Joseph Van Velzor v. Henry Bradley ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00233-CV
JOSEPH VAN VELZOR APPELLANT
V.
HENRY BRADLEY APPELLEE
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Pro se Appellant Joseph Van Velzor sued Appellee Henry Bradley to
recover $500 that Bradley allegedly “unlawfully appropriated” from Van Velzor.
Bradley generally denied the allegations and responded to Van Velzor’s requests
for admissions and interrogatories. At the final bench trial, both sides appeared
1
See Tex. R. App. P. 47.4.
pro se, and Van Velzor called only one witness—Bradley. The trial court found in
favor of Bradley and ordered that Van Velzor take nothing by his suit.
In his first issue, Van Velzor complains about certain “documents filed in
the case that were ghost written by an attorney.” During his testimony, Bradley
mentioned that an attorney with Legal Aid had helped him respond to Van
Velzor’s discovery requests. Complaining of improper “dual representation,” Van
Velzor objected to Bradley appearing pro se after he had previously been
assisted by the attorney. On appeal, Van Velzor argues that the “use of such
documents were dishonest, misrepresentations before the court, unethical
conduct of an attorney, interference with the administration of justice” and that
the trial court “should have struck defendant’s documents and ordered the
attorney that prepared the documents filed with the court for defendant to appear
and show cause why they should not be sanctioned.”
To the extent that Van Velzor’s argument on appeal comports with his
objections at trial, we fail to see how Bradley’s discovery responses had any
relevance at the final trial because they were never admitted as evidence. See
Ceramic Tile Int’l, Inc. v. Balusek, 137 S.W.3d 722, 724 (Tex. App.—San Antonio
2004, no pet.) (reasoning that pleadings are not evidence unless offered and
admitted as evidence by the trial court); Barnard v. Barnard, 133 S.W.3d 782,
789 (Tex. App.—Fort Worth 2004, pet. denied) (reasoning that while a court may
take judicial notice of its own files, it may not take judicial notice of the truth of the
allegations in its files). Moreover, while hybrid representation is generally not
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permitted, see, e.g., Posner v. Dallas Cnty. Child Welfare Unit of Tex. Dep’t of
Human Servs., 784 S.W.2d 585, 588 (Tex. App.—Eastland 1990, writ denied),
the trial court specifically noted at the outset of the final trial that Bradley was
appearing pro se. That Bradley had received assistance from Legal Aid in the
past did not, ipso facto, mean that he was represented by Legal Aid at the time of
trial, as Van Velzor appears to argue. Van Velzor contends that Bradley’s “unfair
advantage” deprived him of due process, but Van Velzor never objected on due
process grounds. See In re L.M.I., 119 S.W.3d 707, 710‒11 (Tex. 2003), cert.
denied, 541 U.S. 1043 (2004) (reasoning that constitutional arguments must be
preserved for appellate review). We overrule Van Velzor’s first issue.
Van Velzor argues in his second issue that the trial court erred by failing to
stop the trial once he brought his hybrid-representation objection to its attention.
Van Velzor never moved for a continuance or a mistrial, nor does he direct us to
any authority requiring the trial court to sua sponte halt proceedings after
overruling a party’s objection. We overrule Van Velzor’s second issue.
Van Velzor argues in his third issue that he was denied due process
because Bradley “engaged in evasive testimony.” Notwithstanding that he never
raised this issue below, see Tex. R. App. P. 33.1(a), the trial court afforded Van
Velzor an opportunity to make an opening statement, present evidence, and
make a closing argument. If Van Velzor thought that Bradley had testified
evasively, then he could have called himself or another witness to clear up the
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record or provide controverting testimony, but he did not do so. We overrule his
third issue.
In his fourth issue, Van Velzor argues that he was denied a fair trial and
due process because the trial court overruled his objection to Bradley’s opening
statement and prohibited him from questioning Bradley about his criminal record.
Van Velzor never raised fair-trial and due-process arguments in the trial court; he
therefore failed to preserve them for appellate review. See Tex. R. App. P.
33.1(a). To the extent that Van Velzor merely argues that the trial court abused
its discretion by overruling his objection and by prohibiting him from questioning
Bradley about his criminal background, even if the trial court abused its
discretion, the error was unquestionably harmless in light of the entire record.
See Tex. R. App. P. 44.1(a).
Van Velzor argues that the trial court erred by assessing costs against him
because he filed an affidavit of indigence that Bradley never contested. 2 See
Tex. R. Civ. P. 145. To the extent that the judgment requires Van Velzor to pay
any costs, the clerk’s record contains an affidavit of indigence filed by Van Velzor
for purposes of costs on appeal, see Tex. R. App. P. 20.1, not for costs in the
trial court. We overrule Van Velzor’s fourth issue.
2
The final judgment provides that “[c]osts are to be borne by the party
incurring same.”
4
Having overruled all of Van Velzor’s issues, we affirm the trial court’s
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DELIVERED: May 22, 2014
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