Margarito Martinez v. Cherry Avenue Mobile Home Park , 2003 Tex. App. LEXIS 4289 ( 2003 )

NO. 07-02-0341-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 20, 2003

______________________________



MARGARITO MARTINEZ, APPELLANT

V.

CHERRY AVENUE MOBILE HOME PARK, APPELLEE



_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

NO. 89,815-1; HONORABLE W. F. ROBERTS, JUDGE

_______________________________ OPINION ⁽¹⁾

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

By this appeal, Margarito Martinez challenges the judgment of the trial court awarding Cherry Avenue Mobile Home Park immediate possession of the premises at issue, money damages, court costs, and attorney's fees in the amount of $1,500.00. By his first issue, Martinez contends the trial court erred in granting judgment and in overruling his motion for new trial because he was not provided a meaningful opportunity to be heard, to present evidence on his behalf, to confront witnesses, or to argue his legal position in violation of his state and federal constitutional rights. By his second issue, Martinez alleges the trial court erred in denying his motion for new trial after he presented evidence of: (1) his lack of English comprehension; and (2) a meritorious defense. Such denial, Martinez maintains, constitutes fundamental error and denial of due process because Cherry Avenue failed to rebut his claims by competent evidence. Based upon the rationale expressed herein, we affirm.

In June of 2001, Martinez entered into a written lease with Cherry Avenue to rent a duplex for $375 per month. The original term of the lease was for slightly less than six months, but provided for a month-to-month lease thereafter. On April 6, 2002, Cherry Avenue provided a written notice of its intent to evict Martinez on the basis of non-payment of rent. The eviction notice provided Martinez three days to vacate the premises. Five days later, Cherry Avenue filed an affidavit for forcible detainer in Precinct One Potter County Justice of the Peace Court. When Martinez failed to appear for the hearing on the forcible detainer, the court entered a default judgment in favor of Cherry Avenue for back rent and possession of the premises.

Martinez posted an appeal bond, and the case was placed upon the Potter County Court at Law Number One docket and set for trial on May 10, 2002. In a handwritten pro se general denial filed on May 7, 2001, Martinez requested the court to "be patient w/me as I am not a Texas resident and English is hard for me." He concluded the letter by stating, "[I] will bring my own translator." Cherry Avenue filed a supplemental petition seeking the award of attorney's fees and additional damages.

At a bench trial, the court heard evidence from Cherry Avenue, by and through its attorney, and Martinez, who appeared pro se along with his estranged wife, who acted as a translator. At the conclusion of the evidence, the trial court awarded Cherry Avenue immediate possession of the duplex, money damages, and attorney's fees. Martinez's attorney, hired after trial, filed a motion for new trial, which was overruled by operation of law. In response to Martinez's request, the trial court entered the following findings of fact:

1. Defendant was over one month in arrears in rent on the date of the hearing.

2. Plaintiff was entitled via lease contract to reasonable attorney fees, damages and court costs.

3. Reasonable attorney fees in this case were $1,500.00.

4. Rent was owed in the amount of $375.00 by Defendant at the time of hearing, plus late fees in the amount of $55.00 as well as an unpaid electric bill in the amount of $18.75.

5. Defendant owes Plaintiff additional accrued rent in the amount of $125.00.

Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). Findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards applicable in the review of the sufficiency of the evidence to support a jury finding. Hatteberg v. Hatteberg, 933 S.W.2d 522, 529 (Tex.App.--Houston [1^st Dist] 1994, no writ). Because the findings of fact of the trial court are not challenged on appeal, however, we must accept them as conclusive. See Looney v. Gibraltar Sav. Ass'n, 695 S.W.2d 336, 340 (Tex.App.--Amarillo 1985, no writ).

By his first issue, Martinez contends the trial court erred in overruling his motion for new trial and in granting judgment because he was not provided a meaningful opportunity to be heard, to present evidence, to confront witnesses or to argue his position in violation of his state and federal constitutional rights. ⁽²⁾ We disagree.

To preserve a complaint for review on appeal, the action or omission alleged as error by the trial court must have been the basis of a timely request, objection, or motion specifying the action the trial court was requested to take, or to forebear from taking, and an adverse ruling must have been obtained. See Tex. R. App. P. 33.1(a); see also In re United Supermarkets, Inc., 36 S.W.3d 619, 622 (Tex.App.--Amarillo 2000, no pet.). This rule also applies to the preservation of a constitutional claim of denial of due process. State Bar of Texas v. Leighton, 956 S.W.2d 667, 671 (Tex.App.--San Antonio 1997), pet. denied, 964 S.W.2d 944 (Tex. 1998). Because the record does not show Martinez's contention was timely presented to the trial court, the issue presents nothing for review.

Our review of the record reveals that during Cherry Avenue's presentation of evidence, Ms. Martinez was permitted to cross examine Cherry Avenue's only witness. ⁽³⁾ After sustaining Cherry Avenue's objection to one of her questions, the trial court remarked, "You should have hired a lawyer." The record also shows that after Cherry Avenue rested, Martinez's wife was sworn and testified as a witness. Among other things, she averred, "[w]e are living in a motel and it's costing us daily, $40.00 a day. We don't have a problem with the eviction. We're happy. We're going. We want a week to finish taking the rest of the stuff out."

In his brief, Martinez directs us to no reference in the record demonstrating his contention that he was not provided an opportunity to be heard. Indeed, our review of the record demonstrates the contrary. After the court asked Ms. Martinez if she wanted to call any witnesses, she announced she desired to testify, but made no mention of calling Martinez. Martinez had the right to appear and defend the action "either in person or by an attorney of the Court." Tex. R. Civ. P. 7. Having waived the right to appear by an attorney, however, he is held to the same standards as a licensed attorney. See Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex.App.--Amarillo 1998, pet. denied).

By asserting his opportunity to be heard should have been tailored to his capacity and circumstances, and referring to the trial as a "sham," Martinez implies the trial court erred in failing to appoint an interpreter sua sponte. Public policy, however, demands a judge try a case with absolute impartiality, and not act as an advocate for any party. Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex.App.--Houston [14^th Dist.] 1997, pet. denied). We conclude, therefore, the trial court did not abuse its discretion in denying Martinez's motion for new trial. See Kirk v. Farmers Aerial Spraying Service, Inc., 496 S.W.2d 739, 743 (Tex.Civ.App.--Amarillo 1973, no writ). Martinez's first issue is overruled.

By his second his issue, Martinez asserts the trial court erred in denying his motion for new trial because he adequately demonstrated a lack of English skills along with a meritorious defense. Such denial, he maintains, constitutes fundamental error and a denial of due process. We disagree.

Conceding this issue presents a question of first impression in a civil case, Martinez cites Rule 183 of the Rules of Civil Procedure for the proposition that the trial court should have appointed an interpreter for him. However, Martinez does not cite us to any reference in the record where a motion for the appointment of an interpreter was presented to the trial court, or where any complaint about the trial court's failure to appoint an interpreter was preserved for our review. See Tex. R. App. P. 33.1(a); see also In re United Supermarkets, Inc., 36 S.W.3d at 622. Furthermore, his status as a pro se litigant does not excuse his failure to preserve the complaint for consideration on appeal. See Holt, 990 S.W.2d at 759.

Finally, in his pro se written answer to the court, Martinez stated he would provide his own interpreter. The reporter's record demonstrates his bilingual wife examined the witness and testified as a witness. ⁽⁴⁾ Accordingly, we conclude the trial court did not abuse its discretion in denying the motion for new trial. See Kirk, 496 S.W.2d at 743. Martinez's second issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

1. Tex. R. App. P. 47.2(a).

2. To the extent appellant's argument under this issue is grounded upon his claimed inability to speak and understand the English language, that argument will be considered in our analysis of his second issue.

3. Our review of the record reveals Ms. Martinez is bilingual.

4. Cherry Avenue did not request that a neutral interpreter be appointed.

he purported expert to merely state that the methodology has been accepted and is reliable. Id. at 559-60. Rather, the proponent must illustrate same through substantive evidence, id., sufficient to allow the trial court to "evaluate the methods, analysis, and principles relied upon in reaching the opinion." Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 725-26 (Tex. 1998), quoting, Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997). And, while a myriad of factors have been mentioned as pertinent in assessing reliability, see, E.I. du Pont de Memours & Co. v. Robinson, 923 S.W.2d at 557 (listing six and stating that the list is not exclusive), common sense demands that the evidence proffered to show reliability include the actual methods and principles being debated. Indeed, a trial court can hardly determine if a supposed theory, methodology or principle is reliable if evidence of the particular theory, method, or principle is withheld from it. And, therein lies the problem at bar.

In describing the Abel Assessment, Mack mentions two components. They consist of a supposed "objective" aspect involving reaction time to sexually laced pictures and a subjective aspect involving self-analysis through the completion of a questionnaire. Also discussed is what the person administering the test does with it once it is completed by the subject; the raw data is sent to Dr. Abel in Atlanta, Georgia. ⁽⁴⁾ Mack then describes what he does with the information returned by Dr. Abel. Yet, the sum and substance of evidence describing what Dr. Abel does to the data he receives consists of Mack's testifying that the doctor applies some "formulas" to it and plots the results on graphs. This is of particular import because it is the sum of Abel's work which is then interpreted by individuals such as Mack to derive the subject's sexual deviancy and dangerousness via the "danger registry" and like concepts.

In short, of what the formulas applied by Abel consist, how they were derived, and whether they have ever been subjected to analysis or testing goes utterly unmentioned by Mack or anyone else. For all we know, they and their components could be mathematically based, founded upon indisputable empirical research, or simply the magic of young Harry Potters' mixing potions at the Hogwarts School of Witchcraft and Wizardry. ⁽⁵⁾

Again, Mack simply interpreted the "information" returned from Atlanta. How that undeniably pivotal "information" was contrived or applied by those in Atlanta remains a mystery, given the record before us and the trial court.

Nor did the CPS proffer any evidence explaining the "danger registry" and like concepts utilized by Mack to conclude that Marshall and the youths around him were at "significant" risk. What they were, how they were contrived, and whether they were subjected to critical analysis are also subjects completely left to the imagination of the court. Maybe they too have indisputable scientific basis. Or, maybe they simply accompanied the prophesies of Macbeth's demise floating from the cauldron of the three blind witches. ⁽⁶⁾ We do not know. Nor was the trial court provided with evidence allowing it to make that determination. ⁽⁷⁾

Simply put, the gatekeeper at bar could not "evaluate the methods, analysis, and principles relied upon [by Mack] in reaching [his] opinion" about Marshall Keys without evidence of the various crucial methods and principles underlying that opinion and their accuracy. And, by admitting the alleged expert evidence without that evidence, the trial court abused its discretion. ⁽⁸⁾

Having found error, we next determine its harm, if any. And, in doing so, we cannot deny the emotional effect evidence of pedophilic behavior has on rational human beings. Nor can we deny the emotive effect upon a sane jury of evidence illustrating that the children of the supposed pedophile were at "significant" risk. And, it was this theme of pedophilia and risk to children that comprised a major basis for the relief sought by the CPS. That this is undoubtedly true is exemplified by the agencies opening and closing argument. During the former, it told the jurors about how the Abel Assessment would establish Marshall to be sexually deviant while in its summation it urged how it proved he posed "a significant risk of sexual abuse to these three kids . . . ."

And, that the evidence in question had impact upon Rose Keys is similarly unquestionable. Admittedly, Mack said nothing about her having undergone Abel Assessment. Nevertheless, the CPS used the assessment of Marshall to facilitate their argument that:

[w]hat we showed you and what we told you that we would show you is these children are in danger. They are in danger of sexual abuse by Mr. Keys and Mrs. Keys, one, because he is a perpetrator that is untreated and denies doing anything wrong, and she because she doesn't believe he did anything wrong and she never took any steps to protect her kids from him and wouldn't today.

(Emphasis added). Simply put, the contention that Rose is bad because she would not today protect her children from the sexual predations of Marshall would have no basis without evidence of Marshall's present and future sexual deviancy. And, it was the Abel Assessment, as discussed by Mack, which provided the evidence. At the very least, jurors could reasonably surmise from the testimony of Mack that because Marshall posed a significant risk of sexually preying on his children and Rose would do nothing about it, she too 1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being or 2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being.

In sum, reasonable minds could debate whether a jury would have voted to terminate the parental rights of the Keys had the alleged expert testimony at issue been excluded. Yet, we have no doubt that using the Abel Assessment to categorize Marshall as all but a pedophile who posed "significant" risk to his children (a risk his wife supposedly would not protect them against) assured the outcome desired by the CPS. See Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 737-38 (Tex. App.--Houston [14th Dist.] 2000, no pet.) (holding that an appellant suffers reversible harm when the judgment turns on improperly admitted evidence). So, the inadmissible evidence before us probably caused the rendition of the judgment at bar and resulted in the Keys suffering harm. See Tex. R. App. Proc. 44.1(a)(1) (stating that error warrants reversal when it probably caused the rendition of an improper judgment).

Having sustained the Keys' point regarding Mack's expert testimony, we need not address whether the trial court erred in admitting evidence of Marshall's 1977 conviction. Instead, we reverse the judgment and remand the cause for further proceedings.

Brian Quinn

Justice

Publish.

1. The State offered no evidence indicating that Marshall Keys ever sexually assaulted a male child, adolescent or adult. He had, however, sexually assaulted his minor daughter in 1977.

2.

Mack defined an adolescent as a minor between the ages of 13 to 17.

3.

His words were: "[n]ow, if I'm not able to say that's pedophilic, I won't say its pedophilic, but it's not a situational offender . . . [t]hose are primary sexual interests."

4.

Mack testified that he did not administer the test to Marshall Keys. Nor could he say with certainty that the results which he reviewed were actually those of Keys, though he did indicate that the number assigned to the Keys test comported with the results he analyzed.

5.

J. K. Rowling, Harry Potter and the Sorcerer's Stone (1998).

6.

William Shakespeare, Macbeth, act 4, sc. 1.

7. Indeed, that those who developed the Abel Assessment believe adult heterosexual males who show sexual interest in adolescent females and adult homosexual males who express interest in adolescent males

are normal or non-deviant (as Mack so testified) makes the explanation of their methodology and formulas all the more important.

8. In so holding, we do not categorize the Abel Assessment as inadmissible junk science. We simply conclude that the CPS failed to satisfy

Robinson and its progeny in offering testimony about how it illustrated that Marshall posed a "significant" risk of sexually abusing his children.