Jorge Alberto Rodriguez v. Lizzette S. Rodriguez ( 2019 )

NUMBER 13-18-00170-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JORGE ALBERTO RODRIGUEZ, Appellant,
v.
LIZZETTE S. RODRIGUEZ, Appellee.
On appeal from the 389th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
Appellee Lizzette S. Rodriguez filed for divorce against appellant Jorge Alberto
Rodriguez. In his sole issue on appeal, Jorge argues that the trial court erred by denying
his motion to enforce the Mediated Settlement Agreement (MSA). We affirm.
I. BACKGROUND
On September 2, 2015, Lizzette filed a petition for divorce in addition to a motion
for a temporary restraining order. On September 10, 2015, after a mediation session,
Jorge and Lizzette executed the MSA, which Jorge claims resolved all outstanding issues,
including conservatorship, visitation, and financial support. 1 On October 30, 2015, the
trial court rendered a temporary order, stating in part: “The parties have agreed to the
terms of this order as evidenced by the signatures below.” However, the order did not
recite the terms of the MSA, and MSA was not attached to the temporary order. On April
8, 2016, Jorge filed a motion to enforce the MSA and for entry of judgment; however, the
MSA was again not attached to the motion. The trial court concluded that the MSA was
executed simply for purposes of temporary relief pending final resolution of the case, and
it set the case for a bench trial.
The trial court rendered a judgment which is, according to Jorge, inconsistent with
the MSA. The final divorce decree was signed on February 22, 2018; it makes no
reference to the MSA. On March 19, 2018, Jorge filed a motion for new trial, but once
again failed to attach the MSA. This appeal ensued.
On November 13, 2018, Jorge filed a motion with this Court seeking to supplement
the appellate record with the MSA. We denied the motion because Jorge conceded that
the MSA was never filed with the trial court. Jorge subsequently attached the MSA to his
appellate brief.
II. APPELLATE RECORD
In his sole issue, Jorge complains that the trial court erred by denying his motion
to enforce the MSA.
1 The MSA does not appear in the trial court record.
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A. Standard of Review and Applicable Law
“Documents attached to a brief as an exhibit or appendix, but not appearing in the
appellate record, cannot be considered on appellate review.” Hogg v. Lynch, Chappell &
Alsup, P.C., 480 S.W.3d 767, 773–74 (Tex. App.—El Paso 2015, no pet.) (citing Warriner
v. Warriner, 394 S.W.3d 240, 254 (Tex. App.—El Paso 2012, no pet.)); see Garcia v.
Sasson, 516 S.W.3d 585, 591 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (noting that
attaching documents to a brief does not constitute formal inclusion in the record on
appeal, and those documents cannot be considered by the reviewing court); Robb v.
Horizon Cmtys. Improvement Ass’n, Inc., 417 S.W.3d 585, 589 (Tex. App.—El Paso
2013, no pet.) (same).
In civil cases, reversible error occurs when the complained-of error probably
caused the rendition of an improper judgment or probably prevented the appellant from
properly presenting its case on appeal. See TEX. R. APP. P. 44.1.
B. Analysis
Jorge challenges the trial court’s denial of his motion to enforce the MSA; to
support his argument, he attached the MSA to his appellate brief. More specifically, he
argues that because the MSA satisfied the statutory requirements, he was “entitled to a
judgment that conformed to the [MSA].” However, he concedes that the MSA is not part
of the appellate record. And although Texas Rules of Appellate Procedure
34.5(c) authorizes appellate courts to supplement the record, it does not allow for the
creation of a new trial court record. See Graham v. Pazos De La Torre, 821 S.W.2d 162,
165 (Tex. App.—Corpus Christi–Edinburg 1991, writ denied). Because the MSA was not
admitted as evidence when the trial court made its ruling, allowing supplementation now
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would create a new trial court record. See Intermarque Auto. Prods., Inc. v. Feldman, 21
S.W.3d 544, 547 n.3 (Tex. App.—Texarkana 2000, no pet.). Therefore, we cannot
consider the MSA. See TEX. R. APP. P. 34.1, 34.5; Garcia, 516 S.W.3d at 591; Hogg, 480
S.W.3d at 773–74. Without the MSA before us, we cannot tell how or whether the MSA
actually differs from the final decree. Accordingly, Jorge cannot demonstrate that he
suffered harm or that any alleged error probably caused the rendition of an improper
judgment. See TEX. R. APP. P. 44.1. We overrule his sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Delivered and filed the
25th day of July, 2019.
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