Estate of Guadalupe Lopez, Sr. v. . ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00130-CV
ESTATE OF GUADALUPE LOPEZ, SR., Deceased
From the County Court, Jim Wells County, Texas
Trial Court No. 18-07840-PR
Honorable Michael Ventura Garcia, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Liza A. Rodriguez, Justice
Sandee Bryan Marion, Chief Justice (Ret.) 1
Delivered and Filed: March 6, 2024
AFFIRMED
Appellant Guadalupe Lopez, Jr. (hereinafter “Lopez Junior”) appeals from a final
judgment, rendered in accordance with a jury verdict, that determined appellee Elvira Gonzalez
was the surviving spouse of Guadalupe Lopez, Sr. (hereinafter “Lopez Senior”), an individual who
died intestate. In three issues, Lopez Junior complains that the trial court: (1) abused its discretion
in refusing to include three questions in the jury charge that he contends were required under
section 2.401(b) of the Texas Family Code; (2) abused its discretion in overruling his objections
to the admission of opinions rendered by the Honorable Alicia York, a retired family-law judge
1
The Honorable Sandee Bryan Marion, Chief Justice (Retired) of the Fourth Court of Appeals, sitting by assignment
of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
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retained by Gonzalez as an expert in the Texas Family Code; and (3) violated Texas Rule of Civil
Procedure 281 by not sending admitted exhibits to the jury room during the fifteen to twenty
minutes that it took the jury to deliberate. We affirm.
I. BACKGROUND
On March 13, 2018, Lopez Senior was involved in a fatal automobile collision.
Lopez Junior, one of Lopez Senior’s three adult children, filed an application for independent
administration and to determine heirship. The county court granted Lopez Junior’s application,
and it signed a judgment declaring him and his two siblings to be heirs to Lopez Senior’s estate.
On June 19, 2019, Gonzalez filed a petition for bill of review. Gonzalez pleaded that she had been
informally married to Lopez Senior, requested a judgment declaring her to be an heir to
Lopez Senior’s estate, and sought a share of settlement proceeds paid to Lopez Senior’s estate.
Lopez Junior generally denied Gonzalez’s allegations. The county court withheld a ruling on
Gonzalez’s petition for bill of review pending a jury trial on the question of whether Lopez Senior
and Gonzalez had been in an informal (or “common law”) marriage.
At trial, Gonzalez posited that she and Lopez Senior began dating in 1994, that their
relationship quickly blossomed into an informal marriage, and that Lopez Senior served as the
only father figure to her two adolescent daughters from a previous relationship. Gonzalez relied
on, inter alia, her testimony, the testimony of Sandra Olivarez, Lopez Senior’s cousin, and the
opinions of York. She also emphasized two exhibits. First, Gonzalez identified invitations to
quinceañeras that she and Lopez Junior hosted for her two daughters on January 31, 1998, and
September 29, 2001, respectively. In the invitations, which were admitted into evidence,
Gonzalez’s daughters each express thanks for “the loving care, affection and guidance from my
parents Mr. and Mrs. Lupe Lopez.” Second, Gonzalez identified an August 10, 2001 warranty
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deed denoting that “Guadalupe Lopez and wife, Elvira G. Lopez” purchased real property in
Premont, Texas, together. Gonzalez acknowledged that, in 2007, she took a job in Corpus Christi,
Texas, to care for her ailing father. However, Gonzalez maintained that her marriage to
Lopez Senior persisted and that the couple visited each other “many times” on a “continuous”
basis until his death.
Lopez Junior generally asserted that the couple was never informally married and that the
couple’s relationship ended in a separation in 2007. Lopez Junior emphasized that he and his two
adult siblings did not know that Lopez Senior and Gonzalez had been married. He also highlighted
a March 17, 2011 correction special warranty deed that attempted to re-do the real property
transaction and denoted Lopez Senior as “Guadalupe Lopez, a single person.” Lopez Junior
emphasized several financial documents by both Lopez Senior and Gonzalez wherein each
identified as “single.”
At the trial’s conclusion, Lopez Junior offered three questions at the jury charge
conference, those being:
QUESTION NO. 1
Were Elvira Gonzalez and Guadalupe Lopez, Sr. informally married
pursuant to applicable Texas law?
A man and a woman are married if they agreed to be married and
after the agreement they lived together in Texas as husband and wife and
they represented to others that they were married.
Answer “Yes” or “No.”
Answer: ______
If you answered Question No. 1, “yes”, then answer the following Question
2. Otherwise, do not answer Question 2.
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QUESTION NO. 2
Did Elvira Gonzalez and Guadalupe Lopez, Sr. ever separate and cease
living together?
Answer “Yes” or “No.”
Answer: ______
If you answered Question No. 2, “yes”, then answer the following Question
3. Otherwise, do not answer Question 3.
QUESTION NO. 3
Did Elvira Gonzalez and Guadalupe Lopez. Sr. separate and cease living
together on or before February 12, 2017?
Answer “Yes” or “No.”
Answer: ______
The trial court refused all three of Lopez Junior’s proposed questions and accompanying
instructions. Instead, the sole question and accompanying instructions submitted were:
Were Elvira Gonzalez and Guadalupe Lopez (Senior) married before
Guadalupe Lopez’s death on March l3, 2018?
A man and a woman are married if they agreed to be married and
after the agreement they lived together in Texas as husband and wife and
they represented to others that they were married.
The agreement to be married may be shown by circumstantial
evidence such as the conduct of the parties, representing to others the couple
is married, and proof of cohabitation.
Informal marriages, like ceremonial marriages, can only be
dissolved by legal proceedings decreeing annulment or divorce, or by the
death of one spouse. Once the marriage exists, the spouses’ subsequent
denials of the marriage, if disbelieved, do not undo the marriage.
Answer “Yes” or “No.”
Answer: ______
The six-person jury unanimously answered “Yes.”
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The trial court signed a final judgment, in accordance with the jury’s verdict, that granted
Gonzalez’s petition for bill of review and determined that Gonzalez was Lopez Senior’s surviving
spouse. Lopez timely appeals from the trial court’s final judgment.
II. FAMILY CODE SECTION 2.401(B)
At the outset, we note that “the [informal] marriage of a man and woman may be proved
by evidence that . . . [1] the man and woman agreed to be married and [2] after the agreement they
lived together in this state as husband and wife and [3] [while in Texas] represented to others that
they were married.” TEX. FAM. CODE ANN. § 2.401(a)(2). An informal marriage comes into
existence when all three elements are present. In re J.J.F.R., No. 04-15-00751-CV, 2016 WL
3944823, at *3–6 (Tex. App.—San Antonio Jul. 20, 2016, no pet.) (mem. op.). Section 2.401(b)
of the family code provides:
If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2)
is not commenced before the second anniversary of the date on which the parties
separated and ceased living together, it is rebuttably presumed that the parties did
not enter into an agreement to be married.
TEX. FAM. CODE ANN. § 2.401(b).
In Lopez Junior’s first issue, he complains that the trial court abused its discretion in
refusing to include the three questions noted above in the jury charge; he contends that these
questions were required under section 2.401(b) of the family code.
Lopez Junior’s first issue is advanced by two sub-issues. First, he argues that
section 2.401(b) of the family code enshrines a “Morgan-type” presumption that obligated
Gonzalez to secure factual findings that would have been elicited by the three questions that he
offered but that the trial court refused to include in the jury charge. Second, he challenges the
legal and factual sufficiency of the evidence. Specifically, Lopez Junior argues that “[t]he statutory
presumption was triggered because the evidence conclusively established that Gonzalez and
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[Lopez Senior] ceased living together and no legal proceeding was brought to establish any
informal marriage within two years.” This constitutes Lopez Junior’s sole legal sufficiency
challenge. Lopez Junior also argues that Gonzalez failed to present factually sufficient evidence
to both rebut the presumption in section 2.401(b) and sustain the jury’s answer to the only question
submitted to it.
Gonzalez responds by arguing that section 2.401(b) of the family code enshrines a “Thayer-
type presumption” that obligated her to produce legally sufficient evidence. According to
Gonzalez, once she produced legally sufficient evidence to rebut the presumption, “the
presumption disappear[ed] from the case.” Gonzalez argues that the three questions Lopez Junior
contends should have been included in the jury charge “sought legally immaterial answers”
because they “could not alter the effect of the verdict.” Gonzalez also argues that she presented
factually sufficient evidence.
A. Thayer or Morgan Presumption
1. Standard of Review
Lopez Junior’s first sub-issue — whether the presumption in section 2.401(b) is a Thayer
or Morgan presumption — comes to us through an assertion of charge error. “[A] trial judge is
accorded broad discretion [in submitting a charge to the jury] so long as the charge is legally
correct.” Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999).
An issue of statutory construction — such as the type of rebuttal presumption in section 2.401(b)
— is a legal question that we review de novo. MCI Sales and Serv., Inc. v. Hinton, 329 S.W.3d
475, 500 n.30 (Tex. 2010).
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2. Applicable Law
Gonzalez references our opinion in Weed v. Frost Bank, 565 S.W.3d 397, 412–13 (Tex.
App.—San Antonio 2018, pet. denied), for its explanation of Thayer and Morgan presumptions.
As for Thayer presumptions, we extensively quoted a learned treatise in explaining:
Over the years, numerous approaches to the treatment of presumptions [in civil
cases] have been urged. One, traditionally associated with James Bradley Thayer,
gives presumptions only minor effect. A Thayer-type presumption shifts only the
burden of production to the opponent of the presumption. In other words, once the
presumption’s proponent establishes the existence of the basic fact, the factfinder
must find the presumed fact exists unless the opponent meets the burden of
production as to the presumed fact. This means that the opponent must produce
enough evidence so that a reasonable juror could find the non-existence of the
presumed fact. If the opponent meets this burden, the presumption disappears from
the case; the case proceeds as if there were no presumption. If, however, the
opponent fails to meet its burden of production, the factfinder must find that the
presumed fact exists. Under a Thayer-type presumption, the burden imposed on
the party seeking to rebut the presumption “is slight.” All a party must do to
eliminate the presumption from the case is produce enough evidence so that a
reasonable juror could find the non-existence of the presumed fact. As a result of
the ease with which Thayer-type presumptions can be defeated, they are frequently
referred to as “bursting bubble” presumptions. Many presumptions in Texas are
given the minimal, Thayer-type effect.
Id. at 412 (quoting Steven Goode & Olin Guy Wellborn III, TEXAS PRACTICE: TEXAS RULES OF
EVIDENCE § 301.2 (4th ed. 2016)). We described Morgan presumptions as:
“Shift[ing] to the opponent not only the burden of producing evidence but the
burden of persuasion as well.” Jerome A. Hoffman, Thinking About Presumptions:
The “Presumption” of Agency From Ownership as Study Specimen, 48 ALA. L.
REV. 885, 896-97 (1997). “Thus, once the proponent establishes the basic facts of
a presumption, the factfinder would be required to find the presumed fact unless
the opponent actually satisfies the factfinder of the presumed fact’s non-existence.”
1 STEVEN GOODE & OLIN GUY WELLBORN III, TEXAS PRACTICE: TEXAS RULES OF
EVIDENCE § 301.2 (4th ed. 2016). “Merely offering evidence of its non-existence
would not suffice to remove the presumption from the case.” Id.
Weed v. Frost Bank, 565 S.W.3d at 413.
Gonzalez references our opinions in Leyendecker v. Uribe, No. 04-17-00163-CV, 2018
WL 442724, at *2–4 (Tex. App.—San Antonio Jan. 17, 2018, pet. denied) (mem. op.), and In re
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J.J.F.R., 2016 WL 3944823, at *3–6, for the proposition that we have “interpreted [s]ection
2.401(b) in a manner . . . adverse to Lopez [Junior’s] arguments.” In Leyendecker, 2018 WL
442724, at *1, the trial court granted summary judgment in favor of one of the parties to an alleged
informal marriage on, inter alia, the ground that “because the parties ceased living together more
than two years prior to the filing of the petition, there is a rebuttable presumption the parties never
agreed to be married.” On appeal, we held that the non-movant had “raised a genuine issue of
material fact on whether the parties agreed to be married,” and therefore, “rebutted the statutory
presumption under Texas Family Code Section 2.401(b).” Id. at *4. In J.J.F.R., 2016 WL
3944823, at *3, the trial court, following a bench trial, found that a couple had entered an informal
marriage, and it granted the couple a divorce. The husband challenged the legal and factual
sufficiency of the evidence supporting the elements of an informal marriage. Id. at *1. We
reviewed evidence regarding the couple’s agreement to be married and held that the wife “satisfied
her burden to produce sufficient evidence of an agreement to be married to rebut the statutory
presumption.” Id. at *6. Although we did not specify, we reviewed the same evidence in assessing
the husband’s legal and factual sufficiency challenge regarding the element of an agreement to be
married and the wife’s burden under the section 2.401(b)’s statutory presumption. Id. at *3–6.
Neither Lopez Junior’s opening brief nor his reply brief mention Weed, Leyendecker, or
J.J.F.R.
3. Analysis
Lopez Junior argues section 2.401(b) must be a Morgan-type presumption because “[i]f
Gonzalez was not required to submit a question on the presumption, then it would do nothing”
because “Gonzalez already bore the burden of production and burden of proof.” Gonzalez argues
that Leyendecker and J.J.F.R. “confirm [s]ection 2.401(b) is treated like any other Thayer-type
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presumption” and that “there is simply nothing untoward about a presumption assigning a burden
of proof to a party who already bears it.”
Lopez Junior’s contention that section 2.401(b) enshrined a Morgan presumption fails for
three reasons. First, in Leyendecker and J.J.F.R., we concluded that legally sufficient evidence
was enough to rebut the statutory presumption in section 2.401(b) of the family code. This
treatment suggests that section 2.401(b) creates a Thayer presumption. Second, neither case —
nor any that Lopez Junior references — supports Lopez Junior’s contention that section 2.401(b)
obligated Gonzalez to secure answers to the three questions that Lopez Junior offered. Third,
Lopez Junior fails to explain how the answers to the three questions would aid the trial court in
crafting a judgment. Accordingly, we cannot say that the trial court abused its discretion in
refusing the three questions that Lopez Junior offered.
B. Sufficiency of the Evidence
In Lopez Junior’s legal sufficiency challenge, he contends that the evidence conclusively
establishes that Gonzalez and Lopez Senior ceased living together and no legal proceeding was
brought to establish any informal marriage within two years. Lopez Junior’s factual sufficiency
challenge, liberally construed, presents two distinct but interrelated grounds. Specifically, Lopez
Junior argues that “[1] Gonzalez failed to rebut the presumption with factually sufficient evidence,
and [2] there is factually insufficient evidence to support a common-law marriage.”
1. Standards of Review
We will sustain the legal sufficiency challenge if the record reveals: (1) the complete
absence of evidence supporting the finding; (2) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to support the finding; (3) the evidence offered to
prove the finding is no more than a mere scintilla; or (4) the evidence conclusively establishes the
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opposite of the finding. City of Keller v. Wilson, 168 S.W.3d 802, 810–11 (Tex. 2005). More than
a scintilla of evidence exists when the evidence presented rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions. Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 601 (Tex. 2004).
In reviewing factual sufficiency, we consider all the evidence and uphold the finding unless
it is so against the great weight and preponderance of the evidence as to be manifestly unjust, shock
the conscience, or clearly demonstrate bias. Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019)
(citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).
We apply these standards mindful that this court is not a fact finder. Maritime Overseas
Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The trier of fact is the sole judge of witness
credibility and the weight afforded their testimony. See City of Keller, 168 S.W.3d at 819–20.
Similarly, it is the jury’s role, not the reviewing court’s, “to resolve inconsistencies within or
conflicts among the witnesses’ testimony.” Lamont v. Vaquillas Energy Lopeno Ltd., LLP,
421 S.W.3d 198, 209–10 (Tex. App.—San Antonio 2013, pet. denied)
2. Analysis
Lopez Junior’s legal sufficiency challenge, when properly framed, fails. As briefed, Lopez
Junior contends that the evidence conclusively establishes that Gonzalez and Lopez Senior ceased
living together and no legal proceeding was brought to establish any informal marriage within two
years. Threaded through this argument is a misapprehension that section 2.401(b) embraces a
limitations period and some type of “common law” divorce. However, “a common-law divorce is
unknown to Texas law[,]” Claveria’s Estate v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981), and
Lopez Junior does not contend that section 2.401(b) reversed the holding in Claveria’s Estate.
Accordingly, the presumption in section 2.401(b) may be rebutted with evidence of the elements
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in section 2.401(a). Liberally construing Lopez Junior’s legal sufficiency challenge, applying it
to the proper statutory framework, and reading it in the context of his other sufficiency arguments,
we read Lopez Junior’s legal sufficiency challenge as contending that he conclusively negated the
first element in section 2.401(a). The evidence we detail below is both legally and factually
sufficient to support this element.
Lopez Junior’s contention that Gonzalez failed to rebut the presumption with factually
sufficient evidence begins with an arguably false premise that section 2.401(b)’s rebuttable
presumption may be subject to a factual sufficiency challenge. Cf. Amaye v. Oravetz, 57 S.W.3d
581, 584 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (requiring only that spouse “present
more than a scintilla of evidence in order to withstand summary judgment on the basis that the
couple did not agree to be married.”). Nevertheless, we collapse Lopez Junior’s factual sufficiency
challenge regarding section 2.401(b)’s rebuttable presumption into his broader factual sufficiency
challenge.
Lopez Junior’s broader factual sufficiency challenge argues that the only evidence
supporting the agreement-to-be-married (first) element is a deed signed by Lopez Senior and
Gonzalez and the invitations to the quinceañeras of Gonzalez’s two daughters. Lopez Junior
argues that these pieces of evidence are factually insufficient in four aspects.
First, Lopez Junior contends that the identification of the buyers of the Premont real
property in the August 10, 2001 deed, denoted as “Guadalupe Lopez. and wife, Elvira G. Lopez,”
is “factually insufficient to support the conclusion that they entered a common-law marriage
because [Lopez Senior] never intended for Gonzalez to sign the deed.” The real property in
question was a beauty salon owned by Charlotte Mayo. Lopez Junior highlights Mayo’s testimony
that, during the real estate negotiations and closing processing, Gonzalez was never introduced as
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Lopez Senior’s wife and Gonzalez “was [at the closing] to help [Lopez Senior] with his reading
and writing, because he was illiterate, to help him understand.” Lopez Junior also highlights the
March 17, 2011 correction deed that Mayo and Lopez Senior signed that identifies “Guadalupe
Lopez, a single person” as the buyer of Mayo’s beauty salon. Before the correction deed was
signed, Lopez Senior consulted with Cristina Soliz, an attorney. Soliz’s notes from the
consultation, which were admitted, provide:
Elvira G. Lopez
Deed had a mistake on it. I need a correction deed taking her name off because she
was not my wife ever[;] we were not living together[.] I don’t know how to read
very well [and] she was supposed to be there to help me. Instead[,] she put her
name on the property. Now I can’t find her.
Lopez Junior argues that “the fact that Gonzalez’s name was briefly on the deed” is so weak when
weighed against the countervailing evidence of Mayo’s testimony and the correction deed.
Lopez Junior’s argument fails to analyze all the evidence relating to the property in
question. Gonzalez testified that she and Lopez Senior purchased Mayo’s beauty salon and
converted the property into “Lopez Taqueria Bar and Grill.” She described it as a “family
business.” See Omodele v. Adams, No. 14-01-00999-CV, 2003 WL 133602, at *3 (Tex. App.—
Houston [14th Dist.] Jun. 24, 2004, no pet.) (mem. op.) (holding that evidence relating to a couple
“sign[ing] legal documents purchasing a home and obtaining title insurance in which they
identified themselves as husband and wife and identified the property as community property” was
legally and factually sufficient as to the third— representing to others — element of an informal
marriage). Additionally, Mayo’s recollection of Lopez Senior being “illiterate” and Soliz’s notes
that he did not “know how to read very well” must be weighed against Lopez Junior’s testimony
that his father could read and write English. Accordingly, the jury may have reasonably believed
that Gonzalez attended the real estate negotiations and closing processing as Lopez Senior’s wife
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and co-purchaser of Mayo’s property rather than as merely Lopez Senior’s interpreter. See
Lamont, 421 S.W.3d at 209–10 (providing that it is the jury’s role, not the reviewing court’s, “to
resolve inconsistencies within or conflicts among the witnesses’ testimony.”).
Second, Lopez Junior contends that the quinceañera invitations are factually insufficient
because “there was no evidence that either [Lopez Senior] or Gonzalez drafted or had anything to
do with the contents of the invitations.” He highlights the testimony of Cristina Trevino, a guest
who attended one of the quinceañeras, and her recollection that she did not believe Lopez Senior
and Gonzalez were married.
Again, Lopez Junior’s argument fails to analyze all the evidence relating to the quinceañera
invitations. Gonzalez testified that “[Lopez Senior] and I, we looked at the [quinceañera]
invitations. We picked the invitations. We planned it together.” Gonzalez also testified that Lopez
Senior escorted each daughter as her stepfather to the church service portion of the quinceañera
celebration. Gonzalez identified a picture of Lopez Senior at the church during her eldest
daughter’s quinceañera, and she noted that Lopez Senior was wearing a wedding ring. Lopez
Junior does not reference any evidence contradicting Lopez Senior’s participation in drafting the
quinceañera invitations or celebrations. See Eris v. Phares, 39 S.W.3d 708, 715 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied) (finding legally sufficient evidence of the third —
representing to others — element where husband’s friends and employees testified they thought
the couple was married because they lived together and acted as if they were married, and husband
testified he introduced appellant as his wife and she never contradicted him).
Third, Lopez Junior contends that the testimony of Olivarez, who is Lopez Senior’s cousin,
and York constitutes circumstantial evidence. Specifically, Lopez Junior argues that “Olivarez
testified that [Lopez Senior] said he would not marry Gonzalez until his mother died[,]” and Lopez
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Senior predeceased his mother. Gonzalez responds by emphasizing that Olivarez later clarified
her statements, testifying:
Q. What was the reasoning for that conversation that he did — that he said he
didn’t want to marry her?
A. Because his mother was — did not like Elvira because she always felt that
Elvira had taken her son away from — from her. And what we wanted to
do was a ceremony where friends and family would be together to celebrate
their union. They had already been married all this time, but to celebrate
their union with family and friends.
Q. So the conversation was to marry in a ceremony —
A. Yes.
Q. — with inviting friends.
A. Yes.
Earlier, Olivarez testified:
Q. Do you know whether Elvira and Guadalupe lived in a home that was owned
by Elvira?
A. She had a trailer house. And then I know — you know what? They ended
up moving the house — I guess it was the house that she had. They ended
up moving it, like, behind the street from where I lived and maybe a block
down. So now I remember. They did move it.
Q. And so during this time that they moved in, what was your understanding
of their relationship? Had it blossomed?
A. He considered her his wife. And she her — his — her husband.
Q. And how do you know that?
A. He would say — well, one, he would always call his mother-in-law
“suegra,” call his father-in-law “suegro.”
Fourth, Lopez Junior references Gonzalez’s tax returns, insurance claims, and accident
reports wherein Gonzalez notes that she is “single” as evidence that she “held herself out as ‘single’
to the general public.” Lopez Junior also references Gonzalez’s use of her maiden name (Platas)
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at times and, at other times, that of her previous husband (Gonzalez). As for Lopez Senior, Lopez
Junior highlights that he indicated he was “single” on several insurance and tax forms. Lopez
Junior also emphasizes that, after Lopez Senior and Gonzalez ceased cohabitating, Lopez Senior
began dating Marty Martinez in 2014, and he proposed to marry Martinez in 2017.
Over Lopez Junior’s objection, 2 Gonzalez explained why she indicated that she was single
on her income tax returns as:
[Lopez Senior] had too much child support, back child support back then when I
met him. He was paying two different child supports [sic], and he told me this was
going to affect [sic]. And it was not fair that they would take my income tax that I
would get back, and they were going to keep it. So we — he said for me to do it
that way. He was protecting me and my daughters.
The jury may have reasonably inferred Lopez Senior’s advice to Gonzalez explained why both
maintained that they were “single” on certain financial documents.
Relevant to all four of Lopez Junior’s factual sufficiency arguments is Gonzalez’s
authentication of several photographs, which were admitted into evidence, wherein both Gonzalez
and Lopez Senior are depicted wearing rings on their wedding fingers. See Bolash v. Heid,
733 S.W.2d 698, 699 (Tex. App.—San Antonio 1987, no writ) (op. on reh’g) (holding that one
party’s testimony was alone sufficient to support a finding of an agreement to be married).
Having examined Lopez Junior’s four factual sufficiency contentions and the evidence
relating to each contention under the factual sufficiency standard of review, we conclude that the
factfinder could have found that Lopez Senior and Gonzalez agreed to be married and that such a
finding is not so against the great weight and preponderance of the evidence as to be manifestly
2
On examination by her counsel, Gonzalez was asked why she indicated that she was single on her income tax returns.
Gonzalez began by answering that “[t]he reason was that Lupe, my husband, Lopez, Sr., told me to put single on.”
Lopez Junior then objected on the basis of “the Dead Man’s statute of evidence” and prejudice. The trial court
overruled Lopez Junior’s objections, and he does not raise them before us. Gonzalez then elaborated on her initial
answer.
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unjust, shock the conscience, or clearly demonstrate bias. See Windrum, 581 S.W.3d at 781; TEX.
FAM. CODE ANN. § 2.401(a)(2). The evidence also surpasses a mere scintilla of competent
evidence and is legally sufficient. See City of Keller, 168 S.W.3d at 810–11.
Lopez Junior’s first issue is overruled.
III. TESTIMONY OF RETIRED FAMILY-LAW JUDGE
In Lopez Junior’s third issue, he contends that the trial court abused its discretion in
overruling his objections to the admission of opinions rendered by York, a retired family-law
judge. Lopez Junior argues that York testified regarding issues that the jury was capable of
understanding and deciding on their own and that she improperly instructed the jury on the law.
He also argues that the error caused the rendition of an improper judgment because York
“interpreted provisions of the Texas Family Code and Texas cases[,]” and she “told the jury that
the presumption against common-law marriage did not apply to this case.”
Gonzalez responds by arguing that the trial court did not abuse its discretion because York
testified as to a mixed question of law and fact, such testimony was helpful to the jury, and it was
not unfairly prejudicial. Gonzalez also argues that, if there was error, it was harmless because
York’s testimony was cumulative of other evidence, Gonzalez did not emphasize York’s testimony
during her summation, and Lopez Junior’s evidence was too weak for York’s testimony to make
a difference. Gonzalez pointedly argues that “it simply misstates the record to argue that York’s
testimony was the ‘thrust’ of Gonzalez’s case” and “[t]o the contrary, that evidence could be lifted
right out of Gonzalez’s narrative with virtually no impact on her position.”
Lopez Junior references Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004),
in support of his contention that York’s testimony probably resulted in an improper judgment. In
Nissan Motor, the Texas Supreme Court instructed us to “review the entire record, and require the
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complaining party to demonstrate that the judgment turns on the particular evidence admitted.”
Id. Nissan Motor also instructs that “erroneous admission is harmless if it is merely cumulative.”
Id. Additionally, we must review “the efforts made by counsel to emphasize the erroneous
evidence, as well as whether contrary evidence existed that the improperly admitted evidence was
calculated to overcome.” U-Haul Intern., Inc. v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012). In
applying these rules, the court in Nissan Motor observed that the claimant’s “trial attorneys clearly
believed her case turned on the evidence of other incidents.” Nissan Motor Co., 145 S.W.3d at
144. The court in Nissan Motor also observed how the claimant’s attorneys emphasized that piece
of evidence in their voir dire, opening statement, and summation. Id. at 144–46.
A. York’s Testimony
In support of Gonzalez’s position, York testified about several admitted exhibits, including
the quinceañera invitations, the 2001 deed, and evidence relating to a post office box that Lopez
Senior and Gonzalez shared. York also reviewed deposition testimony of Gonzalez and Olivarez.
Much of this deposition testimony is cumulative to Gonzalez’s and Olivarez’s in-court testimony.
Nevertheless, York provided four legal rules, and she opined how an application of the evidence
that she reviewed to each of the four legal rules supported Gonzalez’s position. Specifically, York:
(1) articulated the rule that “a common-law divorce is unknown to Texas law;” (2) testified that, if
Lopez Senior did not intend to be married, he was obligated to correct any misimpression; (3)
discounted the testimony by Lopez Senior’s three children that they did not know of the alleged
common law marriage by explaining that not everyone in the community needs to know; and (4)
testified that the correction deed was an invalid legal nullity.
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B. Harmless Error Analysis
Lopez Junior references Greenberg Traurig of N. Y., P.C. v. Moody, 161 S.W.3d 56, 94
(Tex. App.—Houston [14th Dist.] 2004, no pet.) in support of his contention that York’s testimony
was harmful because “she took over the role of the judge and the jury in instructing the jury and
then proceeded to make conclusions on the ultimate fact.” Assuming without deciding that the
trial court abused its discretion in overruling Lopez Junior’s objections, any such error was
harmless for four reasons.
First, much of what York recounted was cumulative of the testimony of Gonzalez and
Olivarez and the 2001 deed and quinceañera invitations that were admitted into evidence.
Second, at most, four of York’s opinions were arguably not cumulative and calculated to
overcome contrary evidence — those being York’s opinion that: (1) the correction deed was a void
legal nullity; (2) Lopez Senior’s obligation to correct any misimpression by friends and family that
he and Gonzalez were informally married; (3) the representation of an informal marriage need not
be conveyed to everyone Lopez Senior contacted; and (4) the rebuttable presumption in section
2.401(b) had been rebutted. Nevertheless, the harm analysis in Greenberg, 161 S.W.3d at 98,
emphasized that the statements of law by a law professor and former justice of the Texas Supreme
Court in that case were incorrect. Although Lopez Junior argues that “York instructed the jury on
the law (incorrectly)[,]” he does not reference a single case that contradicts the legal opinions that
York applied to the facts in this case. The Texas Supreme Court has explained that “an expert may
state an opinion on a mixed question of law and fact as long as the opinion is confined to the
relevant issues and is based on proper legal concepts.” Birchfield v. Texarkana Mem’l Hosp., 747
S.W.2d 361, 365 (Tex. 1987) (emphasis added). Applying this rule in the context of a harm
analysis and assuming without deciding that York’s four opinions constituted impermissible
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testimony on pure questions of law, Lopez Junior has not established that York articulated
improper legal concepts. Cf. id. Moreover, the “contrary evidence” that York’s four opinions may
have been calculated to overcome attempted to rebuff a “common law divorce” theory espoused
by Gonzalez and foreign to Texas law.
Third, Lopez Junior does not dispute that Gonzalez did not emphasize York’s testimony.
Fourth, as noted above, the evidence Gonzalez marshalled in support of her informal
marriage claim withstood Lopez Junior’s factual sufficiency challenge by a comfortable margin.
See Jackson v. Takara, 675 S.W.3d 1, 7 (Tex. 2023) (internal citations and quotation marks
omitted) (“In evaluating whether erroneously admitted evidence is harmless, we review the entire
record, considering, in particular, the state of the evidence, the strength and weakness of the case,
and the verdict.”).
Lopez Junior’s second issue is overruled.
IV. RULE 281
In Lopez Junior’s third issue, he contends that the trial court violated Texas Rule of Civil
Procedure 281 by not sending admitted exhibits to the jury room during the fifteen to twenty
minutes 3 that it took the jury to deliberate. His opening brief does not explain how the trial court’s
omission resulted in harm.
A. Standard of Review
Before a new trial can be granted, “the appellate court shall be of the opinion that the error
complained of amounted to such a denial of the rights of the petitioner as was reasonably calculated
to cause and probably did cause the rendition of an improper judgment in the case, . . . .” First
3
After the jury returned its verdict, counsel for Lopez Junior objected, noting that the jury had deliberated for “about
15 minutes or 20 minutes” and that exhibits had not yet been delivered to the jury room when the jury announced that
it had reached a verdict.
.
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Emps. Ins. Co. v. Skinner, 646 S.W.2d 170, 172 (Tex. 1983) (citing Lorusso v. Members Mut. Ins.
Co., 603 S.W.2d 818, 819 (Tex. 1980)). The reviewing court is to examine “the entire trial record”
when determining whether the error was harmful. Lorusso, 603 S.W.2d at 821.
B. Applicable Law & Analysis
Texas Rule of Civil Procedure 281 states in part: “ . . . the jury may, and on request shall,
take with them in their retirement . . . any written evidence.” TEX. R. CIV. P. 281. In First
Employees, 646 S.W.2d at 172, the Texas Supreme Court held that Rule 281 is mandatory “and
requires no request from the jurors or counsel.” Therefore, the trial court erred “in not sending the
exhibits to the jury room.” Id. at 173.
Lopez Junior contends that he is entitled to a new trial because of the trial court’s error. To
constitute a new trial, the error must be harmful. See id. at 172 (explaining the standard for reversal
due to trial court error). Here, Lopez Junior asserts that his case relied on tax returns, insurance
policies and worker’s compensation forms in which both parties held themselves out to be single.
Lopez Junior contends that because these documents were not provided to the jury at the time of
deliberation, the judgment should be reversed, and a new trial should be granted. Although the
trial court erred in not sending the exhibits to the jury room, this error was harmless.
In First Employees, the appellant specifically asserted harm because two exhibits —
unemployment benefit application forms and an application for employment — were not submitted
to the jury. Id. The Court found that this error was not reversible because: (1) the exhibits were
not contested by appellee; (2) appellant had the opportunity to cross-examine witnesses on the
exhibits; (3) the jury examined the exhibits when they were introduced into evidence; and (4) the
exhibits were referenced “extensively” during closing arguments. Id. at 173.
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Like in First Employees, the evidence Lopez Junior highlights was admitted during the
trial “without objection or contradiction” by Gonzalez. Id. There was no dispute as to “the
existence and relevance” of these documents. Id. For example, Lopez Senior’s tax returns from
the years 2013–2017, were admitted without contest from Gonzalez, although Lopez Senior filed
as single those years. Witnesses on both sides testified about these documents. For example,
Gonzalez identified herself as single on multiple past employment records. Gonzalez explained
that she identified herself as single because of Lopez Senior’s child support obligations. The
exhibits in question were published to the jury during the trial. Finally, the evidence was
referenced extensively during closing arguments. For example, Lopez Junior’s counsel argued
that Lopez Senior “always filed his tax returns as being single, not married.” Lopez Junior’s
counsel also reminded the jury of Gonzalez’s forms: “single, single.” Furthermore, the jury found
in favor of Gonzalez after deliberating for less than twenty minutes, suggesting that jurors did not
consider it necessary to review the exhibits to reach a verdict.
When considering the entirety of the record, the trial court’s failure to allow the jury to
examine the exhibits during its deliberations does not amount to “such a denial of the rights . . . as
was reasonably calculated to cause and probably did cause the rendition of an improper judgment
in this case.” Id. at 173. Therefore, the trial court’s error was harmless.
Lopez Junior’s third issue is overruled.
V. CONCLUSION
We affirm the trial court’s judgment.
Rebeca C. Martinez, Chief Justice
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