapparova v. State, 243 S.W.3d 191(Tex.App.-San Antonio 2007)... 14,16
Baxla v. Baxla, 522 S.W.2d 736(Tex.Civ.App.-Dallas 1975, no writ) 35
Blake v. Lewis, 886 S.W.2d 404(Tex.App.-Houston[lst Dist,] 1994) ... 19,27
Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48(Tex.2002) 18
Boyd v. Boyd, 131 S.W.3d 605(Tex.App.-Fort Worth 2004) 37
Catalina v. Blasdel, .881 S.W.2d 295(Tex.l994) 45
City of Brownsville v. Alvarado, 897 S.W.2d 750(Tex.l995) 42
City, of Houston v. Cotton, 171 S.W.3d 541(Tex.App.-Houston[14th Dist.]
--2005, pet. denied) 47
City of Keller v. Wilson, 168 S.W.3d 802(Tex.2005) 37,40
Clemons v. Citizens Med. Center, 54 S.W.3d 463(Tex.App.-Corpus Oiristi
--2001) passim
Cusack v. Cusack, 491 S.W.2d 714(Tex.Civ.App.-Corpus Oiristi, 1973
—writ dism'd w.o.j .) 35,38
Dodd v. Dodd, 17 S.W.3d 714(Tex.App.-Houston[lst Dist.]2000) 47
Dow Chem. Co. v. Francis, 46 S.W.3d 237(Tex.2001) 38,41
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238(Tex.l985) 37
Dyer v. Dyer, no. 02-10-00171-CV, 2011 Tex.App.LEXIS 5017(Tex.App.-
—Fort Worth 2011)(not desig. for pub.) 37,38
Ellason v. Ellason, 162 S.W.3d 833(Tex.App.-Dallas 2005) 13,17
Erskine v. Baker, 22 S.W.3d 537(Tex.App.-El Paso 2000, pet. denied). 17
Granger v. Granger, 236 S.W.3d 852(Tex.App.-Tyler 2007, pet. denied) 37,40
Green v. TDPRS, 25 S.W.3d 213(Tex.App.-El Paso 2000, pet. denied) .. passim
Halsell v. Dehoyos, 810 S.W.2d 371(Tex.1991) 31,33
Hardin v. Hardin, 932 S.W.2d 566(Tex.App.-Tyler 1995, no writ) passim
Huddle v. Huddle, 696 S.W.2d 895(Tex.l985) 30,33
iii.
In re Doe, 19 S.W.3d 249(Tex.2001) 30,33
In re D.R., 177 S.W.3d 574(Tex.App.-Houston[lst Dist.] 2005, pet.
—denied) 34
In re Easton, 203 S.W.3d 438(Tex.App.-Houston[d4th Dist.] 2006) 14,17
In re G.F.O., 874 S.W.2d 729(Tex.App.-Houston[lst Dist.] 1994) 44
In re marriage of Beach, 97 S.W.3d 706(Tex.App.-Dallas 2003, no pet.) 38,39
In re marriage of Richards, 991 S.W.2d 32(Tex.App.-Amarillo 1999) ... passim
In re Thoma, 873 S.W.2d 477(Tex.Rev.Trib. 1994, no appeal) 13,14,16
In re Z.L.T., 124 S.W.3d 163(Tex.2003) 33
IPC0-G. & C. Joint Venture v. A.B. Chance Co., 65 S.W.3d 252(Tex.
--App.-Houston[lst Dist.] 2000, pet. denied) 13,16
Isassi v. State, 330 S.W.3d 633(Tex.Crim.App,2010) 17-
Joe v. TWo Thirty Nine Joint Venture, 145 S.W.3d 150(Tex.2004) 18,
Krishman v. Ramirez, 42 S.W.3d 205(Tex.App.-Corpus Oiristi 2001, pet.
—denied) 34
Lindsey v. Lindsey, 965 S.W.2d 589(Tex.App.-El Paso 1998, no pet.) .. passim
Martin v. Martin, 776 S.W.2d 572(Tex.l989) 30,33
Misigario v. Bassowou, 02-10-00473-CV, 2012 Tex.App. LEXIS 467(Tex.
—App.-Fort Worth 2012)(not desig. for pub.) 38,39
Nance v. Nance, 904 S.W.2d 890(Tex.App.-Corpus Christi 1995, no writ) 47
Nissan Motor Co. v. Armstrong, 145 S.W.3d 131(Tex.2004) 42
Office of the Atty. Gen. v. Burton, 369 S.W.3d 173(Tex.2012) 36
Owen-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35(Tex.l998) 42
Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339(Tex.App.-Corpus
—Oiristi 1997) 47
Pegasus Energy Grp. v. Cheyenne Pet. Co., 3 S.W.3d 112(Tex.App.-
—Corpus Christi 1999, pet. denied) 47
IV.
Pharo v. Chambers County, 893 S.W.2d 264(Tex.App.-Houston[lstd)ist.]
—1995, reh'g denied) 13,17
Fhifer v. Nacogdoches Cty. Appr,. Dist., 45 S.W.3d 159(Tex.App.-
—Tyler, 2000, pet. denied) 20,26
Phillips v. Phillips, 75 S.W.3d 563(Tex.App.-Beaumont 2002) 16
Pride Pet. v. Criswell, 924 S.W.2d 720(Tex.App.-El Paso 1996) 20
Puntarelli v. Peterson, 405 S.W.3d 131(Tex.App.-Houston[lst Dist.]
—2013) 31,33,34
Ringer v. Kimball, 274 S.W.3d 865(Tex.App.-Fort Worth 2008, no pet.) 48
Rymer v. Lewis, 206 S.W.3d 732(Tex.App.-Dallas 2011, pet. denied) 17
Service Corp. v. Guerra, 348 S.W.3d 221(Tex.2011) passim
Sheikh v. Sheikh, 248 S.W.3d 381(Tex.App.-Houston[lst Dist.] 2007) 12
Southern Farm Bur. Cas. Ins. v. Penland, 923 S.W.2d 758(Tex.App.-
--Corpus Christi 1996, no writ) .. 31
Spigener v. Wallis, 80 S.W.3d 174(Tex.App.-Waco 2002) 13,14
State Farm Ins. v. Pults, 850 S.W.2d 691(Tex.App.-Corpus Christi,
—1993, no writ) 20,26
Sterner v. Marathon Oil Co., 767 S.W.2d 686(Tex,1989) 12
Stone v. Morris, 546 F.2d 730(5th Cir.1976) 48
Strong v. Strong, 350 S.W.3d 759(Tex.App.-Dallas 2011, pet. denied), passim
Szczepanik v. First Southern Trust Co., 883 S.W.2d 648(Tex.l989) 36
Taylor v. Taylor, 63 S.W.3d 93(Tex.2001) 30
U.S. Gov't v. Marks, 949 S.W.2d 320(Tex.l997) 13,16
Vardilos v. Vardilos, 219 S.W.3d 920(Tex.App.-Dallas 2007) 31
Villegas v. Carter, 711 S.W.2d 624(Tex.l986) 22,26
Watson v. Watson, 286 S.W.3d 519(Tex.App.-Fort Worth 2009) 37,39
Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 667(Tex.l987) 38,45,46
v.
INDEX OF AUIHORITIES(cont,d)
Zuniga v. Zuniga, 13 S.W.3d 798(Tex.App.-San Antonio 1999) 48
CONSTITUTION
U.S. Const. Amend. 7 30,33
U.S. Const. Amend. 14 passim
Tex. Const. Art. 1, § 10 13
Tex. Const. Art. 1, § 15 30,33
Tex. Const. Art. 1, § 19 - passim
RULES
Tex. R. Civ. Pro. 166a 33
Tex. R. Civ. Pro. 190.2 25,27
Tex. R. Civ. Pro. 215 passim
Tex. R. Civ. Pro. 216a 30,33
Tex. R. civ. Pro. 217 30
Tex. R. Civ. Pro. 245 passim
Tex. R. Civ. Pro. 251 22
Tex. R. App. Pro. 33.1(a)(1) 19*30,41
Tex. R. App. Pro. 33.1(a)(2)(A) 20,26,33
Tex. R. App. Pro. 33.1(d) 36
Tex. R. App. Pro. 44.1(a)(1) passim
Tex. R. Evid. 901(b)(3) {£
STATUTES
Tex. Fam. Code § 6.001 passim
Tex. Fam. code § 6.703 30,33
Tex. Pen. Code § 36.04 i47i7
OTHER
Tex. Code Judicial Conduct 3(B)(8) 13
Tex. Disciplinary Rules of Professional Conduct 3.05(b) 14,16,17
vi.
STATEMENT OF THE CASE
Appellee sued Appellant for a divorce.(CR1:8). Appellant filed an original
answer with a general denial.(CR1:20). Appellant subsequently filed a second a-
mended original answer with affirmative defense and counterclaim.(CR1:127). The
case was set for a contested divorce hearing.(CR1:84). After a one-day nonjury
trial, the court granted Appellee a divorce entering a final decree, but bifur
cated a seperate hearing on division of property.(CRl:156-57). Appellant filed
a motion for new trial.(CR1:172).
A hearing was set for division of property only.(CRl:167). The court upon
calling the case, rescinded its prior divorce decree, to hear the entire divorce
again.(CR1:223). After a one-day nonjury trial, the court again granted Appellee
a divorce entering a final decree, and ordered Appellee to pay Appellant $500.00
for a vehicle.(CRl:222-25). Appellant filed a second motion for new trial.(CRl:
226-32).
Appellant filed requests for findings of fact and conclusions of law with
past-due notices after both hearings.(CRl: 162-63, 170-71, 215-16, 217-18 and
235-36). Appellant filed for a formal.bill of exceptions.(CRl:237-77, 294-96).
The trial court files late findings of fact and conclusions of law.(CRl:297-99).
This appeal followed.
STATEMENT ON ORAL ARGUMENT
Appellant believes that this Court should grant oral argument for the fol
lowing reasons:
a. Oral argument would give the Court a more complete understanding of
the facts presented in this appeal. Tex. R. App. P. 39.1(c). The facts
presented in this case are complex due to the proceedings that occured
in the trial court.
b. Oral argument would significantly aid the Court in deciding this
case. Tex. R. App. P. 38.1(e), 39.1(d). The trial court initially en
tered a final decree bifucating for property issues, subsequently with
drew its order, and reheard the case anew. Complex issues would be bet
ter developed upon enlightening this court with the circumstances sur
rounding the two hearings.
vii.
Appellant requests his appearance for oral argument before this Court via
the use of telephonic conferencing technology in accordance with Tex. Gov't
Code § 73.003(e), as provided by Tex. Gov't Code 22.302.1 Should this Court de
cide oral argument is warranted, by would want Appellant to appear in person,
he would then waive oral argument. Appellant does not wish to appear in per
son.
ISSUES PRESENTED FOR REVIEW
ISSUE 1: The trial court conducted prohibited ex parte communication.
ISSUE 2: The trial court abused its discretion in denying Appellant's motions
for continuances.
ISSUE 3: The trial court erred when it withdrew prior order of decree without
notice.
ISSUE 4: The trial court erred when it denied Appellant his right to a jury
trial.
ISSUE 5: The evidence is legally and factually insufficient to support the
judgment.
ISSUE 6: The trial court abused its discretion erroneously admitting evidence.
ISSUE 7: The trial court's findings of fact are legally and factually insuffi
cient .
ISSUE 8: The trial court abused its discretion in refusing to rule on Appel
lant's motion for issuance of a bench warrant.
See Local Rules, Thirteenth Court of Appeals, Practicing Before the Court,
No. 4 Submission and Oral Argument.
vm.
STATEMENT OF FACTS
I. The marriage. Appellee, Robin Michelle Nealy married Appellant, Frankie
Wayne Nealy on January 9, 2009.(CRl:9). Appellant was on deferred adjudication
community supervision at the time of marriage.(P.Ex.A). Appellee was aware of
the plea and probation at the time of marriage.(CRl:25).
II. Appellant.'s. probation; revocation;. Appellant was arrested on a motion to
revoke his probation on February 11,2011.(RR2:19). After a hearing, the trial
court revoked Appellant's probation and sentenced.him to prison on April 13,
2011.(P.Ex.A). Appellee was present at the revocation hearing.(CRl:25). Appel
lant's criminal appeal lawyer filed a motion for new trial with affidavits in
support on May 9, 2011.(CRl:27-30). Appellee signed one of these affidavits on
._♦* May 4, 2011.(CRl:25).
III. Appellant's transfer^to prison. Appellant was transferred to prison on
June 15, 2011.(RR2:15). Appellee traveled to see Appellant in prison on Octo
ber 15 and 16, 2011.(CR1:31, 179);(RR3:23). During these contact visits, Appel
lee never advised Appellant their marriage was over, or in discord.(RR3:24). Ap
pellant believed his marriage was solid and wife unwavering after his arrest and
arrival at prison.(RR3:40). Appellant learned for the first time over a phone
call from prison to Appellee, that this was in fact, not true on November 8,
2011.(RR3:40).
IV. The filing.of divorce:and answer. Appellee filed for divorce, appearing
pro se on May 15, 2012.(CR1:8). Appellant filed an original answer of general
denial, affirmative defense with pleadings and exhibits in support, appearing
pro se on May 29, 2012.(CRl:20-34).
V. Preliminary motions;by Appellant. Appellant filed a motion for issuance of
a bench warrant on May 29, 2012.(CRl:37-40). The trial court denied the motion
on June 4, 2012.(CRl:42). Appellant also filed a motion for no-evidence summary
judgment and to dismiss on August 13, 2012.(CRl:61-65). Both motions were denied
1.
on August 20, 2012.(CRl:66-67).
VI. Appellee's delay in prosecuting the case.; Appellee allowed the case to go
unprosecuted for about two years after initiating the suit pro se. cf.(CRl:8);
(CRl:72). After the unwarranted delay of two years, Appellee finally retained
counsel on May 8, 2014.(CRl:72)
VTT. Case settings and pretrial.motions. Appellee's trial counsel(hereinafter
Appellee) filed a motion for docket control conference and serves discovery re
quests on Appellant on May 9, 2014.(CRl:73-80). The trial court set the case for
a contested divorce hearing for July 7, 2014.(CRl:84). Appellee was to appear in
person, while Appellant by telephone conference.(CRl:84). There were no other
pretrial orders entered.(CRl:303-04).
Appellant filed a motion for sanctions on Appellee's groundless motion on
June 3, 2014.(CRl:91-97). Appellant'filed his jury trial demand with unsworn
declaration in support on June 3, 2014.(CRl:103-05). Appellant filed a motion
for continuance to obtain additional discovery on June 3, 2014.(CR1:106-12). Ap
pellant served Appellee requests of first request for admissions, disclosure and
for production on June 3, 2014.(CRl:117). The motion for continuance to obtain
additional discovery was denied on June 5, 2014.(CR1:118).
Appellant served Appellee responses to request for disclosure and second re
quest for admissions on June 6, 2014.(CRl:120). Appellant served Appellee re
sponses to request for admissions on June 13, 2014.(CRl:121). Appellant filed
an unsworn declaration of inventory of property on June 20, 2014.(CRl:122-25).
Appellant filed a second amended original answer of general denial, affirmative
defense and counterclaim on June 20, 2014.(CRl:127-28).
Appellant filed a second motion for issuance of a bench warrant on June 20,
2014.(CRl:129-33). The court never entered a ruling.(CRl:303-04). Appellee fil
ed an answer to Appellant's counterclaim on July 3, 2014.(CRl:141-43). Appellee
served discovery responses to Appellant's request for admissions, disclosure,
2.
production and second request for admissions on July 3, 2014.(CRl:144).
VIII. The July 7th divorce.hearing. On July 7, 2014, the trial court conduct
ed a hearing on the divorce.(RR2generally). Prior to testimony, neither Appel
lee nor Appellant were sworn in.(RR2:3). Appellee testified she was the Petiti
oner in the case.(RR2:3). Appellee testified she was a resident of Texas and
the county for the preceding six months.(RR2:3-4). Appellee testified, that the
marriage had become insupportable due to discord or conflict rendering it irrec-
onciable.(RR2:4). Appellee testified to the date of marriage and seperation.(RR2:
4).
Appellee testified there were no children and none were expected.(RR2:4). Ap
pellee testified there was no protective order and no community property.(RR2:4).
'Appellee testified she sold community property to pay debts and give Appellant
money.(RR2:4). Appellant advised that the call "was cutting in and out."(RR2:4).
Appellee testified all that was left was Appellant's seperate property awaiting
pick-up.(RR2:5). Appellee testified she wanted her name changed.(RR2:5).
Appellee tendered to the court, a certified copy of Appellant's judgment of
conviction out of Nueces County.(RR2:6). Appellant objects on grounds of not re
ceiving a copy prior to trial.(RR2:6). The trial court .initially went to sustain
Appellant's objection, but first asked Appellee had she provided exhibits to Ap
pellant. (RR2:7). Appellee's counsel responded in the negative, arguing they were
public records.(RR2:7). The exhibits were admitted.(RR2:7).
Appellant moved for a continuance on grounds of him not being provided ex
hibits prior to trial, advising the court discovery was largely incomplete.(RR2:
7). The court denied the request for continuance on basis the case had been on
file for over a year.(RR2:7). Appellant questioned the court's ruling.(RR2:8).
The court advised Appellant he had over a year to bring a motion to compel.(RR2:
8). Appellant advised that Appellee left the case unprosecuted for two years
before retaining counsel, and upon request, he timely responded to requests for
3.
discovery, and requested his right to discovery.(RR2:8). Appellee stated she had
been served with discovery and responded.(RR2:8). Appellant testified he had not
received discovery responses.(RR2:8-9).
The court advised it was shown a certified mail- receipt bearing Appellant's
signature.(RR2:9). Appellant testified that particular receipt was only for Ap
pellee's counsel initial contact after being retained, not on the discovery mat
ters in question.(RR2:9). Appellant advised he has timely served and requested
discovery.(RR2:9).
Appellant testified that additional discovery would show Appellee lied, sup
port claims of fraud on community and seperate property and forgery.(RR2:9-10).
Appellee states she has letters in her possession, where Appellant told Appellee
to sell everything.(RR2:10). Appellee stated it was in her response to disclosure
and that it may not have arrived to Appellant in time.(RR2:10). Appellant again
advised the call "was cutting in and out."(RR2:10). Appellant again requests an
oral motion for continuance for discovery purposes.(RR2:11). Appellant advised
the court that several of his motions remain pending.(RR2:11). Appellant advised
he has had no prior opportunity to authenticate or review the material, since he
has not received it.(RR2:ll). Appellant also requested his request for admissions
be deemed admitted on allegations of fraud, and issue of insupportability rend
ered moot.(RR2:ll). The court denied deemed admissions.(RR2:11-12).
The court states discovery by Appellant was not timely.(RR2:12). Appellant
advised his discovery requests were tamely.(RR2:12). Appellant also advised
there were material fact issues, and he presented that to the court with his ori
ginal answer.(RR2:14-15). Appellant testified the sepration date is not correct.
(RR2:15-16). Appellee testified that the marriage was insupportable with no cha
nce of reconciliation.(RR2:18). Appellant testified there was a material fact is
sue before the court.(RR2:19-21). The court and Appellant engaged in a colloquy
concerning the disputed fact issue, his date of arrest, the seperation date and
4.
perjury by Appellee.(RR2:21-23).
The discussion went back to discovery.(RR2:24-25). Appellant advised he did
try to contact Appellee by mail for two years when she was pro se, but his mail
was returned to sender.(RR2:26); see also, (CR1:110-11). Appellant advised that
Appellee had just recently retained counsel, and upon notice and request, he
timely responded and requested discovery.(RR2:26). Appellee stipulated to having
just retained counsel only a mere two months prior to the hearing.(RR2:26). Ap
pellee also conceded to returning Appellant's mail, based on threatning content.
Appellant objects on not being provided discovery of "threatning" letters.(RR2:
27).
The court reversed its position, finding that Appellant had honestly tried
to communicate with Appellee and was unable to until she retained counsel.(RR2:
28). The court acknowledged Appellant was a "sitting duck" after Appellee re-
tained counsel.(RR2:28). The court advised it was under the impression that Ap
pellee's trial counsel had been on the case longer than two months.(RR2:28). The
court however, advised it was granting the divorce, but found merit to Appellant's
argument of not having time for adequate discovery.(RR2:28-29).
Appellant requests all motions before the court have a ruling.(RR2:29); The
court continues to ignore the substance of Appellant's arguments.(RR2:29). The
court advises that a seperate hearing will be held on property issues.(RR2:30).
The court advises Appellant will likely receive discovery in a couple of days.
(RR2:31). The court abruptly concluded the hearing.(RR2:31).
IX. Post-July 7th Hearing. The trial court enters a final decree of divorce,
granting it on insupportability, jury was waived, and ordered a bifurcated tri
al on property.(CRl:157-58). Appellant filed request for findings of fact and
conclusions of law on July 22, 2014.(CRl:162-63). The court sets the case for a
final hearing on property for September 22, 2014.(CRl:167-69). Appellant filed
a notice of past-due findings of fact and conclusions of law on August 12, 2014.
5.
CRl:170-71). Appellant filed a motion for new trial on August 12, 2014..(CRl:172-
92). Appellant filed a second motion for sanctions.(CRl:204-11).
X. The September. 22nd property hearing-pretrial • On September 22, 2014, the
court conducted a hearing on property.(RR3:generally). Appellee and Appellant
were sworn in.(RR3:3). The court stated "[i]t had taken the ruling on July 7th
I guess you would say under advisement and was told that the divorce has been
granted improvidently."(RR3:3). The court further stated "[I] am setting aside
the order of July 7th and today we are here to hear the divorce which does in
clude the division of property."(RR3:3). The court asked if Appellant had any
questions about that.(RR3:3).
Appellant advised he had no prior notice that the court had withdrawn its
original order, and he requested an oral motion for continuance.(RR3:3). The
court advised the case.had been on file since 2012 and denied Appellant's re
quest for continuance.(RR3:4). Appellant then advised.he had pretrial motions to
be heard.(RR3:4). Appellant first advised he had a motion for sanctions.(RR3:4).
The court deferred on it until the case was Appellant's.(RR3:4).
Appellant next advised that just 45 minutes before the hearing, he received
a package containing exhibits from Appellee, that would likely be tendered to
the court.(RR3:5). Appellant advised the exhibits were untimely since this was
material based on his original request for production.(RR3:5). Again, Appellant
requested a continuance, arguing the exhibits were voluminous, were untimely,
that he would seek to challenge on authentication and he needed time to prepare.
(RR3:5). Appellee advised that the exhibits are letters from Appellant's own
handwriting, that she had proof of when they were delivered, and could not con
trol mail delivery at Appellant's prison.(RR3:5). Appellant advised he had just
received them that day.(RR3:6). Appellant also alleges the letters may be fabri
cated, and that this was Appellee's trial counsel's second untimely discovery.
6.
(RR3.-6).
Appellant pointed out that in his timely request for production, that he be
provided all documentation prior to the July hearing.(RR3:6). Appellant advised
they were not.(RR3:6). Appellant advised that now some, two months later, he is '
now being provided discovery from his request in June, despite discovery being
closed.(RR3:6). Appellant also advised he just got the documents just "mere"
hours before the hearing, and no time to prepare.(RR3:6). The court stated Appel
lant's objections were preserved, that he may still object to the admission of
the documents, but denied another request for continuance.(RR3:7).
Appellant then questioned that in light of the rescinded order, would discov
ery reopen.(RR3:7). The court stated-no, that, it was closed per the family code .
and civil procedure rules.(RR3:7). The court and Appellant went into discussion
on discovery, with the court of the understanding a reset was made by agreement.
(RR3:8). Appellant objects to there being no rule 11 motion.(RR3:8). Appellant
also pointed out that the notice of hearing for that day was for property only.
(RR3:9).
Appellant also advised the court that, if the court was going to hear issues
on divorce again, and on property, he asked that his jury trial motion have a
ruling.(RR3:9). Appellant pointed out that there was a material fact issue on
divorce, noting he tendered his declaration.(RR3:9). Appellant argued that if
the entire case was going to be heard anew, he requested his jury trial demand
have a ruling.(RR3:9). Appellee distracts the court's attention by turning it
to issues on exhibits allegedly not before the court.(RR3:9-10). Appellant point
ed out he submitted the only copies of his exhibits to the court under an exhib
it record, giving an explanation as to why Appellee did not receive copies.(RR3:
10).
The court advised the case was set that day for a final hearing on a divor
ce and division of property, where the court again denied Appellant a request
7.
2
for a continuance and proceeding. (RR3:10).
XT. The September 22nd hearing-trial anew. Appellee testified she was the Pet
itioner in the case.(RR3:10). Appellee testified she married Appellant in January
2009.(RR3:10). Appellee testified she had been a resident of Texas and of the
county for the preceding six months.(RR3:11). Appellee testified that her and Ap
pellant stopped living together on February 11, 2011.(RR3:11). Appellee testified
there were no children and none were expected.(RR3:11). Appellee testified there
was no community property left, since she sold it to give Appellant money.(RR3:11)
Appellee testifies she has seperate property.(RR3:12). Appellee asked for her
name to be changed.(RR3:12).
Appellee testified the marriage was. insupportable and no expectation of re
conciliation.(RR3:12). Appellee testified she took money and put in onto Appel
lant's inmate account.(RR3:12). Appellee testified she recognized Petitioner Ex
hibits' A,C, and D as they were "Jpays proving she deposited money onto Appel-
ant's account."(RR3:12-13). Appellant objects arguing he has not been provided
a copy of those exhibits.(RR3:13). The objection is sustained.(RR3:13). Appellee
also testified she recognized Petitioner Exhibits' 1-10, as they were all let
ters from Appellant.(RR3:13).
Appellee recognizes and acknowledges none of the letters specifically re
quest to sell his truck, only to sell his car.(RR3:13-14). Appellee tendered ex
hibit 1 to the court.(RR3:14). Appellant objects on grounds-of authentication.
(RR3:14). After an objection by Appellee, the court corrected Appellant.(RR3:14).
Appellant objects on not being provided exhibits prior to trial.(RR3:15). Exhib
it one is admitted.(RR3:15).
Appellee testified that Petitioner Exhibit.2 is in Appellant's handwriting.
(RR3:15). Appellee testified that it says "Appellant appreciated selling stuff
This particular statement of fact is disputed.(RR5generally);(CR2generally).
to recoop losses."(RR3:15). Appellee tendered exhibit 2 to the court.(RR3:15).
Appellant again objects to. authenticicity and on grounds of not being timely
provided exhibits, as previously noted.(RR3:16). Appellee also testified she rec-
onized Appellant's handwriting in Petitioner Exhibit 3, where it bore Appellant's
signature saying to sell his stuff.(RR3:16). Appellee tendered exhibit 3 to the
court.(RR3:16). Appellant makes a running objection, and will stipulate to the
admission, for purposes of previous exhibits, but challenges on authentication.
(RR3:17). Exhibit three is admitted.(RR3:17). Only three exhibits were admitted.
(RR3:17).
Appellee testified she followed instructions on disposal of property and put
money on Appellant's account.(RR3:17-18). Appellee also testified there was no
community property, and only had seperate property.(RR3:19).
On cross-examination, Appellee testified she understood Appellant's date of
arrest was February 11, 2011.(RR3:19-20). Appellee testified that date was only
the seperation date.(RR3:21). Appellee then testified that the marriage had be
come insupportable not too long after Appellant's arrest.(RR3:21). After further
questioning, Appellee reverses, claiming the marriage was insupportable on the
date of Appellant's arrest.(RR3:22). Appellant pointed out to the court that Ap
pellee was lying.(RR3:22-23).
Appellee testified she remembered driving to Appellant's prison unit in Oc
tober 2011.(RR3:23-24). Appellant asked what was the purposes of that visit.(RR3:
24). Appellee testified she never advised Appellant at those visits that their
marriage was in discord, or over.(RR3:24). Appellant asked Appellee why would
she drive all the way from Corpus Christi to Appellant's prison unit, if their
marriage was over in February 2011.(RR3:24-25). Appellee testified she had no
power of attorney from Appellant.(RR3:26). Appellee testified that the automo
bile titles were signed over to her.(RR3;26-27).
Appellant advises the court he believes he has a right to question Appellee
9.
on issues of insupportability.(RR3:28-29). Appellant points out that Appellee .
belatedly tendered exhibits to ambush Appellant.(RR3:30). Appellant reminded
the court that he just got the exhibits, did not have the appropriate material
with him to challenge insupportability, as he left it in his cell,, since the
court set the case for a property hearing only that day.(RR3:31). Appellant ask
ed if the court issued an order telling him.the hearing was changed.(RR3:31).
The court advised that final hearing was noticied.for July and division of
property on that day, so Appellant was more than prepared than in July.(RR3:31).
The court advised the case was being reheard all over again.(RR3:31). Appellant
was asked to coninuing questioning the witness.(RR3:31).
Appellant asked Appellee on cross-examination if she had copies of the auto
mobile titles.(RR3:31-32). Appellee stated no, and swore that the signatures on
the titles were that of her and Appellant.(RR3:32). Appellant reminds Appellee
that lying under oath can subject her to perjury.(RR3:32). Appellant advised the
court that his requests to Department of Public Safety were being ignored under
a statute, based on his situational status as an inmate.(RR3:32-33). Appellant
asks the court through the interests of justice, he be given an opportunity to
prove perjury.(RR3:33); Appellee objects that Appellant's incarceration is not
her fault.(RR3:33). The court denied the request for a continuance.(RR3:34).
Appellant reminded the court that Appellee untimely provided exhibits and
violated the rules of civil procedure.(RR3:37). Appellant testified the admis
sions he sought to have admitted in July, the responses arrived the next day.(RR3:
37). Appellant advised that Appellee and her counsel deliberately provided the
exhibits late.(RR3:37). Appellant pointed out that Appellee sat on the request
for discovery response of production for 2 months, and sent it a few days before
the hearing.(RR3:38). Appellant then rested his case.(RR3:38).
Closing arguments were heard, where Appellee opened by saying the law allows
a divorce on insupportability, that her client testified Appellant gave his prop-
10.
erty as gifts, and advised to sell his stuff.(RR3:38). Appellant closes by saying
he believed at the time of his arrest, he had a trusting person in his corner.
(RR3:40). Appellant also testified he had proven his wife was lying about the
seperation date, and that she had contradicted herself.(RR3:41).
The court asked Appellee how much she sold the truck for.(RR3:43). Appellee
testified no more than $1,000.00.(RR3:43). The court stated it was granting a di
vorce on insupportability, awarding personal property to the party in possession,
and ordering Appellee to pay Appellant $500.00.(RR3:44). The court granted and ren
dered the divorce on that day.(RR3:44). Appellant questioned the court on outstand
ing motions.(RR3:44-45). The court advised that any previously filed motion regard
ing July 7th became moot as a result of the withdrawn and vacated order.(RR3:45).
XII. Post-September 22nd hearing. Appellant filed subsequent request for find
ing of fact and conclusions of law on September 29, 2014.(CRl:215-16). Appellant
filed subsequent notice of past-due findings of fact, and conclusions of law on Oc
tober 13, 2014.(CRl:222-25). Appellant filed a subsequent motion for new trial on
October 21, 2014.(CRl:226-32). Appellant filed a third notice of past-due findings
of fact and conclusions of law on November 14, 2014.(CRl:235-36).
Appellant filed formal bill of exceptions with exhibits and unsworn declara
tion on November 21, 2014.(CRl:237-77). Appellant filed notice of appeal on Nov
ember 21, 2014.(CR1:278). Appellant filed a motion to find the bill of exception
correct, approve it and file it on January 1, 2015.(CRl:294-95). The trial court
enters findings of fact and conclusions of law on January 7y. 2015.(CRl:297-99).
XII. Reporter Record Issue. On April 8, 2015, this court entered an order of
remand to address an issue of inaccuracy in the reporter's record. On July 13,
2015, a hearing was held.(RR5:generally);(CR2:generally). The facts of a portion
of reporter record volume 3 are in dispute.
PLEADING STANDARD
Although appellate courts liberally construe briefs by pro se litigants, the
11.
courts still hold them to the same standards as licensed attorneys and require
them to comply with all applicable rules of procedure and law. Sterner v. Mara
thon Oil Co., 767 S.W.2d 686,690(Tex.1989); Sheikh v. Sheikh, 248 S.W.3d 381,392
(Tex.App.-Houston[lst Dist.] 2007). Therefore, this brief should be construed
liberally.
SUMMARY OF THE ARGUMENT
Appellant's first argument is the trial judge conducted prohibited ex parte
communication. The trial judge was tadvised the divorce had been granted improvi-
dently, a discussion that was had outside the presence of Appellant.
Appellant's second argument is the trial court abused its discretion when it
denied two motions for continuances. The first was.grounded on the lack of not
ice of the trial court withdrawing its previous bifurcated order. The second was
grounded on Appellee's untimely delivery of discovery material to Appellant.
Appellant's third argument is the trial court withdrew its previous bifurca
ted order without prior notice to Appellant. Appellant was unaware of the trial
'court withdrawing this order, until after the commencement of the September 22
hearing.
Appellant's fourth argument is the trial court denied Appellant his right
to a jury trial. Prior to the commencement of a nonjury trial, Appellant advised
the trial court that a material fact issue existed and demanded a jury trial.
Appellant's fifth argument challenges the legal and factual sufficiency of .
the evidence to support the judgment of a divorce on insupportability. The trial
court abused its discretion in finding that Appellee met her burden to obtain a
divorce on insupportability.
Appellant's sixth argument is the trial court abused its discretion when it
erroneously admitted evidence. The ./trial.court admitted letters allegedly from
Appellant. These letters were the product of a discovery request that were un
timely served and were challenged on authentication.
12.
Appellant's seventh argument challenges the trial court's findings of fact
for legal and factual sufficiency. The trial court's findings of fact are not
supported by the record.
Appellant's last argument is the trial court abused its discretion when it
refused to rule on Appellant's request for a bench warrant.
ARGUMENT
ARGUMENT AND AUTHORITIES.
ISSUE 1: The trial court conducted prohibited ex parte communication.
The trial judges Honorable Starr Boldrick Bauer, conducted prohibited ex-
parte communication, when the judge was advised the divorce had been granted im-
providently, a discussion that was had outside the presence of Appellant.
"The right to a fair and impartial trial is guaranteed by the state constitu
tion." Tex. Const. Art. 1, § 10; Pharo v. Qiambers County, 893 S.W.2d 264(Tex.
App.-Houston[lst Dist.] 1995, reh'g denied). All parties have a right to a fair
and impartial trial before a neutral judge. U.S. Const. Amend. 14; Tex. Const.
Art. 1, § 10; Ellason v. Ellason, 162 S.W.3d 833(Tex.App.-Dallas 2005).
"State law, as in most jurisdictions, looks upon ex parte proceedings with
extreme disfavor." U.S. Gov't v. Marks, 949 S.W.2d 320,325(Tex.1997); IPC0-
G. & C. Joint Venture v. A.B. Chance Co., 65 S.W.3d 252,257(Tex.App.-Houston
[1st Dist.] 2001, pet. denied). "Judges are forbidden to initiate, permit, or
consider either direct, or indirect ex parte communications except in carefully
defined circumstances." Tex. Code Judicial Conduct, Canon 3(B)(8); Marks, 949
S.W.2d at 325; In re Thoma, 873 S.W.2d 477,496(Tex.Rev.Trib.l994, no appeal).
Ex Parte communications are those that involve fewer than all of the parties
who are legally entitled to be present during the discussion of any matter. In
re Thoma, 873 S.W.2d at 496; Spigener v. Wallis, 80 S.W.3d 174,183(Tex.App.-Waco
13.
2002). They are barred in order to ensure that "every person who is legally in
terested in a proceeding [is given the] full right to be heard according to law."
Thoma, 873 S.W.2d at 496. Likewise, because they are inconsistent with the ri
ght of every litigant to be heard and with the principle of maintaining an im
partial judiciary. Abdygapparova v. State, 243 S.W.3d 191,208(Tex.App.-San An
tonio 2007, pet. ref'd).
Lawyers are also prohibited from engaging in ex parte communications with
judges intended to influence consideration of a matter, except in specified in
stances. Tex. Disciplinary Rules of Professional Conduct 3.05(b). When a lawyer
engages in ex parte communication with a court regarding a pending case, it is
always improper, and in some instances, may constitute a criminal offense. Tex.
Pen. Code § 36.04; In re Easton, 203 S.W.3d 438(Tex.App.-Houston[14th Dist.]
2006). With these standards in mind, Appellant now turns to the argument.
The divorce was set for a contested hearing by telephone conference to Appel
ant for July 7, 2014.(CRl:84). After a hotly contested hearing, the trial court
stated it was granting the divorce, but bifurcating a hearing for the property
' claims.(RR2:28-30). A final decree of divorce was filed on July 16, 2014, where
the judgment granted a divorce on ground of insupportability, and ordered a bif
urcated trial for property issues only.(CRl:156-58). The trial court sets the
case for a hearing by telephone conference for property issues only for Septem
ber 22, 2014.(CRl:167-69).
After commencement of the September 22nd hearing, Appellant and Appellee
were sworn in under oath.(RR3:3). The trial court then stated the following:
"For the purposes of the record, Mr. Nealy and Ms. Nealy, I had taken
the ruling on July 7th I guess you would say under advisement and was
[told] that the divorce had been granted improvidently. I am setting
aside my order of July 7th and today we are here to hear the divorce
which does include the division of property; is there any question
about that?"
(RR3:3, 11.13-19).
14.
The record reflects that no other hearings were held after the July 7th
hearing, but prior to the September 22nd.(CRl:84-88,167-69,303-04). Therefore,
any discussion held on whether the July 7th order was correct, was an "off-the-
record" discussion held outside the presence of Appellant. Consequently, Appel
lant accuses Appellee's trial counsel, Mary Rachel.Sheeran(Sheeran), of initia
ting ex parte communication with Honorable Judge Starr Boldrick Bauer(Judge Bau
er), and that, Judge Bauer permitted and engaged in the communication.
Appellant's accusation is supported by the record, where Judge Bauer states
"she had taken the ruling of July 7th under-advisement and was told that the di
vorce had been granted improvidently."(RR3:3, 11.14-16). This statement is indi
cative that someone advised Judge Bauer that her July 7th order was incorrect.
Appellant argues there are only a limited number of people whom can advise
the court as to the legality, or correctness of a ruling or order. Those persons
»
are:
• Petitioner through his/her counsel;
• Petitioner him/herself if acting pro se;
• Respondent through his/her counsel; or
• Respondent him/herself if acting pro se.
This is because only a party to the case has a legal interest in the outcome
of the case. In the case at bar, Appellee was represented by Sheeran, while Ap
pellant represented himself pro se. Since Appellant is incarcerated, he is un
able to engage in any kind of communication with the judge. In fact, Appellant
was unaware that the court had considered and decided its order was incorrect,
since he requested a continuance.(RR3:3, 11.22-25). This leaves only the Appel
lee, or her counsel. Appellant contends that Appellee is ignorant of the law,
leaving only Sheeran to advise and communicate with the court.
Appellant contends that Sheeran initiated the communication at some point
after the conclusion of the July 7th hearing, but no later than September 11,
2014. The record reflects the court making a note in its docket that it was set-
15.
ting aside its order of July 7th on September 11, 2014.(CRl:304). Despite that
notation, no order or notice was ever sent to the parties.(CRl:303-04).
Although Appellant cannot affirmatively prove what the ex parte communica
tion consisted of, he suggests it involved discussion on the trial court's er
ror of bifurcating a trial on property issues after entering a final decree of
divorce, c.f.(CR1:157);(RR3:3, 11.14-16). "It is error for trial court to sev
er issue of divorce from issue of property division, and until property of par
ties has been disposed of, no final divorce judgment exists." Phillips v. Phil
lips, 75 S.W.3d 564,567(Tex.App.-Beaumont 2002). In any event, some form of
discussion was had on the correctness of the trial court's ruling, causing the
court to rescind its order.
Sheeran's initiating contact with Judge Bauer concerning the validity of
the July 7th order, does not fit into one of the carefully defined circumstances
exceptions that allows for ex parte communication. Tex. Code Judicial Conduct,
Canon 3(B)(8). Therefore, Judge Bauer was prohibited from permitting and engag
ing in ex parte contact. Marks, 949 S.W.2d at 325; Thoma, 873 S.W.2d at 496. Con
sequently, Judge Bauer committed an egregious violation of the code of judicial
conduct. Marks, supra; IPCO-G. & C. Joint Venture, 65 S.W.3d at 257.
Moreover, the discussion involved fewer than all parties, since Appellant-
a Respondent in a divorce proceeding, actively engaged in litigation-was legal
ly entitled to be present during the discussion. Thoma, supra; Spigener, 80 S.W.
3d at 183. Appellant's absence allowed discussion about material matters of a
case, affecting the underlying proceedings, and affecting the finality of a pre
vious proceeding and order.
This discussion was also barred because it is inconsistent with the Appel
lant's right ^to be heard and with the principle of maintaining an impartial ju
diciary. Abdygapparova, 243 S.W.3d at 208. Since Appellant was absent, Judge
Bauer was incapable of maintaing an impartial judiciary.Id. This deprived Appel-
16.
lant of a fair and impartial trial. Pharo, 893 S.W.2d at 264.
Likewise, it violated Appellant's right to due process, since Judge Bauer
engaged in communication, rendering the judge incapable of being neutral. U.S.
Const. Amend. 14; Tex. Const. Art. 1, § 19; Ellason, 162 S.W.3d at 833; Rymer
v. Lewis, 206 S.W.3d 732(Tex.App.-Dallas 2006). This is because Judge Bauer's
conversation with Sheeran concerning the validity of the July 7th order in a
pending case was improper. Erskine v. Baker, 22 S.W.3d 537(Tex.App.-El Paso
2000, pet. denied).
Similarily, Sheeran's engaging communication with Judge Bauer on the valid
ity of the July 7th order, was intended to influence consideration of the case,
violating Tex. Disciplinary Rules of Professional Conduct 3.05(b). This conduct
constitutes a criminal offense. Tex. Pen. Code § 36.04(a); Easton, 203 S.W.3d at
438. Appellant argues it was used for an improper purpose with the requiste cor
rupt intention to influence the outcome of the case. Isassi v. State, 330 S.W.3d
633,641(Tex.Crim.App.2010). Appellant also argues it was designed to deprive him
of his right to be heard, and to surprise and ambush an inexperienced pro se lit
igant .
As reflected by Judge Bauer's statement, she was advised that her July 7th
order was granted improvidently.(RR3:3). The decision to rescind that order was
based on the discussion held outside Appellant's presence, that affected the fi
nality of the case.
Accordingly, Appellant argues that the judgment be reversed and the case re
manded for a newv/trial.
ARGUMENT
ISSUE 2: The trial court abused its discretion in denying Appellant's motions'
for continuances.
Appellant made two oral motions' for continuances at trial. The first re
quest was grounded on the lack of notice of the trial court withdrawing its pre-
17.
vious bifurcated trial order. The second was grounded on Appellee's untimely de
livery of discovery material to Appellant.
In Texas, a request for continuance in a civil case is governed by Tex. R.
Civ. Pro. 215, which provides in pertinent part, "No application for continuance
...shall be granted except for sufficient cause supported by affidavit, or by
consent of the parties, or by operation of law." Strong v. Strong, 350 S.W.3d
759,762(Tex.App.-Dallas 2011, pet. denied). When an issue turns on the trial cou
rt's subjective determination, rather than a question of law, the proper standard
of review is abuse of discretion. In re Doe, 19 S.W.3d 249,253(Tex.2000).
The ruling on a motion for continuance is reviewed for abuse of discretion.
Joe v. TWo Thirty Nine Joint Venture, 145 S.W.3d 150,161(Tex.2004); demons v.
Citizens Med. Center, 54 S.W.3d 463(Tex.App.-Corpus Christi 2001). A.trial cou
rt abuses its discretion if it acts arbitrarily or unreasonably, or without ref
erence to any guiding rules and principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.
3d 48,52(Tex.2002); Strong, supra at 763.
When an error regarding the denial of a motion for continuance is reviewed
for abuse of discretion, "the appellate court should engage in a two-prong in
quiry: (1) did the trial court have sufficient information on which to exercise
its discretion, and (2) did the trial court err in its application of discretion."
Lindsey v. Lindsey, 965 S.W.2d 589,592(Tex.App.-El Paso 1998, no pet.). With the
se standards in mind, Appellant now turns to the argument.
a) First motion for continuance.
As noted earlier, the trial court granted a divorce during the July 7th hear
ing, bifurcated a hearing for property, entered a final decree on July 16th, and
set the case for a property hearing for September 22nd, 2014. ante at 14.
After commencement of the September 22nd hearing, Appellant and Appellee were
sworn in.(RR3:3, 11.7-12). The trial court then stated 'it had taken its ruling
on July 7th under "advisement and was told" that the divorce was granted impro-
18.
vidently."(RR3:3, 11.14-16). The trial court then stated "it was setting aside
its July 7th order and hearing the divorce along with property division."(RR3:
3, 11.16-18). The court then asked if Appellant or Appellee had any questions.
(RR3:3, 11.18-19).
Appellant responded, by testifying that "since he had not been given notice
that the court had withdrawn its original order, he requested a continuance to
prepare."(RR3:3, 11.22-25). The court denied the oral motion stating "the case
had been on file since 2012."(RR3:4, 11.1-3).
When a contested case has previously been set for trial, the court may re
set said contested case to a later date.on any reasonable notice to the parties
or by agreement of the parties. Tex. R. Civ. Pro. 245; Hardin v. Hardin, 932
S.W.2d 566(Tex.App.-Tyler 1995, no writ). To preserve error during trial,.a par
ty must raise a valid, specific, and timely objection or motion. Tex. R. App.
Pro. 33.1(a)(1); Service Corp. v. Guerra, 348 S.W.3d 221,224(Tex.2011). A motion
for continuance must be in writing. Green v. TDPRS, 25 S.W.3d 213,218(Tex.App.-
El Paso 2000, no pet.). The motion must state specific facts that support it.
Blake v. Lewis, 886 S.W.2d 404,409(Tex.App.-Houston[lst Dist.]l994, no writ).
The facts in the motion must be verified or supported by affidavit. Strong, 350
S.W.3d at 762.
In the case at bar, a contested setting was entered for July 7, 2014.(CRl:
84). On July 7, 2014, the contested hearing was held, where the court granted
the divorce on insupportability, granted Appellee a name change, and ordered a
bifurcated trial for property.issues only.(RR3:28-30). A final decree of divorce
was entered on July 16, 2014.(CRl:156-58). The case was then set for a final
hearing for property issues only for September 22, 2014.(CRl:167-69). After com
mencement of the September hearing, the court(without prior notice to the part-
ies)withdrew its July 7th order, and heard the divorce again.(RR3:3-44).
19.
The gravamen of Appellant's argument is the trial court's rescission of its
July 7th order after commencement of the September hearing, not only violated
the adequate notice requirement of Tex. R. Civ. Pro. 245, it also violated his
right to due process. U.S. Const. Amend. 14; Tex. Const. Art. 1, § 19; Hardin,
932 S.W.2d at 567. Appellant's request for a continuance was grounded on the
lack of notice required by statute.
As a threshold matter, Appellant recognizes the 36th District Court's local
rules governing continuances, which "require him to present his request at least
10 days prior to trial." See Rule 3.13 - However, that requirement is inappli
cable here, since Appellant's need for a continuance did not arise until after
the September hearing. Moreover, the requirement in Green, supra, that a motion
for continuance be in writing is also inapplicable, since the need for the re
quest did not arise until the September hearing, and that Appellant was appear
ing pro se, by telephone left him no other option but to lodge an oral request.
To that end, an oral motion for continuance was-just and proper under the cir-
cumstances, exempting Appellant from filing a written motion 10 days prior to
trial.
Appellant also recognizes that an oral request generally does not preserve
error. Fhifer v. Nacogdoches Cty. Cent. Appr. Dist., 45 S.W.3d 159,173(Tex.App.-
Tyler 2000, pet. denied). However, Appellant argues that the trial court's ex
press ruling made in open court and transcribed by the court reporter preserves
the error.(RR3:4, 11.1-3); Tex. R. App. Pro. 33.1(a)(2)(A); State Farm Ins. v.
Pults, 850 S.W.2d 691,693(Tex.App.-Corpus.Christi 1993, no writ); Pride Pet.
Servs. v. Criswell, 924 S.W.2d 720,721(Tex.App.-El Paso 1996, writ denied). The
error is preserved for appellate review.
336th Dist. Court Local Rules-Rule 3.13(Motions for Continuances), see Supreme
Court Misc. Docket 05-9017(San.Patricio County).
20.
Based on the lack of notice to Appellant, his request for continuance was
required by operation of law. Tex. R. Civ.: Pro. 245; Hardin, 932 S.W.2d at 567.
Consequently, the trial court abused its discretion in denying the request.de
mons, 54 S.W.3d at 463. The court also acted arbitrary and unreasonable, when
it rationaled denying the request, solely on the basis the case had been on file
since 2012. Strong, 350 S.W.3d at 763. The trial court faulted Appellant for the
delay in prosecution of the case when, in fact, it was Appellee's fault, c.f.
(CR1:8);(CR1:72).
Moreover, the trial court acted without any guiding rules or principles, when
it ignored its -rescission order violated the reasonable notice requirement of
Tex. R. Civ. Pro. 245; Strong, supra. Appellant argues the trial court'had suf
ficient information on which to exercise its discretion, where he had advised
he had no prior notice of the withdrawn order. Therefore, the trial court erred
in its application of discretion, thereby abusing its discretion. Lindsey, 965
S.W.2d at 592. ' ,
Alternatively, should this Court determine that the trial court did not a-
buse its discretion denying the request based on operation of law, Appellant
would then contend it abused its discretion in denying his request on sufficient
cause. Tex. R. Civ. Pro. 215.
Appellant recognizes his request must be supported by affidavit. Strong,
350 S.W.3d at 762. As reflected by the notice of the September hearing, the Ap
pellant believed the case would only proceed on property issues.(CRl:167-69).
When the trial court rescinded its original order constraining the hearing in
September to property issues, an incarcerated, pro se litigant's request for
continuance was just and proper under the circumstances.
It bears repeating that the 36th District Court's local rule 3.13, and the
holding of Green, 25 S.W.3d at 218(request be in writing), are not applicable
here either.
21.
Appellant argues that a continuance was warranted under sufficient cause,
since he had no prior notice the court had withdrawn its order. Appellant con
tends that his request for a continuance was supported by affidavit. Specifi
cally, Appellant posits that since his request and reasoning were made after
he was sworn in, this sworn testimony meets the requirement of Tex. R. Civ.
Pro. 215.(RR3:3, 11.7-11). Appellant's request was made under oath in light of
the trial court's rescission order. This testimony constitutes the equivalency
of an affidavit. Strong, 350 S.W.3d at 762.
Alternatively, it would be unreasonable to require a lay litigant, whom is
incaecerated, appearing by telephone and without the benefit of counsel, to re
quire him to file a sworn affidavit in support of the motion before trial, when
the need for the continuance did not arise until after the commencement of the
September hearing. Villegas v. Carter, 711 S.W.2d 624,626(Tex.1986). To that end,
Appellant contends that he should not be required to file an affidavit under the
circumstances of his request.
Based on the lack of notice to Appellant, his request for continuance was
appropriate under sufficient cause. Tex. R. Civ. Pro. 251; Strong, 350 S.W.3d
at 762. Prior to Appellant's request, no continuances had been granted in the
case.(CRl:303-04). Consequently, the trial court abused its discretion in deny
ing the request. demons, 54 S.W.3d at 463. The court also acted arbitrary and
unreasonable, when it denied the request solely on the basis the case had been
on file since 2012. Strong, Id at 763. The trial court faulted Appellant for
Appellee's lack of diligence in prosecution.of the case, c.f,(CR1:8);(CR1:72).
Moreover, the trial court acted without any guiding rules or principles,
when it ignored its rescission order violated the reasonable notice requirement.
Id. Appellant argues the trial court had sufficient information on which to ex
ercise its discretion, where he advised he needed the continuance in order to
prepare. Therefore, the trial court erred in its application of discretion, th-
22.
ereby abusing its discretion. Lindsey, 965 S.W.2d at 592.
The denial of the request for continuance negatively impacted Appellant's
presentation of his case to the trial court. Since the September hearing was
suppose to be for property issues only, Appellant prepared his case on those
issues alone. This is supported by the record, where Appellant advised the tri
al court he was having problems understanding how the proceeding has "went the
way it has."(RR3:31, 11.1-18). Appellant pointed out.to the court he did not
have any of the "divorce-related" documentation with him, only documents for
property issues.(RR3:31, 11.1-7).
Appellant argues it would be increasingly difficult, if not altogether im
possible, for a pro se, incarcerated litigant whom is appearing by telephone,
to perform "on-his-feet," and from memory, those issues concerning whether the
marriage was supportable. This was precisely the situation Appellant was in. Ap
pellant had filed an original answer to divorce alleging an affirmative defense
of condonation.(CRl:20-34). Appellant filed a second amended original answer rai
sing generally the same issue.(CRl:127.-28). Appellant had also filed with his
original answer, an affidavit from Appellee he contended created a material fact
issue.(CRl:25). However, Appellant was unable to present any of these issues at
trial, because he did not have the material with him, through no fault of his
own.
Given the substantial impairment, Appellee was able to defeat Appellant's
assertion at trial the marriage was supportable, or forgiveness under condona
tion was warranted. Appellant contends the failure to grant the continuance
caused rendition of improper judgment. Tex. R. App. Pro. 44.1(a)(1); Strong, 350
S.W.3d at 763. Accordingly, Appellant argues the"judgment be reversed and the
case remanded for a new trial.
b) Second motion for continuance.
Appellant advised the trial court that he had just received a package from
23.
Sheeran, that contained some exhibits that he believed were to be tendered to
the court just 45 minutes prior to the hearing.(RR3:4, line 25, thru 5, 11.1-7).
Appellant also advised that this material was part of his original request for
production, asking them to be delivered prior to trial so he could prepare his
case.(RR3:5, 11.10-12).
Appellant lodged a request for a motion for continuance on the basis that,
the exhibits were voluminous, he would seek a challenge to them on authentica
tion, and needed the time to prepare.(RR3:5, 11.13-15). The trial court then
asked Sheeran to respond.(RR3:5, line 16).
Sheeran stated the documents she sent, are letters given to her by Appellee,
that were allegedly sent from Appellant and of his own handwriting, where they
contained discussion on property.(RR3:5, 11.17-23). Sheeran also stated she had
proof of when they were sent to Appellant, and that she has no control of when
the prison system delivers Appellant's mail.(RR3:5, 11.23-25).
Appellant equally recognized that he has no control of when mail is deliver
ed to him.(RR3:6, 11.1-3). Appellant reminded the court that he just received
the exhibits "today," would challenge them on authentication, and argued he had
not been provided envelopes with postal marks.(RR3:6, 11.3-5). Appellant contend
ed that they could have been fabricated.(RR3:6, 11.5-6). Appellant also pointed
out that "this would be the second time that Sheeran has belatedly provided" him
documentation.(RR3:6, 11.7-12).
Appellant further pointed out that he timely filed a request for production,
requesting any documents and or exhibits that would be relied upon, but that none
were provided.(RR3:6, 11.13-17). Appellant also pointed out that "now some three
months later" he was being provided documents that he originally requested in
discovery, but that the discovery period was closed prior to the delivery of the
documents.(RR3:6, 11.19-21). Appellant supported his request for a continuance, .
arguing he has had no time to prepare, since the documents were delivered to him
24.
just 45 minutes prior to the hearing.(RR3:6, 11.21-24). The trial court stated
Applicant's objections were preserved, but denied the continuance request.(RR3:
7, 11.5-9).
It is necessary for Appellant to.discuss facts from the July 7bh hearing
and circumstances surrounding the exhibits he had just received at the Septem
ber hearing. On May 9, 2014, Appellee initiated discovery.(CRl:75(). Appellant
then served Appellee inter alia, a request for production on June 3, 2014.(CRl:
117, 252-56). In Appellant's request number 25, he requested production of any
correspondence written from him to Appellee from February 11, 2011 until June
15, 2011.(CRl:255).
Sheeran served a response asserting "no items have been identified after a
diligent search" to numbers 1-15, (CRl:257-61), while refusing to answer numbers
16-46 citing Tex. R. Civ. Pro. 190.2.(CR1:261). On July 7, 2014, a contested
hearing was held.(RR2:generally). Among other things, Appellant advised the tri
al court that he had not received responses to his request for production.(RR2:
7, 11.15-19).
Sheeran advised the court she "had letters from Appellant telling Appellee
to sell everything," showing the court only a response to disclosure.(RR2:10,
11.14-16). After some discussion on various issues, the court went onto hold a
hearing on the divorce.(RR2:11-31).
Nearing the conclusion of this hearing, the court had found merit to Appel
lant's complaint that he had not had time to conduct discovery.(RR2:27-28). Al
though the court found so, it still granted Appellee a divorce, but bifurcated
a hearing for peropty for a later date.(RR2:28). The court advised Appellant if
had not received the discovery responses, he would receive them in "a couple of
days."(RR2:31, 11.14-18).
Turning back to the September 22nd hearing, after the trial court had denied
25.
Appellant's first request for continuance, he would inter alia, request a second
continuance, based on the untimely and voluminous delivery of exhibits to be ten
dered to the court.(RR3:5, 11.8-15). Appellant pointed out that the documenta
tion he just received was the product of his original discovery request.(RR3:5,
11.10-12).
The gravamen of Appellant's argument is a continuance was warranted, where
Appellant showed sufficient cause, since he was untimely provided discovery and
said discovery was voluminous.
It bears repeating that the 36th District Court's local rule 3.13, and the
holding of Green, 25 S.W.3d.at 218(request in writing) are inapplicable here as
well. This is because Appellant's need for a continuance did not arise until just
45 minutes before Appellant was to engage in a telephone hearing. This left Ap
pellant with no choice but to lodge an oral request, for continuance.
Appellant again recognizes an oral request does not preserve error. Fhifer,
45 S.W.3d at 173. However, the trial court's express ruling made in open court
and transcribed by the court reporter preserves the error.(RR3:7, 11.5-9); Tex.
R. App. Pro. 33.1(a)(2)(A); State Farm Ins., 850 S.W.2d at 693. This error is
also preserved for appellate review.
Based on Appellee's untimely and voluminous delivery of discovery material,
Appellant argues a continuance was warranted under sufficient cause. Strong, 350
S.W.3d at 762. Appellant contends his request was supported by affidavit, where
he again.posits that since he was testifying under oath, those facts constitute
the equivalency of an affidavit. Strong, supra.
Alternatively, it would be unreasonable to require a lay litigant, that is
incarcerated and appearing by telephone, whom is appearing pro se, to file a
sworn affidavit in support of the motion before trial, when the need for contin
uance did not arise until just 45 minutes before the hearing. Villegas, 711 S.W.
2d at 626.
26.
Prior to Appellant's request, no continuances had been granted.(CRl:303-04).
Therefore, the trial court abused its discretion. Clemons, 54 S.W.3d at 463. The
trial court also acted arbitrary and unreasonable, when it denied the request,
when Appellant advised he had been untimely delivered discovery. The trial court
even advised Appellant that discovery was closed per the Family Code, prior to
the receipt of the discovery.(RR3:7, 11.16-21).
Although the court was aware of this fact, it denied Appellant a continu
ance, and allowed Appellee to successfully introduce documents that were the pro
duct of discovery. Appellee introduced, and the court allowed three documents,
that were allegedly letters'from Appellant telling Appellee to sell everything.
(RR3:14, 11.10-11; RR3:15, 11.4-6);(RR3:15, 11.24-25;,RR3:16, 11.6-7);(RR3:16,11.
18-19; RR3:17, 11.6-7). This was the subject ofl/Appellant's request for product
ion, that Appellee never served, claiming exemption under Tex. R. Civ. Pro. 190.
2. Appellee also stated at the July 7th hearing, that she had letters from Appel
lant advising Appellee to sell everything.(RR2:10, 11.14-16).
By all appearances, Sheeran had in her possession, the documentation that
she mailed to Appellant on or about September 15, 2014, since before the July
7th hearing. Sheeran "sat on the alleged letters that supposedly were from Ap
pellant until just a few days before a hearing. Appellant did not get these doc
uments until September 22, 2014.(CRl:230-32). Sheeran's actions were calculated
to "ambush" Appellant.
The trial court had a duty to recognize this deceitful disclosure of dis
covery material, but wholly ignored Sheeran's actions.Appellant argues he stated
specific facts in support of his motion. Blake, 886 S.W.2d at 409. Therefore,
the trial court erred in its application of discretion, thereby abusing its dis
cretion. Lindsey, 965 S.W.2d at 592.
The denial of the request negatively impacted Appellant's case. The documen
tation that Appellant received that day, was successfully admitted at trial, des-
if.
pite the fact that he had no time to prepare his case. Appellant argues he is a
layman at law, and as such, cannot successfully move "on-his-feet" during the
combat at trial, if.che has had no opportunity to review the material to determ
ine its admissibility under the rules.of evidence, or relevant case law.
Given the substantial impairment, Appellee was successful in introducing
discovery material that was initially refused to be produced, and then held on
to it until just a few days prior to a hearing. Appellant was unable to assert
any meaningful adverserial test to the evidence, where he contends the failure
to grant the continuance caused rendition of improper judgment. Tex. R. App.
Pro. 44.1(a)(1); Strong, 350 S.W.3d at 763. Accordingly, Appellant argues the
judgment be reversed and the case remanded for a new trial.
ARGUMENT
ISSUE 3: The trial court erred when it withdrew order of decree bifurcating
the case without notice.
The trial court violated Appellant's right to due process and due course of
law, when it withdrew its order of July 7th without notice to Appellant.
As noted earlier, "when a case has previously been set for trial, the court
may reseti.said case to a later date on any reasonable notice to the parties, or
by agreement of the parties." Tex. R. Civ. Pro. 245; Hardin, 932 S.W.2d at 567.
When a trial court does not give a party reasonable notice of a trial setting,
it violates a party's right to due process. U.S. Const. Amend. 14; Tex. Const.
Art. 1, § 19; Hardin, supra; see also In re 475,001.16, 96 S.W.3d 625,627(Tex.
. App.-Houston[lst Dist.] 2002, no pet.); Vining v. Vining, 782 S.W.2d 261(Tex.
App.-Houston[14th Dist.] 1989).
The divorce was set for a contested hearing for July 7, 2014.(CRl:84). Af
ter a hotly contested hearing on July 7th, the trial court granted Appellee a
divorce, but bifurcated a hearing for property issues only.(CRl:156-58);CRl:
167).
28.
After commencement of the September 22nd hearing, the trial court stated
the following:
For the purposes of the record, Mr. Nealy and Ms. Nealy, I had taken
the ruling on July 7th I guess you would say under advisement and was
told that the divorce had been granted improvidently. I am setting a-
side my order of July 7th and today we are here to hear the divorce
which does include the division of property; is there any questions
about that?
(RR3:3, 11.13-19).
The record reflects that no other hearings were held, after the July 7th
hearing, but prior to the September 22nd hearing.(CRl:84-88, 167-69,303-04).
The record further does not reflect that there was any orders entered and sent
to Appellant notifying him that the court had withdrawn its order.(CRl:303-04).
Appellant first learned of the trial court's actions when the trial court put
him on notice, as shown above.
Although the trial court's docket.sheet reflects a notation of the court
withdrawing its order on September 11, 2014, (CRl:304), nowhere in the record
nor in the docket sheet does it reflect Appellant was notified of the rescission
of that order. (CRlgenerally).
The trial court's placing Appellant on notice of its withdrawn order after
commencement of the September 22nd hearing, was wholly inadequate notice of a.
withdrawn order. The court should have, but did not, send to the parties an
order reflecting the trial court's decision.
Consequently, the trial court violated Appellant's right to due process
and due course of law, when it failed to send notice to the parties. U.S. Const.
Amend. 14; Tex. Const. Art. 1, § 19; Hardin, 932 S.W.2d at 567. The require
ments of Tex. R. Civ. Pro. 245 are mandatory. Hardin, 932 S.W.2d at 567.
Appellant contends the error.caused rendition of an improper judgment. Tex.
R. App. Pro. 44.1(a)(1); Service Corp., 348 S.W.3d at 236. Accordingly, Appel
lant contends the judgment should be reversed and the case remanded for a new
29.
trial.
ARGUMENT
ISSUE 4: The trial court erred when it denied Appellant his right to a jury tri
al. .
The trial court violated Appellant's federal and state constitutional right
to a trial by jury, when it proceeded to a nonjury trial. Prior to the commence
ment of the nonjury trial, Appellant advised the trial court that a material is
sue of fact existed, and demanded a jury trial.
The U.S. and state constitutions guarantee the right to a jury trial. U.S.
Const. Amend. 7; Tex. Const. Art. 1, § 15. To receive a jury trial, a party must
have a right to a jury trial and must properly request' a jury under Tex. R. Civ.
Pro. 216(a). Huddle v. Huddle, 696 S.W.2d 895,895(Tex.1985). This constitution
al guarantee is extended to divorce actions in Texas. Tex. Fam. Code § 6.703.
Taylor v. Taylor, 63 S.W.3d 93,99-101(Tex.2001); In re Marriage of Richards, 991
S.W.2d 32,36(Tex.App.-Amarillo 1999, review dismis'd). The only constitutional
limitations on this right, is that the party must demand a trial by jury and pay
the required fee. Id.
"When the jury's verdict is merely advisory, as in issues of property di
vision, child support or possession, there is no right to a jury trial." Martin
v. Martin, 776 S.W.2d 572,574(Tex.1989); Richards, supra at 36. Secondly, "that
error in denying a properly requested jury trial can be harmless if no material
issues of fact exists and an instructed verdict would be justified." Richards,
991 StW.2d at 37.
To make a proper request for a jury1 trial, a party must do two things 30
days before the date the case is set for trial: (1) make a written request for
a jury trial and (2) pay the jury fee or file an affidavit of inability to pay.
Tex. R. Civ. Pro. 216, 217; Huddle, 696 S.W.2d at 895.
The trial court may deny a request for a jury trial filed at least 30 days
30.
before the trial date only if the party opposing it can rebut the presumption
that the request was made a reasonable time before trial. Halsell v. Dehoyos,
810 S.W.2d 371,371(Tex.1991); Southern Farm Bur. Cas. Ins. v.Penland, 923 S.W.
2d 758,760(Tex.App.-Corpus Christi 1996, no writ.) "To oppose a timely request
for a jury trial, the party should file a response showing that a jury trial
will: (1) injure the party, (2) disrupt the court's docket, or (3) interfere
with the^ordinary handling of the court's business." Halsell, Id at 371.
"To preserve an error during trial, a party must raise a valid, specific,
and timely objection." Service Corp., 348 S.W.3d at 224; Puntarelli v. Peter
son, 405 S.W.3d 131,134(Tex.App.-Houston[lst Dist.] 2013); Tex. R. App. Pro.
33.1(a)(1). "To preserve trial court error in conducting a bench trial despite
a party's perfected right to a jury trial, the party must timely object to the
trial court proceeding to a nonjury trial, or affirmatively indicate that it in
tends to exercise its righttto a jury trial." Puntarelli, supra; Vardilos v.
Vardilos, 219 S.W.3d 920,921(Tex.App:-Dallas 2007). With these standards in
mind, Appellant now turns to the argument.
Appellee sued Appellant for a divorce on May 15, 2012.(CR1:8-19). Appellee
alleged that the marriage had become insupportable due to discord or conflict
of personalities that destroys the legitmate ends of the marital relationship
and prevents any reasonable expectation of reconciliation.(CR1:9). Appellant
filed an original answer of general denial, an affirmative defense of condona
tion, and established and supported a material issue of fact-ori/May 29, 2012.
(CRl:20-36).
Appellee retained counsel to represent her in the divorce proceeding on
May 9, 2014.(CR1:72). Sheeran filed a motion for docket control conference and
requested a setting on the case on May 9, 2014.(CRl:73-74). A corrected notice
of setting was entered on June 2, 2014, setting the case for a contested divorce
for July 7, 2014.(CRl:84)v0n June 3rd, 2014, Appellant filed his request for a
31.
jury trial, and asserted indigence in the demand.(CRl:103-04). Appelllant accomp
anied his jury trial demand with an unsworn declaration of inability to pay the
jury fee.(CRl:105).
Appellant filed a second motion for issuance of a bench warrant, so that he
may attend the jury trial.(CRl:129-33). The trial court never ruled on Appel
lant 's bench warrant request.(CR1_303-04). Ultimately, the trial court held a
hearing by telephone on July 7, 2014.(RR2:generally). After a hotly -contested
hearing, the court granted Appellee a divorce on insupportability, but bifurcat
ed a trial for property.(RR2:28-30). A final decree was entered on July 16, 2014.
(CRl:156-58). The case was set for a final hearing on property only for Septem
ber 22, 2014.(CRl_^167-69).
As shown throughout this brief, the court set aside its July 7th order, and
held anew the issue of divorce.(RR3:3, 11.13-19). In light of the trial court's
order of rescission of its July 7th order, Appellant asked, that his jury trial
demand have a ruling.(RR3:9, 11.11-14). Appellant advised the court that a mater
ial issue of fact existed and is in the record.(RR3:9, 11.14-15). Appellant re
minded the court he filed his declaration of inability to pay, again demanding
a ruling on his jury demand.(RR3:9, 11.15-18).
Sheeran distracts the trial court's attention, by making argument on some
exhibits.(RR3:9-10). Sheeran however, neither opposed nor objected to Appel
lant's request for a jury trial.(RR3:9-10). The trial court stated the case had
been reset for a final hearing on divorce and property and denied a request for
continuance and proceeding. (RR3:10, 11.14-17).
Appellant first argues that since the case was a divorce proceeding, he had
^This particular statement of fact is disputed.(RR5). Appellant first contends
the words "jury trial" should be included in the word "proceeding" on page 10
of reporter record vol. 3, line 17.(RR5:5, 11.15-18). Appellant also contends
his objection to the trial court's proceeding to a nonjury trial, is absent
from the record due to poor call quality. Appellant contends the objection sh
ould be reflected immediately following the trial court's statement of it de-
32.
a. constitutional and statutory right to a jury trial. U.S. Const. Amend. 7; Tex.
Const. Art. 1, § 15; Tex. Fam. Code § 6.703; Tex. R. Civ. Pro. 216(a); Huddle,
696 S.W.2d at 895. Since Appellant timely filed and demanded a jury trial, along
with filing an unsworn declaration of inability to pay the jury fee, there were
no constitutional limitations on his right. Richards, 991 S.W.2d at 36.
Moreover, a jury's verdict in this case would not have been advisory, since
Appellant had asserted both an affirmative defense of condonation, and advised
the trial court of a material issue of fact, c.f.(CR1:127-28);(RR3:9, 11.14-15).
Thus, at the time of the request, a constitutional and statutory right.still at
tached to Appellant's jury demand.. Martin, 776 S.W.2d at 574. An instructed ver
dict would not have been proper in this case, rendering the trial court's de
nial of a jury trial harmful. Richards, 991 S.W.2d at 37.
Since the Appellee chose to neither oppose or object to Appellant's request
for a jury trial, she has waived any complaint regarding the issue. Halsell,
810 S.W.2d at 371. If Appellee truly believed that Appellant was not entitled
to a jury trial and the defense and material fact issue were untenable, she cou
ld have, but chose not to, file a summary judgment under Tex. R. Civ. Pro. 166
a. Richards, 991 S.W.2d at 37. Therefore, at the time of Appellant's request,
there were questions of material fact to be resolved, and it was error to deny
the request. Richards, supra at 38.
Based on Appellant's contention that the trial court had denied his request
for a jury trial(RR5:5, 11.15-18), he suggests that the error is preserved for
appellate review. Puntarelli, 405 S.W.3d at 134. Alternatively, Appellant con
tends the error is preserved by an implicit ruling. Tex. R. App. Pro. 33.1(a)
(2)(A); In re Z.L.T., 124 S.W.3d 163,165(Tex.2003). The trial court proceeded
nying his request for a continuance and jury proceeding at page 10 of reporter
record vol. 3, line 17.(RR5:16-17). Appellant asks this court to resolve the
dispute. Appellant also disagrees and objects to the trial court's supplemental
record that he "agreed" with the wording.(CR2:4). The trial court's findings
are refuted by the record.(RR5:18, 11.6-8).
33.
to a nonjury trial despite Appellant having demanded a ruling on his jury tri
al request.(RR3:10, 11.14t-17). This action constitutes an implied ruling pre
serving error. Krishnan v. Ramirez, 42 S.W.3d 205,220 n.3(Tex.App.-Corpus Chris
ti 2001, pet. denied).
Next, once the trial court proceeded to a nonjury trial, Appellant contends
he objected to the action. Appellant initially observes that the reporter rec
ord from September 22nd does not reflect his objection.(RR3:10, line 17). How
ever, this issue is the^subject of an inaccuracy of the reporter record dispute
where Appellant maintains he objected. See footnote 4. Thus, Appellant contends
the error is preserved..Puntarelli, 405 S.W.3d at 134.
Alternatively, Appellant contends that he affirmatively indicated to the
trial court that he intended to exercise his right to a jury trial. Appellant
twice asked the trial court that his jury trial demand have a ruling.(RR3:9,
11.11-18). This statement should be considered sufficient to place the trial
court on notice that Appellant stood on his perfected right to a jury trial.
Puntarelli, supra; In re D.R., 177 S.W.3d 574,580(Tex.App.-Houston[lst Dist.]
2005, pet. denied). Thus, Appellant contends the error is preserved. Id.
This court must determine whether the error in denying Appellant's jury tri
al request warrants reversal. Richards, 991 S.W.2d at 38. That determination re
quires a review of the entire record.Id.
As a threshold matter, Appellant contends that Appellee did not meet the
statutory elements of a "no-fault" divorce. This is a question of fact. Id at
37. There are three questions that must be answered in the affirmative in order
for a petitioner seeking a divorce to obtain one. Those are:
1) Has the marriage become insupportable because of discord or conflict?
2) Has the discord or conflict destroyed the legitmate ends of the mar
riage? and
3) Is there any reasonable expectation of reconciliation?
34.
Richards, supra at 37.
A decree of divorce is mandatory when a party to the marriage alleges in
supportability and the conditions of the statute are met. Id.(quoting Cusack v.
Cusack, 491 S.W.2d 714,716-17(Tex.Civ.App.-Corpus Christi 1973, writ dism'd
w.b.j.)). '*This statement supports the conclusion that a petitioner's allega
tion of insupportability is not enough. They must also establish the other con
ditions of the statute are met, i.e., 'that there is discord or conflict,' 'that
it destroys the legitimate ends of the marriage,' 'and there is no reasonable
expectation of reconciliation.'" Richards, supra.
In the case at bar, the record does not reflect Appellee meeting all the con
ditions of a "no-fault" divorce, as set forth above.
With regard to question 1, although Appellee testified that the marriage was
insupportable, she did not testify as to whether it was based on discord or con
flict. (RR3: 12, 11.10-12). Therefore, Appellee's testimony falls short of the ele
ments required to question 1. This is because the mere allegation of insupport
ability is not enough. Richards, supra.
With regard to question 2, Appellee failed to testify that the discord or
conflict destroyed the legitimate ends of the marriage.(RR3:12). In the absence
of this testimony, Appellee has wholly failed to establish the elements required
by question 2. Richards, supra. -
Consequently, Appellee has failed to meet her burden of establishing the ex
istence of the statutory elements in order to obtain a divorce. Therefore, a de
cree of divorce in this case was not mandatory. Cusack, 491 S.W.2d at 716-17;
Baxla v. Baxla, 522 S.W.2d 736,739(Tex.Civ.App.-Dallas 1975, no writ). Thus, it
was error to deny Appellant's jury trial request. Based on that determination a-
lone, a reversal of the trial court judgment is required. Tex. R. App. Pro. 44.1
(a); Richards, supra at 38.
Appellant however, does not stop there. At the time of his jury trial re-
35.
quest, there were questions of material fact to be resolved. This is reflected
by Appellant's testimony and jury trial request.(RR3:9, 11.14-15). Among the
issues to be resolved, were Appellant's defense of condonation, and an estab
lished and supported claim by Appellant controverting insupportability.(CRl:20-
36); (CRl:127-28).
At the time of Appellant's request for a jury trial, he introduced contro
verting evidence to insupportability. "Where the only evidence before the fact
finder supports but one conclusion, and there is no contrary evidence, an in
structed verdict is proper." Szczepanik v. First Southern Trust Co., 883 S.W.2d
648,649(Tex.1999). Because an instructed verdict would not have been proper at
the conclusion of the final hearing, the error of denying of a jury trial was
harmful. Grossnickle v. Grossnickle, 865 S.W.2d 211,212(Tex.App.-Texarkana 1993,
no writ).
Appellant contends the error caused rendition of an improper judgment. Tex.
R. App. Pro. 44.1(a)(1); Richards, 991 S.W.2d at 38. Accordingly, Appellant con
tends the judgment should be reversed and the case remanded for a new trial.
ARGUMENT
ISSUE 5: The evidence is legally and factually insufficient to support the judg
ment.
Appellant contends that the evidence is insufficient to support the trial
court's decree of granting divorce on insupportability. The trial court abused
its discretion in granting Appellee a divorce.
In a nonjury case, no objection in the trial court is necessary to appeal
based on the legal or factual sufficiency of the evidence. Tex. R. App. Pro.
33.1(d). "A complaint about the legal or factual sufficiency of the evidence
may be made for the first time on appeal." Office of the Atty. Gen, v. Burton,
369 S.W.3d 173,175(Tex.2012). Therefore, this claim is properly before the cou
rt.
36.
"In family law cases, the traditional sufficiency of evidence standard of
review overlaps with the abuse of discretion standard of review; therefore, le
gal and factual insufficiency are not independent grounds of error, but are rel
evant factors in the assessment of whether the trial court abused its discretion."
Watson v. Watson, 286 S.W.3d 519(Tex.App.-Fort Worth 2009); Boyd v. Boyd, 131 S.W.
3d 605(Tex.App.-Fort Worth 2004); Dyer v. Dyer, 02-10-00171-CV, 2011 Tex. App.
LEXIS 5017 at *4(Tex.App.-Fort Worth 2011)(not desig. for pub.)).
"To determine whether there has been an abuse of discretion because the evi
dence is legally and factually insufficient to support the trial court's decis
ion in family law cases, appellate courts engage in a two-prong inquiry: (1) did
the trial court have sufficient evidence upon which to exercise its discretion,
and (2) did the trial court err in its application of that discretion." Watson,
286 S.W.3d at 519.
"The mere fact that a trial judge decides a matter within his discretionary
authority in a different manner than an appellate court would in a similiar cir
cumstance does not demonstrate an abuse of discretion." Downer v. Aquamarine Op
erators Inc., 701 S.W.2d 238,241-42(Tex.1985). "As long as some evidence of a
substantive and probative character exists to support the trial court's discret
ion, there is no abuse of discretion." Granger v. Granger, 236 S.W.3d 852,855-
56(Tex.App.-Tyler 2007, pet. denied).'
"Evidence is legally sufficient when it enables reasonable and fair-minded
people to reach the trial court's judgment under review." Dyer, 2011 Tex. App.
LEXIS 5017 at * 4(Quoting City of Keller v. Wilson, 168 S.W.3d 802,807(Tex.
2005)). "In evaluating the evidence's legal sufficiency, appellate court's cred
it' evidence that reasonably supports the trial court's judgment and disregard
contrary evidence unless a reasonable factfinder could not." City of Keller, 168
S.W.3d at 827. "In determining whether evidence is factually sufficient to sus-
37.
tain a verdict, courts of appeals must weigh all the evidence, both for and a-
gainst the finding." Dow (hem. Co. v. Francis, 46 S.W.3d 237,242(Tex.2001).
"When a reporter's record is a part of the appellate record, findings of
fact are not conclusive, even if unchallenged." Zac Smith & Co. v. Otis Eleva
tor Co., 734 S.W.2d 662,666(Tex.1987). Upon request, the.trial court filed find
ings of fact and conclusions of law.(CRl:297-99). A reporter's record of the
divorce hearing is a part of the appellate record.(RR3:generally). Therefore,
the findings of fact with regard to the divrce are not conclusive. Id.
"The insupportability ground of divorce is set out in section 6.001 of the
family code. This ground, also known as a no-fault divorce, has three elements."
Misigario v. Bassowou, 02-10-00473-CV, 2012 Tex. App. LEXIS 467 at * 5(Tex.App.-
Fort Worth, Jan. 19, 2012)(not desig. for pub.)(quoting Cusack, 491 S.W.2d at
716-17)). These elements are: (1) that the marriage has become insupportable due
to discord or conflict; (2) that the discord or conflict destroys the legitimate
ends of the marriage; and (3) there is no reasonable expectation of reconcilia
tion. Misigario, Id at *5; Dyer, 2011 Tex. App. LEXIS 5017 at *5. The party pe
titioning for a divorce on these grounds has a duty to establish the statutory
elements with adequate evidence. Richards, 991 S.W.2d at 37.
Turning to the argument, although Appellee on direct-examination did testi
fy that the marriage was insupportable, she did not testify as to whether it was
based on discord or conflict.(RR3:12, 11.10-12). Appellee's mere allegation of
insupportability was not enough to meet the statutory requirements. Richards,
supra. Thus, Appellee's testimony falls short of that which is required to es
tablish a prima facie case for a no-fault divorce. In re Marriage of Beach, 97
S.W.3d 706,708(Tex.App.-Dallas 2003, no pet.)(holding that a wife's testimony
that her marriage was irreparable due to discord or conflict of personalities,
together with her testimony that no chance of reconcile, established a prima
facie case for a no-fault divorce)).
38.
aAdditionally, Appellee's testimony fails for another reason. The second ele
ment of the no-fault divorce statute requires that a petitioning party testify
that a discord or conflict destroys the legitimate ends of the marriage. Tex.
Fam. Code § 6.001; Misigario, 2012 Tex. App. LEXIS 467 at * 5. On-'direct-
examination, Appellee never testified that a discord or conflict existed that
destroyed the legitimate ends of the marriage.(RR3:12). In the absence of this
testimony, Appellee has again failed to establish a prima facie case for a no-
fault divorce. Beach, 97 S.W.3d at 708.
In the absence of the required testimony, Appellant argues that Appellee's
testimony is insufficient to establish a prima facie case for a no-fault div
orce. Beach, supra.
Relevant to the argument, is the trial court's findings of fact with regard
to divorce are refuted by the reporter record. The trial court's findings of
fact state "the marriage of Petitioner and Respondent has become insupportable
because of discord or conflict of personalities that destroys the legitimate
ends of the marital relationship and prevents any reasonable expectation of rec
onciliation." (CRl:297, 11 3). At trial however, Appellee never testified that
there was a discord or conflict, or that a discord or conflict destroyed the le
gitimate ends of the marriage.(RR3:12). Thus, the trial court's findings of fact
are erroneous.
The only testimony before the trial court was that the marriage was insup
portable, along with no reasonable expectation of reconciliation. Appellant ar
gues that the trial court did not have sufficient evidence upon which to exer
cise its discretion. Watson, 286 S.W.3d at 519. With what is required of the
no-fault divorce statute, the trial court erred in its application of discret
ion granting Appellee a divorce on ground of insupportability. Watson, supra.
Appellant also argues that there was no evidence of a substantive and proba-
39.
tive character supporting Appellee's testimony. Therefore,. the trial court a-
bused its discretion. Granger, 236 S.W.3d at 855-56.
The only evidence before the trial court concerning Appellee's desire for
divorce, was vacillating responses on the insupportability and seperation dates.
(RR3:19-22). This cannot be considered substantive and probative. Appellee had
also testified that she had drove to Appellant's prison unit in October 2011 for
a visit.(RR3:23, 11.17-22). At this visit however, Appellee never advised Appel
lant that their marriage was over or in discord.(RR3:24, 11.3-18). Given the in
consistent and controverting nature of Appellee's testimony, the trial court a-
bused its discretion in granting the divorce on insupportability. It is also
noteworthy to point out that Appellee failed to introduce any evidence support
ing insupportability, with the exception of the self-serving assertions that in
all respects, do not establish a prima facie case for divorce.
It also bears repeating that Appellee signed an affidavit in support of Ap
pellant's criminal motion for new trial on May 4, 2011.(CR1:25). Appellee filed
a divorce on May 15, 2012, alleging a seperation date of February 11, 2011.(CRl:
9). Ironically, this is the same date as Appellant's arrest.(RR2:19), All this
information was before the trial court at the time of the hearing.
The question remains, if February 11, 2011 was the date the marriage became
insupportable, why did Appellee attest to facts to support Appellant as his wife
that very well may have assisted Appellant in obtaining his freedom on May 4,
2011?
Another questions remains, if February 11, 2011 was the date the marriage
became insupportable, why did Appellee travel some 300 miles one-way to see Ap
pellant, never telling him his marriage to her was over or in discord?
These questions are central to the resolution of the claim. Appellant argues
fairminded people could not reach the same judgment as the trial court did here.
City of Keller, 168 S.W.3d at 807. The evidence is legally and factually insuf-
40.
ficent, as a reasonable factfinder could not disregard the contrary evidence. Id
at 827. The evidence is also factually insufficient, as the weight of the .evi
dence is against the finding of granting a divorce on insupportability. Dow Chem.
Co., 46 S.W.3d at 242.
Accordingly, Appellant contends the judgment should be reversed and the case
remanded for a new trial. Alternatively, Appellant contends the judgment should
be reversed and rendered, finding that the marriage between Appellant and Appel
lee is supportable with reasonable expecation of reconcilation.
ARGUMENT
ISSUE 6: The trial court abused its.discretion erroneously admitting evidence.
Appellant contends the trial court abused its discretion in admitting Appel
lee's three exhibits.
"When objectionable evidence is offered at trial, the party that believes
the evidence is not admissible must object." Clark v. Trailways, 774 S.W.2d 644,
647(Tex.1989). "If a party does not object to the evidence, it waives any error
in its admission." Tex. R. App. Pro. 33.1(a)(1); Service Corp., 348 S.W.3d at
234.
During trial, Appellee tendered exhibit one (Ex.1) to the trial court.(RR3:
14, 11.10-11). Appellant objects to its admission on authenticity and untimely
delivered exhibits.(RR3:14, 11.12-15 thru 15, 11.1-3). The trial court admitted
the evidence, stating the^letter is original and bore Appellant's signature.(RR
3:15, 11.4-6).
Appellee also tendered exhibit two (Ex.2) to the trial court.(RR3:15, 11.24-
25). Appellant again objects to its admission on authenticity and untimely de
livered exhibits.(RR3:16, 11.3-4). The trial court again admitted the evidence.
(RR3:16, line 7).
And lastly, Appellee tendered exhibit three(Ex.3) to the trial court.(RR3:
16, 11.18-19). Appellant again objects to the admission on authenticity.(RR3:
41.
17, 11.2-3).
Appellant contends that his objections to all three exhibits were specific,
and timely objections preserving the errors for appellate review. Service Corp.,
348 S.W.3d at 234.
"The admission and exclusion of evidence is committed to the trial court's
discretion." Strong, 350 S.W.3d at 763(quoting City of Brownsville v. Alvarado,
897 S.W.2d 750,753(Tex.1995). "The trial court abuses its discretion when it acts
without regard for any guiding rules or principles." Owens-Corning Fiberglas
Corp. v. Malone, 972 S.W.2d 35,43(Tex.l998); Strong, supra. An appellate court
must uphold the trial court's evidentiary ruling if there is any legitimate bas
is for doing so. Strong, Id at 763.
To obtain a reversal based on the erroneous admission of evidence, the appel
lant should show three elements: (1) the trial court erroneously admitted eviden
ce, (2) the admitted evidence was crucial to a key issue and was not cumalative
of other evidence, and (3) the error probably caused the rendition of an improper
judgment. Tex. R. App. Pro. 44.1(a)(1); Nissan Motor Co. v. Armstrong, 145 S.W.3d
131,144(Tex.2004); Strong, Id at 764.
If evidence is erroneously admitted, the appellate courts will apply the harm
less-error review under Tex. R. App. Pro. 44.1(a); to determine whether the error
is reversible. Owens-Corning, 972 S.W.2d at 43.
As a threshold matter, Appellant received the three letter exhibits from Ap
pellee just 45 minutes before the September hearing.(RR3:4, line 25 thru 5, 11.
1-7). Appellant had also advised the trial court that this material was part of
his original request for production.(RR3:5, 11.10-12). Appellant also pointed out
this was Appellee's trial counsel's second time to belatedly provide him docu
ments.(RR3:6, 11.7-12).
It is noteworthy to point out that Sheeran had in her possession, letters
given to her by Appellee allegedly from Appellant prior to the July 7th hearing.
42.
(RR2:10, 11.14-15). Appellant even reminded the trial court of this .fact by
testifying that he filed' a request for production, but nothing was ever pro
duced. (RR3:6, 11.13-17). Appellant also pointed out that "now some three mon
ths later" he was being provided documents, despite the fact that the discov
ery period was closed prior to the September hearing.(RR3:6, 11.19-21).
In discussion of this claim, Appellant refers to Appellee's trial exhibits'
one, two and three, collectively as exhibits, since they were all introduced to
refute and defeat Appellant's counterpetition on property issues. Likewise, they
were all objected to on the same basis. Appellant now turns to the argument.
The trial court erred in admitting the exhibits in two ways. First, given
'the untimely delivery of these exhibits, they were precluded from admissibility.
Appellant's objections on that basis was proper in light of the deliberate act
by Sheeran of "ambushing" Appellant. It bears repeating that Appellant, is an in
experienced, pro se litigant. Appellant cannot have known that Appellee was seek
ing to introduce the exhibits well in advance of the trial, since he did not know
of their existence until just 45 minutes prior to the hearing.
Given Appellant's pro se status, he was ill-equipped to handle a situation
such as this, a short-coming not attritutable to him. .This is because Sheeran
"sat on the letters" since before the July 7th hearing.(RR2:10, 11.14-15). This
"surprise" tactic, deprived Appellant of adequate time to prepare his objection
and rebuttals to the admission of the exhibits.
On that basis alone, it was error for the trial court to allow the evidence.
The admitted evidence was crucial to Appellee's case, that it was admitted to
refute claims of fraud, and other issues with property. These exhibits were the
only evidence before the trial court. Appellant argues the three elements have
been met; therefore, the admission of this evidence caused rendition of an im
proper judgment. Strong, Id at 764.
In conducting a harm analysis, Appellant's counterpetition claims were de-
43.
feated solely on Sheeran's egregious violation of the discovery rules. Appellant
timely requested for production, but nothing was ever provided initially, c.f.
(CRl:255, req. numb. 25); (CRl:261-Sheeran noting refusal to answer in perti
nent .part, numb. 25 under Tex. R. Civ. Pro. 190.2). Appellant only learned of
the existence of some letters allegedly from him, only 45 minutes prior to the
hearing.(RR3:4, line 25 thru 5, 11.1-7).
Since the discovery period was closed prior to the September hearing, the
trial court acted without regard to the discovery rules, or to Appellant's ob
jections. The trial court even acknowledged the discovery period was closed
prior to the hearing.(RR3:7, 11.19-21). Appellant contends the trial court abus
ed its discretion in admitting the evidence. Strong, 350 S.W.3d at 763. There
was no legitimate basis for the trial court's evidentiary ruling, rendering this
a reversible error. Service Corp., 348 S.W.3d at 236.
Aside from the untimely delivery of the exhibits, the trial court's admit
ting the exhibits was erroneous, since issues of authenticity were raised by
Appellant prior to their admission. Appellant pointed out that he had just re
ceived the exhibits, and was not provided any copies of the alleged letters en
velopes with postal marks on them.(RR3:6, 11.3-5). Appellant also alleged they
could have been fabricated.(RR3:6, 11.5-6)."
For these exhibits to have been admissible under Tex. R. Evid. 901, authen-
./
tication or identification is required as a condition precedent. In re G.F.O.,
874 S.W.2d 729,731(Tex.App.-Houston[lst Dist.] 1994, no writ). Under 901(b)(3),
the trier of fact is required to compare handwriting and signature of Appellant
to another specimen that was found to be genuine. Tex. R. Evid.. 901(b)(3). The
trial court here, simply said "[Petitioner's Exhibit one is an original let
ter with your signature."(RR3:15, 11.4-5)(emphasis added). The record does not
reflect the trial court conducting a comparsion of handwriting or signature.(RR3:
generally).
44.
As noted earlier, Appellant was ill-equipped to handle a situation like this.
It is clear from the record that Sheeran "sat" on these letters allegedly from
Appellant for approximately three months, and only a mere few days before a hear
ing, decided to send them. Appellant was essentially a "sitting-duck." Appellant
was unable to review case law, or review the rules of evidence prior to the hear
ing to assert a proper challenge.
Appellant argues the three elements have been met; therefore, the admission
of this evidence caused rendition of an improper judgment. Strong, Id at 764. In
conducting harm analysis, Appellant was without an opportunity to examine the ex
hibits well in advance of the trial. Appellant contends the trial court abused
its discretion in admitting the evidence. Id at 763. There was no legitmate bas
is for doing so, rendering this a reversible error. Service Corp., 348 S.W.3d at
236.
Accordingly, Appellant contends the judgment should be reversed and the case
remanded for a new trial.
ARGUMENT
ISSUE 7: The trial court's findings of fact are legally and factually insuffi
cient .
Appellant contends the trial court's findings of fact with regard to Div
orce, Division of Marital Estate, and Marital Estate Reimbursement Claims and
Marital Estate Factors Considered in Just and Right Division of Property is
legally and factually insufficient.
An Appellant should treat the findings of fact as if they were jury findings
and challenge all findings for legal and factual sufficiency. Catalina v. Bias-
del, 881 S.W.2d 295,297(Tex.1994). Where a reporter's record is a part of the
appellate record, findings of fact are not conclusive on appeal. Zac Smith & Co.,
734 S.W.2d at 666.
On the trial court's findings on divorce, Appellant points this court's at-
45.
tention to the argument raised on the sufficiency of the divorce on insupport
ability. ante at 38-41.
On the trial court's findings on division of the marital estate, the court
noted that Appellant owned "one truck(in parts) worth $500.00."(CRl:297). Appel
lant filed an unopposed unsworn declaration of inventory of property.(CRl:122-
26). The findings are erroneous because the only vehicle Appellant owned prior
to the marriage was a 1995 Ford Mustang GT/GTS, valued at an estimated $45,000
market value.(CRl:122, 11 2). Moreover, nowhere in Appellant's unopposed inven
tory of property, nor anywhere else for that matter, was there any evidence that
a vehicle was in parts.(CRlgenerally); (RR2generally);(RR3generally).
The trial court also undercut the value of Appellant's seperate property when
it valued his Ford Mustang at $500 labeling it a Ford Truck, when in fact,.it was
valued at an estimated $45,000. Appellee failed to object at trial, or lodge any
contest to the value of the vehicle. Therefore, she has waived any error regard
ing the issue.
The trial court also ignored Appellant's other seperate property labeled in
tl's 1, 3, 4, 5 and 6. Appellant was only given $500.00 for one vehicle, that
was worth substantially more, and was not given compensation for the other re
maining seperate items. Therefore, the trial court's findings of fact on the di
vision of seperate property is .not supported by the record.
On the trial court's findings on the just and right division of property, Ap
pellant contends the trial court ignored the value of the community estate. In
Appellant's unopposed unsworn declaration of inventory of property, he valued
the community estate to be worth $16,300.(CR1:126). The.trial court only comp-
enstated Appellant for $500.00.(CRl:298). Therefore, the trial court's findings
of fact on the just and right property division is not supported by the record.
Therefore, the trial court's findings of fact are not conclusive. Zac Smith
& Co., 734 S.W.2d at 666.
46.
Appellant also requests that this court conduct de novo review to the trial
court's conclusions of law. Hydrocarbon Efemt. v. Tracker Expl., Inc., 861 S.W.
2d 427,431(Tex.App.-Amarillo 1993, no writ). The trial court's legal conclu
sions are not binding on an" appellate court; appellate courts are free to draw
their own legal conclusions. Pegasus Energy Grp. v. Cheyenne Pet. Co., 3 S.W.3d
112,121(Tex.App.-Corpus Christi 1999, pet. denied). Appellant argues the trial
court's judgment is not supported by the evidence under any correct legal theory.
City of Houston v. cotton, 171 S.W.3d 541,546(Tex.App.-Houston[14th Dist.] 2005,
pet. denied).
ARGUMENT
ISSUE 8: The trial court abused its discretion in refusing to rule on Appellant's
motion for issuance of a bench warrant.
Appellant contends the trial court abused its discretion in refusing to rule
on his second bench warrant request that was timely filed.
"A trial court's decision to grant or deny a prisoner's bench warrant request
is reviewed for an abuse of discretion." Dodd v. Dodd, 17 S.W.3d 714,716(Tex.App.-
Houston[lst Dist.] 2000); Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339,342
(Tex.App.-Corpus Christi 1997, no writ).
A prisoner in Texas has a constitutional right to access to the courts, but
only a qualified right to appear personally at a civil proceeding. Dodd, supra.
In determining whether a personal appearance is warranted, "an appellate court
has held that the trial court must balance', by considering various factors, the
government's interest in protecting the integrity of the correctional system a-
gainst the prisoner's right of access to the courts." Nance v. Nance, 904 S.W.2d
890,892(Tex.App.-Corpus Christi 1995, no writ). Key factors include whether an
inmate is represented by counsel, or pro se, and whether the inmate is a civil
defendant rather than a plaintiff. Dodd, Id at 717.
Appellant in this case was a defendant in a divorce proceeding, whom had
47.
timely filed a demand for a jury trial.(CRl:103-05). At the time of his request,
there were issues of material fact to be resolved. Appellant filed a motion for
issuance of a bench warrant on June 20th, 2014.(CRl:129-33). Appellant articul
ated the reasoning, i.e., effectively argue, present evidence, cross-examine the
Appellee, and allow the factfinder an opportunity to view the credibility and
demeanor of Respondent and Petitioner, or any other witnesses.(CRl:129-30).
Appellant also articulated the Stone .v. Morris factors as set forth in Sto
ne v. Morris, 546 F.2d 730,735-36(5th Cir.1976).(CRl:130-32). Since Appellant
provided the court with information concerning the Stone factors, he argues the
trial court abused its discretion. Ringer v. Kimball, 274 S.W.3d 865,868(Tex.
App.-Fort Worth 2008, no pet.).
In the decree of divorce, the trial court faulted Appellant .for not being
able to get his request for bench warrant approved.(CRl:223). The trial court
stated Appellant's non-appearance is considered by law as a waiver of a jury
trial.(CRl:223). This is not true, and refutted by case law.
Appellant's failure to appear in person at the trial was not intentional or
the result of conscious indifference, but occured only because the trial court
failed to issue a bench warrant. See Zuniga:v. Zuniga, 13 S.W.3d 798,803(Tex.
App.-San Antonio 1999)(holding.Mario's failure to appear or to be heard was not
intentional or the result of conscious indifference, but occured only because
the trial court failed to issue a bench warrant)).
Appellant pursued the only means of requesting a bench warrant by filing
his motion. He was not required to do more. The trial court was aware a jury,
trial demand was in the record. Therefore, Appellant's absence from the trial
in person,-, caused harm to his case, because.he was unable to effectively cross-
examine Appellee, or to adequately present his case.
Accordingly, Appellant contends that the trial court abused its discretion,
and requests that the judgment be reversed and the case remanded for a new trial
48.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this court, reverse and re
mand the case for a new trial. Alternatively, Appellant prays that this court
reverse and render the judgment the trial court should have. Appellant further
prays that this court enter any other relief that is just and equitable.
CERTIFICATE OF SERVICE
I hereby certify that an original of this brief was delivered to prison author
ities for mailing by dropping the same into the prison unit internal mailing
system, for first-class postage pre-paid by U.S. Mail, to the Thirteenth Court
of Appeals, 901 Leopard 10th Floor, Corpus Christi, Texas 78401, and that a
copy of this brief was delivered to prison authorities for mailing by dropping
the same into the prison unit internal mailing system, for first-class postage
pre-paid by U.S. Mail, to Appellee's appeal attorney, Danice Obregon, 802 N.
Carancahua, Ste. 2100 Corpus Christi, Texas 78401, on this the 12th day of
December, 2015.
The mail-box rule for a prisoner has been invoked-*
49.
Frankie Nealy # 1714921
Ellis Unit
1697 FM 980
Huntsville, TX 77343
Thirteenth Court of Appeals
Clerk of the Court
RECEIVED
901 Leopard, 10th Floor
Corpus Christi, TX 78401
DEC 17 2015
December 12, 2015 13th COURT OF APPEALS
RE: 13-14-00689-CV Frankie Nealy v. Robin Nealy
Appellant's brief
Dear Clerk,
Please find enclosed an original of the Appellant's brief. Some time back
I filed a motion to suspend the required copies of the brief, since I am in
carcerated. This motion was granted by the Court.
In a few days, I will be filing a motion to suspend Rule 38.1(k) of the
Tex. R. App. Pro. that requires an appendix in civil cases. I am an inmate in
prison, without access to a photocopy machine.
By copy of this brief, I have served Appellee's appellate counsel. Please
file the brief with the Court at your convenience.
Please note that I placed this letter, Appellant brief and the accompanying
envelope in my prison internal mail system on today, December 12, 2015. This
should invoke the "prisoner mailbox rule."
I thank you for your time and attention to my request. Should you have any
questions, please contact me at the address above.
end.
CC;File
Obregon
Sincerely yours,