D. La Belle Beasley v. Leroy Herren

                             NUMBER 13-03-00615-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

D. LA BELLE HERREN BEASLEY

AND BRANDON MICHAEL LIRETTE,                                            Appellants,

                                                             v.

C. LE ROY HERREN,                                                                         Appellee.

      On appeal from the Probate Court of Galveston County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

This is an appeal from a final judgment rendered in a case challenging the testamentary capacity of the settlors of a joint living trust and the corresponding validity of that trust.  We affirm the judgment of the trial court.

In 1994, Mildred and Cecil Herren created the Joint Herren Family Trust as a joint inter vivos trust.  They amended the Trust Agreement in April 1997, and again in December 1997. Appellants, D. La Belle Herren Beasley and Brandon Michael Lirette, filed suit against appellee, C. Le Roy Herren, alleging that Mildred and Cecil Herren were mentally incompetent and lacked the required testamentary capacity at the time the December 1997 Joint Trust Agreement was executed, thereby rendering the December 1997 Trust invalid.

The case was tried to a jury.  By three questions, the trial court=s charge asked the jury to determine the following issues:

(1)       whether Cecil Herren had testamentary capacity at the time he executed the December 1997 Trust;

(2)       whether Mildred Herren had testamentary capacity at the time she executed the December 1997 Trust; and

(3)       what sum of money, if any, should be paid to appellee for attorney=s fees and expenses.

The jury returned its special verdict on April 10, 2003.  In response to the first question, the jury found that Cecil Herren did have testamentary capacity at the time he executed the December 1997 Trust. However, the jury did not answer the second and third questions.

The trial court signed a final judgment on June 2, 2003, accepting the jury=s response to the first question and severing that portion of the case from the issues presented in questions two and three.  The final judgment finds that the December 1997 Trust is valid and awards attorney=s fees and expenses to appellee.

Appellants complain of the post-trial actions of the trial court. Specifically, appellants assert that when the jury returned on April 10, they reported that they had deadlocked on question two, and the trial court then declared a mistrial as to questions two and three before severing them from the question answered by the jury. In their first issue, appellants contend the trial court erred by not ordering a retrial after it declared a mistrial.  In their second and third issues, appellants contend the trial court erred by rendering judgment on issues not decided by the jury.  In response, appellee argues that appellants failed to object to any actions taken by the trial court, and thus, have waived any error. 

Appellants did not provide this Court with a reporter=s record of any of the proceedings in this case.  Specifically, appellants did not provide this Court with a reporter=s record of the post-trial proceedings of which they complain.  On October 24, 2003, this Court issued notice under Texas Rule of Appellate Procedure 37.3 that a reporter=s record had not been filed in this case.  See Tex. R. App. P. 37.3(c). We were subsequently advised that appellants had not made any request or arrangements to pay for the reporter=s record.^[1]  Therefore, we may only Aconsider and decide those issues or points that do not require a reporter=s record for a decision.@  Id.

Appellants refer us to the court=s docket sheet as evidence of the trial court=s post-trial actions, including granting a mistrial.  However, for judgments and orders of the trial court to be effectual, they must be entered of record.  Hamilton v. Empire Gas & Fuel Co., 110 S.W.2d 561, 566 (Tex. 1937).  Entries made on a docket sheet do not constitute written orders, see In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex. 2005), and entries in the court=s docket sheet cannot be accepted as a substitute for an official record.  Hamilton, 110 S.W.2d at 566; see Goff v. Tuchscherer, 627 S.W.2d 397, 399-400 (Tex. 1982) (holding that letters signed by the judge Ato counsel are not the kind of documents that constitute a judgment, decision or order from which an appeal may be taken@).  We conclude that appellants have failed to present this Court with any evidence in support of their complaints.  See Hamilton, 110 S.W.2d at 566 (Adocket entries, affidavits and other like evidence can neither change nor enlarge judgments or orders@).

We may only consider the record presented to us and Acannot speculate on what might or might not be in the missing portions of the record.@  In the Interest of M.S., 115 S.W.3d 534, 546 (Tex. 1993).  Without a reporter=s record of the post-trial proceedings, we have no evidence with which to determine whether appellants preserved error on their issues, whether the trial judge granted a mistrial, whether the unanswered jury questions were voluntarily submitted to the trial court for determination, or any other number of possibilities.  In the absence of a complete reporter's record, we presume the missing portions support the trial court's ruling.  See Bryant v. United Shortline Inc. Assurance Servs., 972 S.W.2d 26, 31 (Tex. 1998); In re Guardianship of Berry, 105 S.W.3d 665, 667 (Tex. App.BBeaumont 2003, no pet.).  Appellants= first, second, and third issues are overruled.             

In their fourth issue, appellants contend the trial court abused its discretion by not granting their motion for new trial.  This issue, however, is inadequately briefed.  Appellants have failed to present us with a clear or concise argument in support of this contention and have failed to present references to appropriate authorities.  See Tex. R. App. P. 38.1(h).  Appellants= fourth issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 18th day of May, 2006.

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^[1] On July 15, 2004, appellee provided this Court with a supplemental reporter=s record consisting of twenty-six pages of testimony, solely on the issue of the reasonableness of attorney=s fees and expenses.