in the Estate of Myrtle Marie Brooks ( 2011 )

NUMBER 13-09-00579-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE ESTATE OF MYRTLE MARIE BROOKS, DECEASED
On appeal from the County Court at Law No. 2
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
This is a will contest case. By seven issues, pro se appellant, Melta
Brooks-Cannon, contends the trial court erred when it: (1) failed to recognize the last
will and testament of her grandmother, Myrtle Marie Brooks; (2) allowed jurors to hear
testimony about Myrtle‘s physical and mental capacity from a non-expert witness; (3)
allowed Melta‘s medical history and certain character evidence to be admitted into
evidence; (4) failed to provide clear instructions to the jurors regarding the jury charge;
(5) appointed a guardian ad litem; (6) allowed testimony regarding alleged undue
influence; and (7) did not accept certain medical records regarding Myrtle‘s health and
well-being into evidence. We modify the trial court‘s judgment and affirm as modified.
I. BACKGROUND
Myrtle died at the age of ninety-three in Corpus Christi, Texas. Myrtle was
survived by two sons: Henry Clayton Brooks and Winston Gene Brooks. After their
mother‘s death, Henry and Winston jointly filed an application to be dependent
co-administrators and for issuance of letters of dependent administration. In the
application, Henry and Winston represented that they were Myrtle‘s only living children;
their brothers Connie O‘Neal Brooks and Bobby Joe Brooks had pre-deceased their
mother. Henry and Winston‘s motion also declared that Myrtle died without leaving a
valid will and ―owned real and personal property . . . cash, bank accounts, an automobile,
household furniture, and other personal effects of a probable value in excess of
$50,000.‖ They sought to be joint co-administrators of her estate because there were at
least two debts against the estate, including expenses for Myrtle‘s final illness. Henry
and Winston were appointed co-administrators on October 24, 2006.
On January 11, 2007, Melta filed a motion for new trial. Melta is Myrtle‘s
grand-daughter; her father was the late Connie, brother of Henry and Winston. In her
motion, Melta contended that Myrtle had executed a valid will that named Melta the sole
independent administrator of Myrtle‘s estate. Melta requested that the court set aside
2
the order deeming Henry and Winston co-dependent administrators. In response to
Melta‘s motion, Henry and Winston filed a second application to be appointed dependent
co-administrators. In this second application, Henry and Winston re-urged that their
mother died intestate and argued that Melta possessed an invalid will. In the
alternative, they argued that if Melta in fact possessed a valid will that it was procured
through undue influence.
The trial court denied Melta‘s motion for new trial. However, pursuant to section
83(a) of the Texas Probate Code, the court held a jury trial to consider the will Melta
possessed, along with Henry and Winston‘s application, to determine whether Myrtle
indeed died intestate. See TEX. PROB. CODE ANN. § 83(a) (West 2010).1 During the
trial, Henry testified that Myrtle suffered a slip-and-fall in February 2004 which partially
paralyzed the left side of her body. Upon her doctor‘s recommendation, the family
admitted Myrtle to The Palms Center in Corpus Christi for rehabilitation and daily
assisted life care after her fall. Myrtle was upset about this recommendation and
wanted to simply return home. However, she was ultimately admitted for health
reasons.
1
The statute provides as follows:
If, after an application for the probate of a will or for the appointment of a general personal
representative has been filed, and before such application has been heard, an application
for the probate of a will of the decedent, not theretofore presented for probate, is filed, the
court shall hear both applications together and determine what instrument, if any, should
be admitted to probate, or whether the decedent died intestate.
TEX. PROB. CODE ANN. § 83(a) (West 2010) (emphasis added).
3
Henry stated that he and his wife Ninfa visited his mother at The Palms daily,
because they lived in Corpus Christi. His brother Winston lived in Harker Heights,
Texas, which was about five hours away, so Winston could not visit as often. Henry
soon began to worry about his mother‘s mental health when she mentioned seeing
relatives who had already died and could not remember if she had eaten on a particular
day. He stated that they never discussed a will because Myrtle said her boys would ―do
what‘s right‖ and that her ―boys always [did] the right thing.‖ She treated all of her sons
equally. Henry‘s wife, and Melta‘s aunt, Ninfa Salazar, corroborated this testimony.
She testified that Myrtle told her that she did not need a will because ―everything was for
her boys.‖
Henry testified that he learned his mother had executed a will approximately eight
months before her death. He received a phone call from Winston informing him about
the alleged will. He was ―in awe and shock‖ about the will‘s existence and believed that
the will was his niece Melta‘s idea. He stated that his niece Melta acted ―strange‖
toward him when she first arrived from California to visit his ailing mother at The Palms.
Shortly after that encounter, he found Melta at his mother‘s house reviewing Myrtle‘s car
ownership papers and insurance policies. He soon became concerned about the
purpose of Melta‘s visit when he called The Palms for an update on his mother‘s health
and they refused to release information to him due to HIPAA laws. 2 Apparently, Melta
2
HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. Pub. L. No.
104-191, 110 Stat. 1936 (1996) (codified as amended at 42 U.S.C.A. §§ 1320d-1320d-8 (2007)). The law
provides, among other things, federal protections for personal health information held by covered entities
4
had had Myrtle sign a power of attorney which allowed only Melta and another cousin
access to Myrtle‘s medical records and denied access to anyone else. Henry testified
that Melta moved into his mother‘s home while Myrtle was recovering at The Palms and
that he paid for repairs to the refrigerator and water heater at his mother‘s house during
this time. He also loaned Melta his vehicle and gave her money for food. After
Myrtle‘s death, Henry explained that someone from American Bank called him. The
bank representative stated that Melta was at the bank trying to liquidate Myrtle‘s account
with a power of attorney document.
Winston testified next. He stated that he was very close to his mother and that,
although he lived further away, he spoke to her on a daily basis and would spend long
weekends with her. He testified that she treated all of her children equally and did not
favor anyone in particular. Winston testified that his mother was progressing nicely at
The Palms until Melta visited from California. At that point, he stated that ―it just
snowballed downhill.‖ He stated that Palms nurses complained that Melta was
interfering with their care of Myrtle—she complained about what they were feeding
Myrtle and left constant harassing notes on a blackboard in Myrtle‘s room. He testified
that Melta was ―hostile‖ toward him and the nursing staff—she ―scream[ed], hollered[ed]‖
and was ―belligerent.‖ He was very upset when Melta obtained the power of attorney,
which prevented him from receiving information about his mother‘s medical care.
and gives patients an array of rights with respect to that information.
5
Winston testified that he confronted Melta about her behavior at The Palms and
said that she needed to stop being a ―paranoid schizophrenic‖ regarding Myrtle‘s care.
He was surprised when Melta responded, ―how did you find out about my medical
record?‖ Winston also discussed how he learned about Myrtle‘s will at trial:
WINSTON: She [Melta] calls me up and she‘s going—she‘s all—I
don‘t know if her meds were off or what. But she‘s
like, I‘m leaving here, goddamn it, and you‘re going to
take care of your own mother. I‘m like, what? Hold
on. Hold on. What are you talking about? [She
said] I‘m leaving and I‘m going to go get this will
changed back and I‘m going to put it back in you and
Henry‘s name. I said, wait a minute, what will?
Well, I have a will and I‘m going to—and then she
hung up.
Winston stated that he was surprised because his mother never discussed a will
with him or his brother. He felt ―if she would have wanted to write a will, Henry and I
would have been notified by [his] mom in some kind of way.‖ At one point, Winston also
stated that he received a call from his mother that concerned him:
WINSTON: She [Myrtle] calls up. It was a strange call because
she was on the other end of the line. She said,
Poochie, Melta is trying to kill me. I‘m like, what?
She‘s messing with my medications. I said, oh, mom.
I‘ll check into it.
Winston also testified that he was disturbed one day when he arrived at his
mother‘s home after she had been released from the Palms. His mother was home
alone with Melta. He testified that his mother had seven to eight duragesic medicine
patches all over her body, and he accused Melta of placing them on her body. Winston
also testified that, over the years, Melta frequently called him for money. She would say
6
she was hungry, so he would wire her money via Western Union.
Minerva Brooks, the late Connie‘s wife and Melta‘s stepmother, testified. She
stated that Melta primarily grew up with her mother in California. Melta later moved to
Texas briefly when her father became ill with cancer. Minerva recalled that during this
time, Melta discussed being treated by a psychiatrist and would have ―split personalities‖
at times. She left four days before her father died but later called to see if her father left
a will and if she was in the will. Minerva also claimed that Melta stole items from her
household, always needed money, and was concerned about Social Security benefits.
A neighbor, Dorothy Frances, testified that she saw Melta moving furniture and boxes
out of Myrtle‘s house while Myrtle was still being treated at The Palms.
Sandra Larson, a licensed social worker who worked at The Palms in 2004,
testified about Myrtle‘s medical condition upon admission. Reviewing Myrtle‘s
admission sheet, Larsen reported that Myrtle suffered from a previous cardiovascular
accident or stroke, was paralyzed on the left side of her body, had hypertension,
osteoarthrosis, reflux sympathetic dystrophy, pleural refusion, and was constipated due
to her pain medications. Larsen testified that she noticed some ―strong signs and
symptoms of depression‖ approximately one month after Myrtle was admitted to the
Palms. Myrtle was also in constant pain because of her arthritis. Larson described
Melta as ―one of the most difficult people that I have ever dealt with.‖ She stated that
several certified nurse assistants requested to be reassigned from caring for Myrtle
because they did not want to suffer Melta‘s ―abuse.‖
7
Melta testified that she grew up in California for most of her life, but lived with her
father and Myrtle in Corpus Christi at one point during high school. At the time of
Myrtle‘s death, she lived in California with her husband and children. Melta left her
family when Myrtle allegedly called her to come and care for her at The Palms. Melta
explained that the reason she was so direct and forthright with the caregivers at The
Palms was because they were giving sub-par care to Myrtle. She alleged that they fed
Myrtle food to which she was allergic, failed to take her to the toilet when requested, and
did not regularly move her which led to bed sores. Melta explained that she did not
attend Myrtle‘s funeral because no one in her family told her when or where it was to be
held. Upon cross-examination, though, she admitted that she left for California the
same day Myrtle died. She also admitted that she left a copy of Myrtle‘s will at a
lawyer‘s office before she left on the plane to California.
Myrtle‘s will named Melta the sole independent executor of her estate. Melta
was also the primary beneficiary of the will: Myrtle bequeathed Melta her furnished
home and vehicle, valued at approximately $50,000. Myrtle‘s only living sons received
less—Henry was left a table, chair, and lamp, while Winston was left a china cabinet.
Other relatives also received certain household items.
The jury found that Myrtle lacked the testamentary capacity to execute a will and
that the will was procured through undue influence. Melta then filed this appeal.
8
II. ANALYSIS
A. The Last Will and Testament of Myrtle
By her first issue, Melta argues that the trial court erred when it ―failed to
recognize the last will and testament of Myrtle Marie Brooks.‖ We construe this issue
as a challenge to the legal and factual sufficiency of the jury‘s findings that Myrtle lacked
the testamentary capacity to execute a will and that her will was procured through undue
influence.
1. Standard of Review and Applicable Law
We may sustain a legal sufficiency challenge only when (1) the record discloses a
complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact; (3) the
evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence
conclusively establishes the opposite of a vital fact. See King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003). In determining whether there is legally sufficient
evidence to support the finding under review, we must consider evidence favorable to
the finding if a reasonable fact finder could and disregard evidence contrary to the finding
unless a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802,
807, 827 (Tex. 2005).
In reviewing an appellant‘s factual sufficiency challenge to an adverse jury finding
on which the other party had the burden of proof, we will consider all of the evidence in
the record, both in support of and contrary to the finding. See Dow Chem. Co. v.
9
Francis, 46 S.W.3d 237, 242 (Tex. 2001). We will set aside the district court‘s finding
only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Where there
are disputed issues of fact, we give deference to the fact-finder as they are the ―sole
judges of credibility of the witnesses and the weight to be given to their testimony.‖
Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex. 1993).
2. Analysis
The evidence shows that Myrtle was ninety-three years old at the time of her
death. She was recovering from a fall that had left her partially paralyzed, and had
several underlying illnesses such as hypertension, osteoarthrosis, and reflux
sympathetic dystrophy to complicate the recovery from her fall. According to various
witnesses, Myrtle was depressed about being admitted to a nursing home to recuperate.
Henry testified that he worried about his mother‘s state of mind when she could not recall
whether she had eaten on a particular day and reported seeing dead relatives. In light
of the foregoing evidence, we hold that a reasonable fact finder could find that Myrtle
lacked the testamentary capacity to execute a will. Myrtle‘s physical and mental
well-being were fragile due to her health problems and medications. The evidence was
legally sufficient to support the jury‘s finding that Myrtle lacked testamentary capacity.
City of Keller, 168 S.W.3d at 827. This finding is also factually sufficient, because it is
not ―so contrary to the overwhelming weight of the evidence as to be clearly wrong and
manifestly unjust.‖ Cain, 709 S.W.2d at 176.
10
Further, the evidence shows that Myrtle‘s two sons, Henry and Winston, were
close to her. They and their wives visited Myrtle at The Palms as often as they could
while she was recuperating. Myrtle had never discussed creating a will because,
according to Henry and Winston, Myrtle knew that her boys would ―do what‘s right.‖
Winston said that Myrtle treated all of her children equally and did not favor any of them.
The testimony regarding Melta indicated that she had financial troubles and frequently
asked for money from her uncles. The evidence also showed that Melta had her
grandmother sign a power of attorney and that Myrtle‘s will left the bulk of the estate to
Melta. There was also testimony that Melta tried to liquidate her grandmother‘s bank
account after her death and that Melta had allegedly stolen items from her stepmother‘s
and grandmother‘s homes.
We hold that a reasonable fact finder could deduce that Melta unduly influenced
her grandmother Myrtle to create a will to devise a disproportionate amount of her estate
to Melta. The evidence showed that Melta isolated Myrtle from her sons and their wives
through a power of attorney document. Melta‘s finances, based on the record,
appeared to be strained, and she received the bulk of Myrtle‘s estate in the will, whereas
Henry received a table, chair, and lamp and Winston received a china cabinet. We
conclude that the evidence was legally sufficient to support the jury‘s finding on undue
influence. City of Keller, 168 S.W.3d at 827. We also conclude that, after considering
all of the evidence in the record, the finding of undue influence is not ―so contrary to the
overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.‖
11
Cain, 709 S.W.2d at 176. Accordingly, the jury‘s finding of undue influence was also
factually sufficient. We overrule Melta‘s first issue.
B. Evidentiary Issues
By issues two, three, six, and seven, Melta challenges the trial court‘s decision
regarding certain evidentiary issues. The admission or exclusion of evidence is a
matter within the trial court‘s discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005)
(citing State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001)). To obtain
reversal of a judgment based on error in the admission or exclusion of evidence, an
appellant must show that the trial court‘s ruling was in error and that the error was
calculated to cause and probably did cause the rendition of an improper judgment.
Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). ―Erroneous
admission of evidence requires reversal only if the error probably (though
not necessarily) resulted in [the rendition of] an improper judgment.‖ Id.; see also TEX.
R. APP. P. 61.1(a). We address each of Melta‘s evidentiary issues in turn.
1. Evidence on Myrtle’s Physical and Mental Capacity
In issue two, Melta argues that the trial court inappropriately allowed jurors to hear
testimony about Myrtle‘s physical and mental capacity from a non-expert witness,
Sandra Larson. Melta specifically complains Larson ―is not a [sic] RN, and is not able to
make a diagnosis‖ regarding whether Myrtle may have lacked the mental capacity to
execute a will.
Pro se litigants must abide by the same standards as licensed attorneys and
12
comply with applicable laws and rules of procedure. See Mansfield State Bank v.
Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Giddens v. Brooks, 92 S.W.3d 878, 880-81
(Tex. App.––Beaumont 2002, pet. denied). ―There cannot be two sets of procedural
rules, one for litigants with counsel and the other for litigants representing themselves.‖
Mansfield, 573 S.W.2d at 185 (citing Stein v. Lewisville Ind. Sch. Dist., 481 S.W.2d 436
(Tex. Civ. App.––Fort Worth 1972, writ ref'd n. r. e.)). Here, Melta failed to object when
Larson testified at length about Myrtle‘s physical and mental capacity. See TEX. R. APP.
P. 38.1 (―As a prerequisite to presenting a complaint for appellate review, the record
must show that the complaint was made to the trial court by a timely request, objection,
or motion . . . .‖). Accordingly, Melta failed to preserve error on this point, and we
overrule this issue. Id.
2. Melta’s Medical History and Character Evidence
In issue three, Melta argues that the trial court erred when it allowed Melta‘s
personal medical history and certain character evidence to be admitted into evidence.
Again, though, Melta failed to timely object when testimony regarding her character was
admitted. Id. For example, while at a bench conference during the testimony of
witness Larson, the following exchange occurred:
[MELTA]: While we‘re here, can I just ask a question?
This evidence, the continuing of evidence
regarding my character, that‘s just all going one
way and is this—
[THE COURT]: You‘re going to have a chance to ask her
questions and you will also have an opportunity
to testify as well.
13
[MELTA]: Okay. But my question is, is this relevant to
the case with regards to her being
incapacitated or undue influence?
[THE COURT]: Well, it‘s already in. So that was something
that should have been brought up before I
admitted it.
Although Melta later timely objected to the admission of certain testimony about
her character evidence, the evidence had already been admitted. To preserve error,
appellant could have requested a running objection or objected to all the testimony
deemed objectionable. See Schwartz v. Forest Pharmaceuticals, Inc., 127 S.W.3d 118,
124-25 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). ―Error in admitting evidence
is cured where the same evidence comes in elsewhere without objection.‖ Id. at 124
(holding that error was waived when the appellant failed to timely object to repeated
references about his alleged litigious nature). Because Melta failed to timely object to
preserve this issue, we overrule issue three.
3. Testimony Regarding Undue Influence
In issue six, Melta contends that the trial court erred when it admitted testimony
regarding alleged undue influence over the creation and execution of Myrtle‘s will. We
overrule this issue on the same basis that we overruled issues two and three. Melta
failed to timely object and thus preserve error when testimony regarding her alleged
undue influence was admitted into evidence. See TEX. R. APP. P. 33.1.
4. Exclusion of Records
In her seventh issue, Melta complains that the trial court did not accept certain
14
documents regarding Myrtle‘s health and well-being into evidence. Based on our
review of the record, we presume that Melta is referring to the medical records from
Jordan Health Services. The record indicates that Melta called the custodian of records
from Jordan Health Services, Patricia Nunez, onto the stand during trial. Henry and
Winston‘s counsel objected to these documents because they were not
self-authenticated. Melta could not establish the proper predicate to authenticate the
documents and, thus, could not offer them into evidence. On the record, Melta stated,
―I just—Your Honor, at this point I think I‘ll just dismiss the witness because I don‘t know
what . . . the predicate is.‖
To complain on appeal that the trial court improperly excluded evidence, the party
must have first preserved error by offering the evidence and securing an adverse ruling
from the trial court. See Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.––El Paso 2002,
no pet.); see also Dean-Groff v. Groff, No. 13-06-085-CV, 2007 Tex. App. LEXIS 8881,
at *14 (Tex. App.––Corpus Christi Nov. 8, 2007, no pet.) (mem. op.). The complaining
party must have complied with Texas Rule of Evidence 103(a)(2) which states that error
may not be predicated upon a ruling that excludes evidence unless, ―the substance of
the evidence was made known to the court by offer, or was apparent from the context
within which questions were asked.‖ TEX. R. EVID. 103(a)(2); see TEX. R. APP. P.
33.1(a)(1); Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex.
App.––Houston [1st Dist.] 1997, no pet.). Without an offer of proof, this Court cannot
determine whether exclusion of the evidence was harmful. Perez, 74 S.W.3d at 66-67.
15
Melta made no offer of proof. Further, she did not offer the excluded evidence
into the record by filing a formal bill of exception within thirty days of filing the notice of
appeal. See TEX. R. APP. P. 33.2. Because we cannot consider the records and
because the substance of the records is not apparent from the record, Melta has failed to
preserve error regarding these reports. See Wade, 961 S.W.2d at 374 (holding that, in
the absence of offer of proof, an appellate court has no basis to review a contention that
the trial court committed reversible error by preventing defendant from introducing
documents). Accordingly, we overrule this issue.
C. Issues Regarding the Jury Charge and Closing Arguments
By her fourth issue, Melta complains that the jury charge ―was not relevant or
consistent to the issues presented in opposition to a will contest.‖ However, during the
charge conference, the trial court specifically asked Melta: ―Do you have any objections
[to the charge]?‖, and Melta replied, ―No. That‘s fine.‖ Accordingly, we hold that Melta
failed to preserve error on this issue. See TEX. R. APP. P. 33.1.
Melta also argues that counsel for Henry and Winston ―continued to give incorrect
and confusing interpretations of the law, and to the jurors regarding ‗yes or no‘ answers,
and the Jurors were still confused when they rendered their decision.‖ We presume
that Melta refers to opposing counsel‘s closing arguments, where counsel offered
guidance on how to answer the jury charge. Melta did not object during counsel‘s
closing arguments, so this sub-issue has also been waived. Id.
16
Melta finally contends that ―the prepared Final Judgment was not consistent with
the juror‘s verdict.‖ The jury charge posed two questions to the jurors in this case.
Question 1 asked the jury the following: ―Do you find from a preponderance of the
evidence that Myrtle Marie Brooks lacked the testamentary capacity to make and sign
her Last Will and Testament?‖ The jurors answered ―Yes‖ to this question. Question 2
asked, ―Do you find from a preponderance of the evidence that the Last Will and
Testament of Myrtle Marie Brooks, dated May 14, 2004, was made as the result of undue
influence exercised by Melta Brooks-Cannon over Myrtle Marie Brooks?‖ The jurors
answered in the affirmative to this question, as well. However, the Final Judgment
states that ―the jury . . . answered ‗No‘ to Question 1, and ‗Yes‘ to Question 2 . . . .‖
This error did not cause the rendition of an improper judgment. See TEX. R. APP.
P. 44.1. The jury found two bases upon which to invalidate the will, but the judgment,
because of a clerical error, only refers to one. Pursuant to Texas Rule of Appellate
Procedure 43.2(b), the remedy for this challenged inconsistency is not to reverse the
judgment, as Melta urges, but to modify the trial court‘s judgment to reflect that the ―jury
answered ‗Yes‘ to Question 1, and ‗Yes‘ to Question 2.‖ See TEX. R. APP. P. 43.2.
Having addressed all of the sub-issues in issue four, we overrule it.
D. The Appointment of an Attorney Ad Litem
Melta‘s fifth issue complains that the court appointed attorney Joe A. Flores as an
attorney ad litem on October 16, 2007, when Henry and Winston filed their application for
determination of heirship. In her brief, Melta argues that Flores‘s ―duties were to
17
represent [Myrtle‘s] heirs.‖ She complains that Flores instead ―reported to the court
regarding [Melta‘s] medical background, and referred to information again that was
obtained illegally . . . i.e. 10-year-old bankruptcy issues and psychiatric medical
background wit to [sic] Bi-polar.‖
Melta‘s appellate point of error is unclear in this regard. See TEX. R. APP. P.
38.1(i). It appears that Melta disagrees with Flores‘s testimony and report in the case.
We note that the only time Flores appears in the record is outside the presence of the
jury when he discussed his appointment with reference to the application for
determination of heirship and his compensation for work done in that regard. Melta also
references a report that Flores submitted to the trial court as part of that appointment, but
Flores‘s report is not in the appellate record. Because neither Flores‘s testimony nor
his report were preserved for this Court to review, we overrule Melta‘s fifth issue. See
TEX. R. APP. P. 33.1.
III. CONCLUSION
Having overruled all of Melta‘s issues on appeal, we modify the clerical error in
the judgment and affirm the judgment of the trial court, as modified.
________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
23rd day of June, 2011.
18