Cedars Entertainment, L.P. v. Wynona J. Winters as Trustee of Barnett 2005 Family Trust--Appeal from 35th District Court of Mills CountyDISMISSED ON APPELLANT'S MOTION: (Before Chief Justice Law, Justices Waldrop and Henson)

Cedars Entertainment, L.P. v. Wynona J. Winters as Trustee of Barnett 2005 Family Trust--Appeal from 35th District Court of Mills County

M E M O R A N D U M O P I N I O N
Cedars Entertainment, L.P. has filed its Unopposed Motion to Dismiss Appeal. We grant the motion and dismiss this appeal.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed on Appellant's Motion
Filed: June 19, 2008

Cedars Entertainment, L.P. has filed its Unopposed Motion to Dismiss Appeal. We grant the motion and dismiss this appeal.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed on Appellant's Motion
Filed: June 19, 2008
DISMISSED ON APPELLANT'S MOTION:
(Before Chief Justice Law, Justices Waldrop and Henson)

Failure to Request Findings of Facts Imperils Appeal

Michael Vasquez v. J. S. Davis Limited Family Partnership and Loretta Harrison, No. (Tex.App.- Austin, May 20, 2008) () (construction law, home renovation, promissory note, joint venture, parol evidence inadmissible, plea of payment as defense) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Michael Vasquez d/b/a Sterling Construction v. J. S. Davis Limited Family Partnership and Loretta Harrison--Appeal from County Court at Law No. 2 of Travis County

FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
NO. C-1-CV-06-006056, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This case arises from a joint venture for the renovation of a home owned by appellee Loretta Harrison. Appellant Michael Vasquez d/b/a Sterling Construction was to perform the renovation, and the J. S. Davis Family Limited Partnership was to supply the funding for the project. (1) The joint venture, formed in January 2006, was memorialized in three written instruments: (1) a promissory note executed by Vasquez/Sterling Construction in favor of the J. S. Davis Family Limited Partnership in the amount of $16,430 due and payable "upon the closing and funding of the sale of the property"; (2) a six-month residential lease of the property executed by Vasquez and Harrison, with an exclusive option to purchase the property in favor of Vasquez that expired at the end of the six-month lease term; and (3) a real estate joint venture agreement between the J. S. Davis Family Limited Partnership as "Investor" and

Vasquez/Sterling Construction as "Manager," providing that an "investment amount" of $16,430 was to be used for the property's repair, remodeling, marketing, and sale, or for Vasquez's lease and purchase of the property, and that upon the closing of the sale of the property, the J. S. Davis Family Limited Partnership was to be "repaid" out of the "Seller's Net Proceeds." The joint venture agreement also provided that the venture's primary purposes were "to maximize profitability in the purchase and sale of the property" and "to prepare and sell the property without undue delay."

Prior to the expiration of the six-month lease, Vasquez ceased making lease payments and ceased working on the renovation. He did not exercise his option to purchase the property, and the option expired. After Vasquez ceased work on the renovation, Harrison spent $9,482.18 on repairs and sold the house to a third party in August 2006. The parties stipulate that the net proceeds of the sale were $27,649.76.

In September 2006, Harrison and the J. S. Davis Family Limited Partnership sued Vasquez in county court at law for $3,374.42 in unpaid lease payments, $9,482.18 in damages incurred to finish the renovation of the property, and $16,430 plus interest due for breach of the promissory note. Vasquez answered with a general denial. In November 2006, Harrison purchased the Vasquez/Sterling Construction promissory note from the J. S. Davis Family Limited Partnership. Following a May 2007 bench trial, the trial court awarded Harrison the unpaid lease payments and the amounts due under the note, plus attorneys' fees, costs, and post-judgment interest. Vasquez appeals the county court's judgment.

In his first point of error, Vasquez asserts that the three instruments are simply three pieces of a single agreement and that the trial court erred by refusing to construe the agreements as a whole. Specifically, Vasquez complains that the trial court refused to consider the terms of the joint venture agreement in finding that the promissory note had been breached. However, we are unable to conclude, as Vasquez urges, that the trial court did not consider the terms of the joint venture agreement in making its findings with respect to the promissory note. Both the joint venture agreement and the promissory note were admitted into evidence.

Vasquez did not request findings of fact and conclusions of law from the trial court. Therefore, we are unable to determine what weight the trial court gave to the various items of evidence or whether the trial court construed the various agreements together or separately. (2) Although the judgment might be interpreted in a manner that would suggest that the trial court gave the terms of the joint venture agreement little consideration in determining whether there had been a breach of the promissory note, this is not at all certain or established on this record. Without findings of fact, conclusions of law, or something more explicit in this record, we are unable to decipher what the trial court ultimately concluded with respect to the construction of the various agreements. Consequently, we cannot conclude there is reversible error on this basis. We overrule Vasquez's first point of error.

In his second point of error, Vasquez argues that the trial court improperly excluded testimony regarding the parties' intent with respect to the terms of the promissory note and joint venture agreement. Vasquez's trial counsel made several attempts to elicit testimony from Vasquez and James Davis (who owns a controlling interest in the general partner of the J. S. Davis Family Limited Partnership) as to the parties' intent or "understanding" of when the promissory note was to become payable.

A party's "understanding" of a written agreement, if it would vary or contradict the agreement's terms, is inadmissible absent an ambiguity in the agreement. Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 293 (Tex. App.--Beaumont 2005, pet. denied); see Matagorda County Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006) ("In the usual case, the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls." (quoting City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968))). We read the promissory note and joint venture agreement together. See McGoodwin v. McGoodwin, 181 S.W.3d 870, 874 (Tex. App.--Dallas 2006, pet. denied) ("When two or more instruments executed contemporaneously or at different times pertain to the same transaction, the instruments, including promissory notes, will be read together even if they do not expressly refer to each other.").

Reading the instruments together, we agree with the implied finding by the trial court that the agreements are not ambiguous with respect to when the promissory note was to become due and payable. The promissory note became due and payable upon "the closing and funding of the sale of the property." This was the maturity date of the promissory note regardless of whether Vasquez was the buyer of the house. There was no need to admit evidence of either party's subjective understanding of this unambiguous provision.

We overrule Vasquez's second point of error.

In his third and fourth points of error, Vasquez challenges the legal and factual sufficiency of the evidence to support the judgment. In reviewing legal sufficiency, we view the evidence in the light favorable to the court's finding and will overrule the challenge as long as the evidence offered to support the finding is more than a mere scintilla. See Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).

In reviewing factual sufficiency, we consider and weigh all the evidence in the record and will reverse the challenged finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Vasquez asserts that the evidence is legally and factually insufficient to show that he breached the promissory note or that Harrison sustained any damages as a result of a breach. However, contrary to these assertions, the promissory note was admitted into evidence, its terms reflect that it was mature, and Davis testified that it was due and payable and remained unsatisfied.

The evidence is legally sufficient to support the trial court's judgment.

Vasquez makes three arguments to support his factual insufficiency points. First, Vasquez points to the joint venture agreement's provision that requires the "investment amount" to be repaid from the "Seller's Net Proceeds" of the sale of the property. However, this provision is only helpful to Vasquez to the extent his position is that the loan memorialized in the promissory note has, in fact, been paid. Payment is an affirmative defense. Tex. R. Civ. P. 94.

To prevail on a plea of payment, Vasquez had to have included this defense in his pleadings. See Rea v. Sunbelt Sav., FSB, 822 S.W.2d 370, 372 (Tex. App.--Dallas 1991, no writ) ("Absence of a proper plea of payment renders evidence as to payment inadmissible."). He did not do so. See First Nat'l Bank v. Whirlpool Corp., 517 S.W2d 262, 269 (Tex. 1974) (defense of payment "may not be shown under a general denial"). Without pleadings to support the defense, he cannot argue that the promissory note is paid by recasting this argument as a factual sufficiency challenge.

Second, Vasquez points to Davis's inability or unwillingness during his testimony to define the term "sale"--the trigger under the promissory note's terms for Vasquez's obligation to pay the note--as evidence that the promissory note had not been breached. Regardless of Davis's equivocation as to the meaning of the term "sale," however, the writing is not ambiguous on this point. The promissory note states that all principal and accrued interest become payable "upon the closing and funding of the sale of the property," followed by the street address of the property owned by Harrison and which was the subject of the joint venture. Both Davis and Harrison testified that this property had been sold, and Vasquez introduced into evidence the "Settlement Statement" from the August 2006 sale.

Pursuant to the unambiguous terms of the promissory note, that sale triggered Vasquez's obligation to repay the promissory note.

Third, Vasquez cites opposing counsel's statement in closing argument that "[w]e don't dispute the fact that out of the proceeds of the [sale] of the house, the money was actually secured to pay us," as an admission that the promissory note had not been breached or that there were no damages from any breach. However, counsel's statements that immediately followed indicate that he was not admitting no breach or no damages: "I won't say pay off the note that's not what happened. But as to an equitable matter to put us in a decent position, we don't dispute that."

Viewing the statement in context, Harrison's counsel was suggesting that his client had received sufficient proceeds from the sale of the property to have mitigated her damages at least to an extent. The statement regarding the proceeds of the sale of the property by counsel during argument was not an admission that would necessarily bar recovery on the promissory note. See Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 349 (Tex. App.--Houston [14th Dist.] 2001, pet. denied) (to be a judicial admission, attorney's statement in closing argument must be "a clear, deliberate, and unequivocal statement"). We overrule Vasquez's third and fourth points of error.

Having overruled each of Vasquez's points of error, we affirm the judgment of the county court.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 16, 2008

1. Loretta Harrison's brother, James Davis, owns a controlling interest in J. S. Davis, LLC, the general partner of the J. S. Davis Family Limited Partnership.
2. Vasquez points to commentary by the trial court during closing argument to support his argument that the trial court did not consider the terms of the joint venture agreement when deciding whether there had been a breach of the promissory note. During closing argument, the trial court stated at one point, "nothing in this note requires me to look at these other two pieces of paper and tie them together." However, this isolated comment was only one among many that when taken together indicate that the trial court had not yet resolved the issue or declared its final conclusion on the issue: "I have this problem because I'm trying to figure it out. . . . That's my difficulty, do you disagree with that argument or that concern?" We must take care not to look to a court's oral comments from the bench made prior to the court's findings as a substitute for findings of fact and conclusions of law. See In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984).

Termination of dad's parental rights based on criminal conviction affirmed

Mitchell has filed a letter requesting that this Court provide him the chance to retain his parental rights. He asserts that he is in prison because he resided in an area of town that was unacceptable to his parole officer. Mitchell explains he did not move because he lacked sufficient funds or options and refused to abandon his pregnant companion. He admits that C.A.M.'s mother has been a drug user. He states that, because he has been in prison, he has not seen C.A.M. He asserts that he will be released on parole in 2008 and requests the opportunity to show he can be a good father and to take whatever steps are necessary.

We are confined to reviewing whether appellant has shown that the trial court committed an error warranting reversal of the judgment. Mitchell's letter does not describe any error of law by the trial court. While we are sensitive to the poignant plea in his letter for a chance to prove his ability to be a good parent, the letter does not show that, based on the totality of the record, the trial court committed any reversible error in terminating his parental rights.

We affirm the termination of Mitchell's parental rights to C.A.M. We grant Mitchell's attorney's motion to withdraw as counsel for Mitchell.

Walter B. Mitchell v. Texas Department of Family and Protective Services, No. (Tex.App. - Austin, May 15, 2008)() (termination of parental rights on account of criminal conviction, incarceration) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Walter B. Mitchell v. Texas Department of Family and Protective Services
Appeal from 146th District Court of Bell County

M E M O R A N D U M O P I N I O N

Walter B. Mitchell (1) filed a notice of appeal from the district court's order terminating his parental rights to C.A.M. Mitchell's appointed appellate counsel examined the record and filed a brief asserting that he finds the appeal frivolous.

The district court found by clear and convincing evidence that Mitchell had engaged in conduct that endangered the physical and emotional well-being of the child. See Tex. Fam. Code Ann. § 161.001(1)(E) (West Supp. 2007). The district court also found by clear and convincing evidence that Mitchell knowingly engaged in criminal conduct that resulted in his conviction of an offense and confinement for more than two years from the date of the filing of the petition. (2) See id. § 161.001(1)(Q). Finding by clear and convincing evidence that termination of Mitchell's parental rights is in the child's best interest, see id. § 161.001(2), the district court terminated Mitchell's parental rights to C.A.M.

Mitchell's counsel has filed a brief consistent with the procedure outlined in Anders v. California. (3) 386 U.S. 738, 741-44 (1967). In the brief, Mitchell's appellate counsel concludes that the evidence of Mitchell's criminal history and incarceration supports the termination sufficiently to render the appeal frivolous.
Mitchell has several convictions, including burglaries of habitations, theft of a motor vehicle, and unauthorized use of a motor vehicle, dating back to 1978 and continuing through his most recent conviction in 1992. At the time of the hearing, he was serving a 45-year sentence for attempted burglary of a habitation. He was paroled in 2002, but that parole was revoked in August 2006. Although Mitchell asserted he would be released again on parole in July 2007, the Department of Criminal Justice projected a release date in 2018, and his 45-year sentence concludes in 2036.

Mitchell's counsel compared the evidence to the Holley factors to assess the child's best interest. See Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). C.A.M., born in September 2006, was not old enough to articulate his desires regarding parental rights at the May 2007 hearing. With C.A.M.'s mother's parental rights terminated, C.A.M. had emotional and physical needs that Mitchell could not satisfy while incarcerated. Mitchell's testimony that he violated his parole to stay with C.A.M.'s mother indicates that (1) he was with her when she was using cocaine daily while pregnant, and (2) that he risked leaving C.A.M.'s mother unattended in the event that his parole was revoked which, in fact, occurred. There was no evidence that Mitchell had taken or would take advantage of any prison programs to help him with parenting, that Mitchell had a specific plan for meeting C.A.M.'s needs, or that Mitchell had any explanation for his criminal history that would excuse his inability to care for C.A.M. Mitchell testified that, if released on parole, he had an address with C.A.M.'s mother--who, along with C.A.M., tested positive for cocaine at his birth (because of her self-described daily use of cocaine during her pregnancy), who continued to test positive for two months after his birth and removal from her care, who admitted using cocaine two days before the termination hearing, and whose parental rights to C.A.M. were terminated. He also testified that he had a job offer and a place to stay from his pastor and that he believed he could change and wanted the chance to be part of his child's life. There was evidence that C.A.M. had been with a foster family from early in his life and that the foster family wanted to adopt him.

Mitchell has filed a letter requesting that this Court provide him the chance to retain his parental rights. He asserts that he is in prison because he resided in an area of town that was unacceptable to his parole officer. Mitchell explains he did not move because he lacked sufficient funds or options and refused to abandon his pregnant companion. He admits that C.A.M.'s mother has been a drug user. He states that, because he has been in prison, he has not seen C.A.M. He asserts that he will be released on parole in 2008 and requests the opportunity to show he can be a good father and to take whatever steps are necessary.

We are confined to reviewing whether appellant has shown that the trial court committed an error warranting reversal of the judgment. Mitchell's letter does not describe any error of law by the trial court. While we are sensitive to the poignant plea in his letter for a chance to prove his ability to be a good parent, the letter does not show that, based on the totality of the record, the trial court committed any reversible error in terminating his parental rights.

We affirm the termination of Mitchell's parental rights to C.A.M. We grant Mitchell's attorney's motion to withdraw as counsel for Mitchell.

G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 15, 2008

1. Appellant testified that he is also known as Walter Boyd Brooks.
2. Mitchell's counsel notes that the district court failed to recite in open court that Mitchell engaged in his criminal conduct knowingly, but the termination decree contains that recitation.
3. In Anders, the United States Supreme Court held that a court-appointed defense attorney in a criminal case who determines, after fully examining the record, that an appeal is wholly frivolous and without merit must so advise the appellate court and then set forth any potential points of error and applicable law that might arguably support the appellant's position. Anders v. California, 386 U.S. 738, 741-44 (1967). This Court has accepted the use of this procedure by appointed counsel in parental rights termination cases. Taylor v. Texas Dep't of Prot. & Regulatory Servs., 160 S.W.3d 641, 647 n.4 (Tex. App.--Austin 2005, pet. denied). A frivolous appeal is one that lacks any basis in law or in fact. McCoy v. Court of Appeals of Wis., 486 U.S. 429, 438 n.10 (1988).

Nabelek v. Court of Criminal Appeals (Tex.App.- Austin 2008)

Ivo Nabelek v. The Court of Criminal Appeals et al., No. (Tex.App.- Austin, May 15, 2008)() (suit against judge, clerks, court; dismissal for want of jurisdiction, res judicata) (Before Justices Patterson, Pemberton and Waldrop)
Ivo Nabelek v. The Court of Criminal Appeals, The Supreme Court of Texas, The Hon. Louise Pearson, The Hon. Blake Hawthorne, The Honorable Denise Collins, and The Hon. Debbie Stricklin
Appeal from 353rd District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-05-001784, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Ivo Nabelek, proceeding pro se, (1) appeals from the district court's order dismissing his claims against appellees for want of jurisdiction. He contends that (1) the trial court erred in failing to wait until his written response to the appellees' motion to dismiss was filed; (2) the grounds stated in appellees' motion to dismiss, including the lack of a justiciable controversy, do not support the dismissal; and (3) the trial court refused to explain why it dismissed his claims "without prejudice." We affirm.

Nabelek's complaints in this cause filed in Travis County arise from the handling and disposition of other causes of action in the Harris County district courts, the Texas Court of Criminal Appeals, the Texas Supreme Court, and the United States Supreme Court. Nabelek alleges generally that lawsuits in which he was a party in the district courts of Harris County were improperly handled by the clerk (2) and that his rights were prejudiced by a lack of adequate procedures as well as inaction or incorrect action by the district judges presiding. His complaints in this cause arise from his previous suits for clemency, nunc pro tunc reformation of a judgment, DNA testing, and writs of habeas corpus and mandamus in Harris County. He challenged the denial of relief in the Harris County suits, in some instances, to the extent of seeking a writ of certiorari in the United States Supreme Court. He asserts in this cause that his rights to due process, access to the courts, equal protection, and pro se representation were violated in the prior cases by clerical failures to file pleadings, pass the pleadings along to the judges, and failure to forward the pleadings to appellate courts, as well as by the judges' failures to consider or properly rule on his pleadings. Nabelek also contends that, when denying his habeas applications, the trial courts improperly failed to make findings of fact, issued only conclusions of law, and made additional recommendations that the court of criminal appeals "then adopted blindly."
Nabelek complains about the judges of the court of criminal appeals and clerk. (3) He contends that they denied him due process by failing to stay his original habeas actions pending results in a DNA suit. He complains that he was denied access to that court by those judges' refusal to grant him leave to file a petition for writ of mandamus that would order the Houston trial court to entertain his motion to issue a judgment nunc pro tunc. Nabelek also complains that the limited space available on the court of criminal appeals's prescribed habeas application form did not allow him to explain why his more than seventy additional claims could not have been brought in his original petition. He contends that the form incorrectly requires that he state the "reasons" he could not have brought the claims previously, instead of meeting the law's requirement of a statement of "facts" as to why they could not have been presented. Nabelek also contends that the rule prohibiting the clerk from filing habeas applications that are not on the prescribed form is unconstitutional. See Tex. R. App. P. 73.2.

Nabelek also complains that the Texas Supreme Court and its clerk (4) improperly classified a case in which he had filed a petition for review as a criminal action. He contends that this misclassification led the court to err by transferring the petition to the court of criminal appeals, thus depriving him of access to the Texas Supreme Court and of the opportunity to have the merits of his claim considered. He also complains about the United States Supreme Court's decree (over Justice Stevens's dissent) that he must pay a $300 docketing fee and comply with Supreme Court Rule 33.1 before he can pursue any non-criminal relief at that court. He asserts that the Supreme Court justices (other than Justice Stevens) are denying him access to that court.

Nabelek requested that the Travis County District Court issue injunctions requiring and prohibiting certain actions by the clerks, judges, and justices of the Harris County District Court, the Texas Court of Criminal Appeals, the Texas Supreme Court, and the United States Supreme Court. In his prayer for relief, Nabelek requested a declaratory judgment declaring his rights and whether they had been violated in addition to the injunctive relief requested above.
The appellees filed a plea to the jurisdiction. They contended that Nabelek's petition did not present a justiciable controversy. They argued that, because the district court was not empowered to require courts of equal or higher authority to do anything, the relief requested would not resolve the controversy between the parties. They further contended that Nabelek's petition is barred by res judicata because a federal district court had already resolved the claims involving judges Collins and Stricklin and the judges of the court of criminal appeals by dismissing them for failure to state a claim. The appellees also urged that Nabelek's claims are impermissible collateral attacks on decisions made in other suits. The district court granted the plea to the jurisdiction.

Because the existence of subject-matter jurisdiction is a question of law, we review de novo the trial court's ruling on a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). Unless a defendant pleads and proves that allegations in a plaintiff's petition were fraudulently made, we take as true the facts pleaded in the petition to determine whether those facts support jurisdiction in the trial court. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). If necessary, we may review the entire record to determine if the trial court had jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). A judgment may be reversed only for an error that either probably caused the rendition of an improper judgment or probably prevented the appellant from presenting his appeal. Tex. R. App. P. 44.1(a).

Nabelek initially complains in this appeal that the district court erred by failing to wait to rule on the plea to the jurisdiction until his response was filed. The plea to the jurisdiction was filed on July 26, 2005. Nabelek contends that, due to his incarceration, he did not receive the plea until July 29, 2005. Although he mailed his response on August 4, 2005, the trial court signed the order granting the plea on August 8, 2005--after the hearing (in which Nabelek participated by telephone), but two days before Nabelek's response was filed in the trial court on August 10, 2005. Nabelek complains that he did not have a reasonable chance to receive the plea, research his response, and have his mailed response received by the court before it ruled.
Nabelek has not shown that the district court's failure to wait for his written response to the plea to the jurisdiction before granting the plea probably resulted in an improper decision. He participated in the hearing by telephone and presented his arguments orally before the trial court granted the plea to the jurisdiction. Further, the district court had Nabelek's written response for twenty-eight days while it had plenary power to reconsider and withdraw its order. The district court did not do so. See Tex. R. Civ. P. 329b(d). The court's action has not affected Nabelek's ability to present his arguments on appeal. Because we review Nabelek's complaints as a matter of law--the same standard applicable in the district court--Nabelek's arguments to the district court can be considered on appeal without any prejudice. Nabelek's response is in the record before us, and we will consider his arguments therein to the extent that he presents them on appeal. We are not persuaded that the timing of the district court's hearing and ruling is the source of any reversible error in this cause.

Nabelek contends that the district court erred in finding that his claims do not present a justiciable controversy. A justiciable controversy exists where there is a real and substantial controversy involving a genuine conflict of tangible interests and not merely a theoretical dispute. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). A district court has the power to issue injunctions and other writs necessary to protect its jurisdiction. Tex. Gov't Code Ann. § 24.011 (West 2004). A district court also has the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. Tex. Civ. Prac. & Rem. Code Ann. § 37.003 (West 1997). A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Bonham State Bank, 907 S.W.2d at 467.

We conclude that the court did not err by concluding that Nabelek's claims do not present a justiciable controversy. The Texas Supreme Court has held that "[o]ne court has no power to enjoin official action by the judge of another court of co-ordinate power and jurisdiction." Lord v. Clayton, 352 S.W.2d 718, 723 (Tex. 1961); Flores v. Peschel, 927 S.W.2d 209, 212 (Tex. App.--Corpus Christi 1996, orig. proceeding). If a court cannot enjoin its peers, it cannot enjoin official action by justices, judges, and clerks of courts that are superior to it in the judicial hierarchy. We find and are cited to no authority to the contrary. Thus, if the Travis County District Court had issued the requested injunctions, they would have been void. See Lord, 352 S.W.2d at 723. Nabelek's requested declarations are linked with the injunctive relief because he asserts that the officials' actions (or failures to act) that he wishes were restrained (or compelled) violated his rights. Further, the requested injunctions and declarations appear to relate to causes that have been litigated to final judgment or dismissal. (5) Therefore, ordering the court clerk to present documents or include them in a record in such a case over which the court no longer has plenary power would not vest the judges and justices with the power to alter the result in those cases. This would not resolve the underlying controversy. Because the controversy would not have been resolved by the requested injunction or declaration, the disputes presented were not justiciable before the district court. The district court correctly dismissed Nabelek's claims as failing to present a justiciable controversy.

Nabelek also complains that the district court failed to explain why it dismissed his claims "without prejudice." He contends that this left him uncertain about how to proceed, although he acknowledges that the district court could not advise him. We, too, cannot issue an advisory opinion. Wessely Energy Corp. v. Jennings, 736 S.W.2d 624, 628 (Tex. 1987). We are limited to resolving those issues necessary to the disposition of the appeal, and can reverse only for harmful errors. See Tex. R. App. P. 44.1(a), 47.1. We are not persuaded that either the dismissal without prejudice or the failure to explain probably led to an improper decision or probably prevented Nabelek from properly presenting his appeal. See id. 44.1(a).
Affirmed.

G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: May 14, 2008

1. Nabelek is incarcerated in Texas state prison.
2. Nabelek also sued Harris County District Clerk Charles Bacarisse in this cause. However, the claims against Bacarisse are not before us because they were severed and transferred to Harris County pursuant to Bacarisse's motion to transfer venue.
3. Nabelek sued Troy C. Bennett, Jr. in his official capacity as clerk of the court of criminal appeals. Because Bennett has been replaced as clerk of the court of criminal appeals by Louise Pearson, she has been substituted as defendant/appellee. See Tex. R. App. P. 7.2(a).
4. Nabelek sued Andrew Weber in his official capacity as supreme court clerk. Because Weber has been replaced as clerk by Blake Hawthorne, Hawthorne has been substituted as defendant/appellee. See id.
5. These include a request for recommendation of pardon or commutation of sentence filed in 2005 in which the pleadings were rejected as an improper ex parte communication, a 2004 motion for judgment nunc pro tunc in a case tried in 1994, a habeas application filed in 1999 and heard in 2001, a successive habeas application filed and dismissed in 2003, a motion filed in 2004 to reopen both the 1999 and 2003 habeas applications, a petition for review filed in 2003, and several successive "replacement" petitions filed thereafter.

Rollins-El v. TDFPS (Tex.App.- Austin, 2008)

Rollins-El v. Texas Department of Family and Protective Services, No. (Tex.App. - Austin, May 8, 2008)() (termination of parental rights, TDFPS, DFPS) (Before Chief Justice Law, Justices Waldrop and Henson)
Kevin Jerome Rollins-El v. Texas Department of Family and Protective Services
Appeal from 146th District Court of Bell County

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 215,278-B, HONORABLE RICK MORRIS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Kevin Jerome Rollins-El appeals from the decree terminating his parental rights. He contends that the referring trial court erred by denying him a jury trial de novo, by denying the paternal grandmother's plea in intervention, and by deciding that it had lost plenary power to act on post-judgment motions, including a motion for new trial. We affirm the decree.

Rollins-El raises only procedural complaints regarding the district court's decree. Consequently, we will discuss the underlying facts briefly and focus our review on the procedural posture of the case. Rollins-El was convicted of felony theft and placed on probation in 1992. His probation was revoked in 1993 when he tested positive for cocaine use. In 1998, he was convicted of possession of a firearm by a felon and was sentenced to prison followed by probation. That term of probation was revoked when he pleaded true to a charge of possession of cocaine. In 2002, he assaulted the mother of his first child. In May 2004, he was arrested in Kentucky for assaulting the mother of the children who are the subject of this matter, fleeing and evading arrest, possessing marijuana, and public intoxication.

According to the State's attorney, these charges remained outstanding at the time of the hearing before the trial court. In 2005, he was charged with driving while intoxicated and convicted of possession of cocaine, which led to his incarceration at the time of this proceeding. There was testimony that the children's mother used drugs and occasionally would become transient and lose contact with family members. In his findings of fact, the associate judge found that Rollins-El knew from his previous conviction that drug possession could lead to incarceration and that his 2005 incarceration left the children primarily in the care of "an unstable and drug abusing mother." The trial court found that Rollins-El engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being.

The following procedural events are relevant to this appeal:

October 24, 2006 Associate judge holds hearing on petition to terminate parental rights and orally announces that Rollins-El's rights are terminated
October 26, 2006 Rollins-El files his notice of appeal and requests hearing before district court
November 2, 2006 District court sets case for hearing on November 28, 2006
November 16, 2006 Rollins-El requests jury, asserts indigence, and requests waiver of jury fee;
Rollins-El's attorney moves to withdraw
November 17, 2006 Rollins-El allegedly first receives notice of setting
November 28, 2006 Rollins-El requests continuance, moves to strike nonjury setting;
Court denies these motions
Rollins-El files affidavit/unsworn declaration of indigence;
Court begins hearing lasting through December 1, 2006
December 1, 2006 Wanda Rollins files motion to intervene;
Court orally orders termination of parental rights;
Court grants motion for counsel to withdraw (1)
December 11, 2006 Court signs order terminating parental rights
January 8, 2007 Rollins-El files notice of appeal and agreed motion for additional time to file statement of points on appeal, alleging lack of notice of judgment
January 9, 2007 Rollins-El files motion for new trial and statement of points on appeal
The district court declined to set a hearing on the January motions, writing on them "case on appeal, court has lost its plenary power."
Appellants in termination cases are required to file statements of points they intend to appeal no later than fifteen days after the judgment is signed. Tex. Fam. Code Ann. § 263.405(b) (West Supp. 2007). Appellate courts "may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial." Id. § 263.405(i). The judgment was signed on December 11, 2006, and Rollins-El filed his statement of points on appeal on January 9, 2007, more than fifteen days after the judgment was signed. Although there is no provision expressly permitting an extension of time to file the statement of points, Rollins-El filed an "Agreed Motion for Additional Time to File Statement of Points and Rule 11 Agreement" asserting that he filed his statement late because no notice of the judgment was sent to him. Rollins-El did not, however, obtain a finding from the trial court regarding the date he received notice. See Tex. R. Civ. P. 306a. Strictly interpreting the terms of the family code, we cannot consider the grounds presented in the January 9 statement of points on appeal because that document was not timely filed. (2) Tex. Fam. Code Ann. § 263.405(i); Pool v. Texas Dep't of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.--Houston [1st Dist.] 2007, no pet.).
Because the interests at stake are so important and because the record contains some indication that Rollins-El did not receive timely notice of judgment, we will consider the issues raised in the statement of points on appeal in the interest of justice. We conclude that the issues raised in the statement of points on appeal do not support altering the judgment. Rollins-El complains of the trial court's denials of his request for jury trial, his mother's plea in intervention, and his motion for new trial.
We review a trial court's refusal to grant a jury trial under an abuse-of-discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). We examine the entire record and will find that an abuse of discretion exists if the trial court's decision is arbitrary, unreasonable, and without reference to guiding principles. Id. Under the rules of civil procedure, a court may set contested cases for trial on its own motion or based on a party's written request, provided that the court gives at least 45 days' notice of a first setting for trial, unless the parties agree otherwise. Tex. R. Civ. P. 245. The court will not hold a jury trial unless a written request for a jury trial is filed with the clerk of the court "a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance." Tex. R. Civ. P. 216(a). The jury fee must be deposited with the district clerk within the time for making a written request for a jury trial. Tex. R. Civ. P. 216(b). Instead of paying the fee, the party may within the time for making such deposit file with the clerk, his affidavit to the effect that he is unable to make such deposit and cannot, by the pledge of property or otherwise, obtain the money necessary for that purpose. Tex. R. Civ. P. 217. An inmate in the Texas Department of Corrections may instead file an unsworn declaration to the same effect. Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (West 2005).
Rollins-El contends that the trial court erred by denying his request for a jury trial. He contends that he was not required to file a jury request thirty days in advance of the trial setting because the family code's accelerated timetable rendered that impossible. See Bell Helicopter Textron v. Abbott, 863 S.W.2d 139, 140-41 (Tex. App.--Texarkana 1993, writ denied). In Bell, the trial court gave notice of nonjury trial twenty-six days in advance of trial (received by Bell twenty-four days before trial). Id. at 140. Although Bell had requested a jury early on in the case, Bell did not pay the jury fee until after the original trial date. Id. The Texarkana court held that, because the trial court did not give notice of the first trial setting forty-five days in advance of the trial, the remaining procedural timetable was inapplicable, and Bell's jury demand was deemed timely. Id. at 141 (citing Simpson v. Stem, 822 S.W.2d 323, 324-25 (Tex. App.--Waco 1992, orig. proceeding)). The Simpson opinion further explains that the jury demand, deemed timely because of the trial court's noncompliance with Rule 245, is presumed to have been made a reasonable time ahead of trial. Simpson, 822 S.W.2d at 324. Under Simpson, the presumption of timeliness is rebuttable. Id.
This case is distinct from Bell and Simpson because of the statutory constraints placed on termination cases. Generally, trial in termination cases in which the Department is the conservator must begin within a year of filing. See Tex. Fam. Code Ann. § 263.401 (West Supp. 2007). The family code requires that the referring trial court hear an appeal from an associate judge's ruling in a termination case within thirty days after the appeal to the trial court is filed. Id. § 201.015(f) (West Supp. 2007); see also id. § 101.032(a) (West 2002). This statutory requirement supersedes the rule-based requirement of forty-five days' advance notice of trial setting. See Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (statutes generally prevail in conflict with rules). Otherwise, the referring court would be required to give notice of trial at least fifteen days before the associate judge announced a ruling and, quite likely, before any party gave notice of appeal of that ruling. In contrast to the district courts in Bell and Simpson, the district court's failure in this case to give at least forty-five days' notice of trial was a creature of statute, not error.
Unlike the parties in Bell and Simpson, Rollins-El knew (3) when he filed the notice of appeal from the associate judge's ruling that the district court was required to hear the appeal within thirty days. (4) Even if he was not required to make his jury demand until he received a trial setting--which was sent only twenty-six days before trial--he was required to make the jury demand a reasonable time before trial. Simpson, 822 S.W.2d at 324; see also Tex. R. Civ. P. 216(a).
We find no abuse of discretion in the trial court's denial of the jury demand in this case because the court could reasonably have denied the demand as not having been made or completed within a reasonable time before trial. "It is within the discretion of the trial court to deny a jury trial in the absence of a timely request or payment of a jury fee." Martin v. Black, 909 S.W.2d 192, 197 (Tex. App.--Houston [14th Dist.] 1995, writ denied). Rollins-El did not file a jury demand when appealing to the district court, even though he knew when filing the notice of appeal that it would have to be heard within thirty days and that the case would have to be resolved by February 13, 2007. He demanded a jury on November 16, 2006--twenty-one days after filing his notice of appeal--but did not accompany his jury demand with the jury fee or oath of inability to pay the fee. See Tex. R. Civ. P. 216(b) (fee due at time of jury demand), 217 (oath in lieu of fee due at same time). The Request for Jury Trial filed by counsel asserts that Rollins-El is represented by appointed counsel "because of his indigence"--although the Order Appointing Attorney states that the appointment is made because Rollins-El "is incarcerated" without mentioning his financial status. Rollins-El filed an unsworn declaration of indigence on November 28, 2006--the date of trial, twelve days after filing his jury demand and thirty-three days after appealing the associate judge's ruling. Although the trial court did not state a basis for its denial of the request for jury trial, we conclude that the trial court would not have abused its discretion by denying the request because it was neither made nor completed (i.e., accompanied by the requisite fee or declaration of indigence) a reasonable amount of time before the trial date given the statutory timetables. See Williams v. Williams, 19 S.W.3d 544, 546 (Tex. App.--Fort Worth 2000, pet. denied). We overrule Rollins-El's first issue.
Rollins-El next complains that the court erred by denying Wanda Rollins's plea in intervention. Wanda Rollins, the paternal grandmother of the children, filed her plea in intervention on December 1, 2006--the last day of the hearing. After the plea was denied, she did not file a notice of appeal. An appealing party may not complain of errors that do not injuriously affect it. Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000); see also In re H.M.J.H., 209 S.W.3d 320, 321 (Tex. App.--Dallas 2006, no pet.). While a grandmother may intervene in a suit affecting a parent-child relationship, see McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no pet.), we find no basis for her son to complain on appeal of the trial court's refusal to allow the intervention when she does not herself file a notice of appeal. Rollins-El may not successfully complain of the denial of Wanda's petition in intervention. We overrule his second issue.
In his third issue, Rollins-El contends that the trial court erred by stating that it lost plenary power to consider his post-judgment motions, including his motion for new trial. We review a trial court's denial of a motion for new trial for an abuse of discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006).
Rollins-El's motion for new trial was not timely. In termination cases, the motion for new trial is due within fifteen days after the judgment or order. Tex. Fam. Code Ann. § 263.405(b)(1). There is no provision for extending that deadline in the statute. See id. Except as specified in the rules of procedure, the trial court cannot enlarge the time for filing a motion for new trial under the rules even with the parties' agreement. See Tex. R. Civ. P. 5; Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see also Tex. R. Civ. P. 306a (describing process for proving late notice of judgment). The trial court signed its judgment terminating Rollins-El's parental rights on December 11, 2006. By statute, the motion for new trial was due fifteen days later on December 26, 2006. See Tex. Fam. Code Ann. § 263.405(b)(1). Rollins-El filed his motion for new trial on January 9, 2007. (5) Even if the provisions of Texas Rule of Civil Procedure 306a apply to termination cases, there is no indication that the court was asked to make or made any findings extending the time for filing the motion for new trial. Thus, the motion for new trial was not timely filed and did not extend the trial court's plenary power. Accordingly, the trial court's plenary power expired thirty days after it signed the judgment. See Tex. R. Civ. P. 329b(d), (e).
The record does not demonstrate reversible error with regard to the trial court's notation on the post-judgment motions that it had lost plenary power. The motions were filed on January 9, 2007 and the trial court lost plenary power on January 10, 2007. The notations on the motions are undated, but if they were made any time after January 10, 2007, there is no error. Further, as just discussed, the motion for new trial was untimely filed. The court could not have granted the untimely motion. Although the court could have granted a new trial on its own motion on January 9-10, 2007 on the same grounds raised by Rollins-El's motion, the record before us does not demonstrate that its failure to do so was an abuse of discretion. (6)
We similarly find no reversible error in the court's notation on the statement of points on appeal or the request for findings of fact and conclusions of law that it had lost plenary power. Even if these documents were considered timely filed, the record does not compel a conclusion that the trial court's refusal to consider them harmed Rollins-El. We have considered the issues raised in the statement of points on appeal and have reviewed the record that would have underlain any findings or conclusions. The record does not reveal harmful error on any of the issues Rollins-El raises.

Affirmed.

G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: May 9, 2008

1. Despite the granting of the motion, the trial counsel who was permitted to withdraw nevertheless currently represents Rollins-El in this appeal.
2. Rollins-El also filed two other notices of appeal: (1) October 26, 2006, from the associate judge's order, and (2) November 16, 2006, after the trial court adopted the associate judge's proposed order. Even if these documents were construed as a statement of points on appeal prematurely filed, they present nothing for our review because they do not contain the points he raises in this appeal. The points Rollins-El raises in this appeal bear on actions or inactions of the trial court occurring after both notices were filed.
3. All persons are presumed to know the law and are charged with knowledge of provisions of statutes. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 n.3 (Tex. 1990).
4. The court set a trial date thirty-three days after the notice of appeal was filed. Although a referring trial court should hear a party's appeal within thirty days of the associate judge's ruling, the failure to do so will not deprive the court of jurisdiction over the case. Harrell v. Harrell, 986 S.W.2d 629, 631 (Tex. App.--El Paso 1998, no pet.).
5. Even if the Bell County courthouse was closed on December 26, 2006, Rollins-El's motion for new trial filed on January 9, 2007, was untimely because it was filed more than 15 days after the judgment was signed on December 11, 2007.
6. In his motion for new trial, Rollins-El essentially requests reconsideration of trial court decisions. He complains that the trial court erred by denying his request for jury trial and his mother's plea in intervention and not naming her permanent managing conservator, by concluding that the Department made reasonable efforts to return his children to him or to his mother, by finding the evidence factually sufficient that he had knowingly placed or allowed the children to remain in conditions or with people that endangered the children's well-being, and by concluding that the evidence supported a conclusion that termination is in the best interests of the children. We find no abuse of discretion in the trial court's failure to grant a new trial on its own motion.
One different ground raised in the motion for new trial is Rollins-El's assertion that the final hearing date was improperly accelerated "in violation of Texas Family Code §§ 262.2015 (authorizing acceleration if certain aggravating factors are present) and 263.401 (requiring dismissal unless trial begins within a year after the Department becomes temporary managing conservator)." Although there were statements at trial that the case was placed on the "fast track," this acceleration is not apparent from the record as it was heard by the district court less than ninety days before the deadline for dismissing the case. Further, it is not clear how any acceleration was or would have been improper or how any acceleration harmed Rollins-El. We do not find an error in not granting a new trial on these grounds.

Rodriguez v. TDFPS (Tex.App.- Austin, May 8, 2008)

Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services, No. (Tex.App.- Austin, May 8, 2008)() (TDFPS suits, SAPCR, supervised vistiation, limited access, pro se litigants) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services--Appeal from 421st District Court of Caldwell County

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 06-FL-018, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Mark Rodriguez and Carmen Rodriguez appeal from the final order in this suit affecting the parent-child relationship with their daughter, B. R. (1) The order appointed the Department of Family and Protective Services (FPS) as the permanent managing conservator and appointed both appellants as possessory conservators with limited visitation rights. Appellants complain that the trial court relied on hearsay, as well as fraudulent and unsubstantiated evidence. They also assert that the court made erroneous decisions and incorrectly required Mark Rodriguez to undergo sex offender therapy. We affirm.

The record on appeal consists only of the clerk's record. Appellants did not request the preparation of a reporter's record. They assert that no reporter was present during the final set of hearings, but that the judge presiding recorded proceedings on her laptop computer. Appellants assert that the clerk's record provides adequate evidence to support their complaints, rejecting FPS's argument that the absence of a reporter's record prevents this Court from reversing the order because we cannot review the evidence admitted at the trial.
Appellants also filed a Motion for Appellate Court to Provide Alternatives to Court Reporter's Record if Court Reporter Record is Required by Appellate Court, which this Court denied. In that motion, they asserted that, although they did not request a reporter, the absence of a reporter was a denial of their right to a fair hearing. They asserted that the clerk's office failed to include exhibits as requested. (2) The motion states that, despite the absence of these exhibits:
Appellants believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions. The undersigned requests that should the Appeals

Court mandate a transcript of the final hearing, then the Appellants request either:
• The Appeals Court to utilize the digital recording available from the Caldwell County court or
• Allow the Appellants' discretion on a partial transcription of the final hearing day of the six day trial.

Appellants asserted in the motion that preparation of the full reporter's record would be several thousand dollars and beyond their financial resources.

We overruled appellants' motion because their motion essentially asked this Court to decide for appellants how to pursue this appeal. This Court is a neutral arbiter and cannot direct a party's strategic decisions. (3) Under the rules, appellants have the burden of making many decisions, including what issues to present, what relief to request, what portions of the trial court record to request be included in the record on appeal, and how to craft a brief that best serves their interest. See Tex. R. App. P. 34.6(b), 38.1. The appellate court does not "mandate" a reporter's record absent the party's request and the reporter's failure to provide it. Appellants chose not to request the reporter's record, stating that they "believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions." Appellants have chosen to rely on materials in the clerk's record to support their issues presented, as is their prerogative. See Tex. R. App. P. 37.3(c).

In the absence of a reporter's record from a bench trial, a court must presume that the omitted proceedings are relevant to and support the trial court's judgment. Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 538 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Therefore, this Court must presume that (1) the trial court properly exercised its discretion to hear evidence regarding all of the issues, whether appealed or not, and (2) the trial court heard evidence that is legally sufficient to support its judgment. Id. This standard arguably would require that we affirm the final order without further deliberation. However, because of the importance of the rights at stake in this child custody case and because the clerk's record includes statements and affidavits, we will examine the issues presented in light of the documents in the clerk's record.

The clerk's record contains statements made to law enforcement by Carmen Rodriguez, appellants' children, and a neighbor about specific incidents and general conditions in the Rodriguez home. The taking of statements was apparently prompted by a report to a neighbor by appellants' 19-year-old daughter, J. R., of severe neglect, sexual and physical abuse, and long-term physical and emotional isolation. Authorities were contacted, and the family gave written statements.

In a statement dated January 8, 2006, Carmen recounted an incident in July 2003 in which "Mark was trying to hurt [her older daughters] and [an older son] was protecting [them]. . . . Mark is a violent person and frequently emotionally abusive. I did not know he was molesting my daughter [J. R.] until today."

According to their 25-year-old daughter, Monique, Mark "forces himself" on female family members, which she describes by saying "his presence makes [the girls in the family] and my mom uncomfortable and he will not leave them alone." The altercation Carmen recounted was, according to Monique's statement, prompted by Mark's increasingly heated inquiries into credit card balances. She also reported that "yesterday, January 7, 2005, I found out that [sisters J. R., C. R., and B. R.] were asked by Mark to take off their clothes so he can take pictures of them naked." (4)

Appellants' 28-year-old son, Lorran, corroborated the story about the credit card altercation. He added the detail that, before the altercation, Mark was angry because a friend of Carmen's--who Mark believed was advising her to divorce Mark--had called the house. Lorran also recounted an incident in which Mark asked Lorran and a sibling to get a gun and shoot him. Lorran said that J. R. told him that Mark tried to get the sisters to take nude photographs. Lorran said that his grandmother feared that Mark was going to hurt the remaining children if they stayed with him.

Appellants' 24-year-old daughter, Chantre, gave her account of the credit card altercation. She did not remember the details of the conversation, but she did recall Mark's anger and the tension as their brother attempted to block Mark's path to the daughters' room. She recalled getting between the men and preventing a physical struggle.

Appellants' 21-year-old son, Einnar, stated that Mark showed the three youngest sisters a pornographic magazine in 2000. He also wrote that Mark "reportedly molested them according to my 3 youngest sisters." Einnar stated that Mark tried to get the girls to join a strip club so that Mark could quit his job.

J. R. wrote that Mark physically abused her and her mother and "had been into child pornograp[hy] and molesting children as far back as I remember." She also stated that she and her siblings were victims. She wrote that she had been "forced to do sexual acts with" Mark "since I was 8-16 years old." She stated that he threatened her when she questioned their activities and became violent when she asked him to stop. She also recounted an incident in 2000 during which Mark drove her and her sisters to an isolated area, tied them down, and molested them individually. She wrote about more sexual assaults on her that occurred in 2001. She said that she eventually demanded that he stop, which he did, but that she stayed in the home to protect her sisters. Nevertheless, J. R. stated that Mark "started taking my two younger sisters alone in the van [he] currently has, I suspected he was abusing or molesting them because they would come back fearful & upset, soon later had suicidal thoughts & talk." Her account of the July 2003 incident included her memory that Mark threatened them with a shotgun. She stated, "This man has certainly the stalke[r] personality, that's why all fear him or reporting for help, it needs t[o] stop for my family's sake as well [as] others who are in danger, possibly other children."

Appellants' then-16-year-old daughter, C. R., confirmed that, six years earlier, Mark asked her and her sisters to pose nude for photographs so they could be rich. She testified that, in 2001, she and her siblings opened Mark's bag and found a magazine with pornographic images of 12-year-old girls. Mark was angry when he found the children and yelled at them. He yelled at J. R. and asked her "What did you see?" When she did not answer, he shook her and threw her down. She also recalled the July 2003 altercation, but did not recount a discussion preceding it. She did write that Mark yelled and was choking Lorran, then that Lorran began choking Mark. C. R. also recounted seeing Mark try to touch J. R.'s breast once while he was driving and J. R. was seated next to him in the front seat, and another time while they were watching a movie at home. C. R. stated that she did not see such behavior at other times but that J. R. "has told me it has happened more."

These allegations prompted authorities to arrest Mark for sexual assault and to ask further questions. Carmen stated that she did not believe J. R.'s accusations of sexual assault. Based on the initial allegations and Carmen's refusal to believe them, FPS removed the then-minor children--16-year-old C. R. and 13-year-old B. R.--from the parents' home.
Family members, including Mark and J. R., filed affidavits in February 2006 that explain, modify, or retract the statements they gave in January 2006.

Mark denied or explained why the allegations in the family's January statements did not support removal of the remaining minor children. He asserted that he did not fit the profile of a sexual abuser and that J. R. did not exhibit behaviors of a victim. He said that she demanded a lot of attention and persuaded the other girls to lie about him on January 7, 2006. He asserted that J. R.'s statement tracked the family code statutes as if a checklist had been used when neighbors assisted her in preparing her statement. Mark said that the July 2003 altercation was the result of financial and marital stress, that no gun was involved, that no choking or fistfight occurred, and that it was simply a wrestling match that was over in a few minutes. He said that the magazine that C. R. reported finding in his bag was not child pornography because that is illegal and not obtainable at the New Braunfels convenience store where the magazine was purchased, and that the photo was of a subject with a child-like face. Mark contended that the allegations were not supported by a preponderance of evidence and did not support removal of the children.

In Carmen's affidavit, she averred that she never saw J. R. show behaviors typical of abuse
victims. Carmen is a registered nurse. She asserted that J. R. is outgoing and has a good relationship with Mark. Carmen stated that she did not know what to say in her written statement, but that the detective who questioned her and her family for five hours insisted that they put something down. She said that her statement that "'[h]e is a violent person' refers to the incident when he damaged a dog kennel during a temper flare up when my daughter [J. R.] disrespectfully said Mark 'ate like a pig' on his birthday in April 2002." Otherwise, she had not seen him be violent. Her statement that Mark was "frequently emotionally abusive" referred only to his insistence on remaining married despite her "constantly asking for us to separate." Since their debts had been discharged in bankruptcy in January 2006, she said the stress had eased and she believed their marriage could work.

Lorran filed an affidavit in which he denied that Mark ever pointed a gun at anyone. He said he had never seen pornography in their house, their vehicle, or computers, nor had he seen Mark naked. He said he generally tends to disregard his grandmother's statements as outlandish. He corroborated Mark's version of the July 2003 altercation as being overreactions by him and his father, and said that no weapons, choking, punching, fist fighting or kicking was involved. Lorran said that, since J. R. told him about Mark's request that the girls be photographed nude, he had watched their interactions. He said he had noticed no unusual or inappropriate affection or conversation between Mark and J. R. Lorran said that J. R. demands attention and is prone to lying. He recounted several of J. R.'s outbursts, including one in which her father was repairing a shower, and J. R. began throwing his tools and screaming "get out," claiming that Mark had beat her cat with tools; Lorran found the cat uninjured. Lorran said that once, when J. R.'s bike got a flat tire, she refused his offer of a ride home, claiming that he had "summoned devils out to cause her tire to go flat."

Monique also elaborated on her statement. She said she mentioned the July 2003 altercation because the detective "insisted we put something down on paper or it would look suspicious." When she said her mother received most of the emotional abuse, she meant that Mark is very persistent about wanting to talk problems out, in contrast to Carmen, who does not like to talk when she is upset. Monique wrote that massive credit card debt was a source of tension. She wrote that her statement that Mark "forces himself on the girls" referred to his persistence in maintaining communication and his desire to spend time with them on his days off. She said she had never seen him with pornography and had never heard the accusations about his desire to take nude photographs of the younger girls before January 2006.

Chantre also averred that she wrote something down in her statement just to appease the detective. She added that Mark never threatened them with a gun. She denied ever seeing her sisters with unexplained injuries. She said that J. R. was always very vocal and would have complained had something been wrong. Chantre wrote that J. R. was very emotional and susceptible to uncontrolled emotional outbursts over trivial events. Chantre wrote that she had never seen or heard any sexual abuse and had not seen her father naked.

J. R. later filed an affidavit in which she recanted all of her accusations. She described in great detail how she used the opportunity provided by her neighbor's belief that abuse was occurring in the house as a way to get Mark to stop looking at pornography. She said that her neighbor was obsessed with her family and believed that God had sent her to protect the Rodriguez children--to the extent that she had moved from another town at the insistence of audible disembodied voices. J. R. stated that she embellished the facts by alleging that her father's pornography was of children, by inventing the allegation that he wanted to take nude photographs of her and her sisters, and by inventing the allegation that he sexually abused her. She averred that she made up these allegations hoping to shock her father into renouncing pornography. She stated that she had been manipulated by others and that, when she realized the true effect of her false allegations, she regretted and recanted them. She stated that her neighbor threatened that God would reject J. R. if she recanted her testimony.

Carmen later filed a complaint with the Texas Department of State Health Services regarding actions by licensed substance abuse counselor Carrie Roper. Carmen asserted that Roper conspired with her neighbor to persuade J. R. that she had repressed memories of sexual abuse. Carmen also asserted that Roper's giving J. R. a book on the theory of repressed memories as well as associated counseling, violated state licensure laws barring counseling personal friends.
Carmen filed a complaint with the Texas State Board of Medical Examiners that her father-in-law, Dr. J. A. Rodriguez, violated his professional responsibilities and duties prompted by his interaction with J. R. According to the complaint, Dr. Rodriguez is an 81-year-old retired physician who received e-mails from J. R. in which she claimed Mark had physically and sexually abused her. Carmen complained that, instead of reporting the allegations of abuse to authorities or to the family, Dr. Rodriguez corresponded with J. R., "diagnosing Mark (via what [J. R.] said in her e-mails) as being 'mentally ill', 'he will kill someone if he gets into a rage' and 'I am afraid for the safety of the family.'" Carmen then reported that Dr. Rodriguez disagreed with their choice to home-school their children and had not maintained regular communication with the family during her marriage to Mark. She asserted that Dr. Rodriguez changed his views of J. R. when he learned that J. R was making some sort of allegations against him, deeming J. R. "'bipolar', 'paranoid schizophrenic', and 'crazy' and 'if you let her back in your house watch your back because she will put a knife in your chest.'" Carmen complained that Dr. Rodriguez engaged in unprofessional conduct in his e-mail communications with J. R. and violated his duty to report J. R.'s allegations if he believed them.

A service plan was adopted that allowed the girls to live at home with their mother, provided they had no contact with the males in the family. The plan required that the parents attend various types of classes and counseling, which they did. After finding that appellants had violated the court's requirement that they not discuss the case with their children, the court removed the children from their mother's home and directed FPS to place them. The males in the family were then permitted to return to the family's home. A subsequent order prohibited Mark from having contact with the two girls. (5) Before the final hearing, C. R. turned eighteen and was no longer a subject of this proceeding. Each appellant had legal counsel who were later allowed to withdraw because appellants no longer wished to retain them.

The final order under appeal here establishes FPS as the permanent managing conservator for B. R., naming appellants possessory conservators. The order permits Carmen to have weekly supervised visits with B. R. as well as unsupervised visits "upon the recommendation of a therapist. Mrs. Rodriguez may choose the therapist." The order permits Mark to have supervised visits with B. R. "until the criminal case is resolved. Once his criminal case is resolved he may continue to have supervised visits only if he attends sex offender therapy." According to appellants, the criminal charges against Mark were dismissed two days after the final hearing in this case.

Appellants present several issues. They contend that the trial court erred by (1) relying heavily on hearsay, conjecture, and unsupported evidence, (2) using only fraudulent, selective evidence, (3) validating FPS's actions in removing the children without a court order or following proper procedures, (4) determining that Carmen failed to supervise and was not protective without establishing that abuse occurred, (5) requiring Mark to undergo sex offender therapy, and (6) relying heavily on the report by FPS's expert, Matthew Ferrara, which they allege was based solely on conclusions relying on the veracity of J. R.'s original accusations.

In their first issue, appellants complain that "hearsay was the major part of the evidence presented in the form of emails, perjured testimony, suppressed documents and unsupported accusations against the appellants." We do not know what documents were admitted as evidence during the trial. Nevertheless, we find no error if the evidence complained of was the documents in the clerk's record. The rules of evidence provide that error cannot be shown in a ruling admitting or excluding evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context" or, "[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." See Tex. R. Evid. 103(a). The rules of appellate procedure similarly require the following:

As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Tex. R. App. P. 33.1(a). The record before us does not contain any objections to the evidence. We find no indication that evidence was suppressed, or that suppressed evidence was considered. Whether evidence is credible or supported generally affects the weight accorded the evidence. For the court to be required to entirely disregard evidence, an objection or other means of exclusion had to be made. No error is shown by the court's consideration of unobjected-to evidence.

In their second issue, appellants contend that "fraudulent evidence was used to fundamentally deny fair procedures before child removal, a right included in procedural due process." The substance of the argument in their brief pertains to FPS's use of evidence derived from J. R.'s original accusations that Mark sexually assaulted her, even though she later recanted those accusations. Appellants contend that suppression by the prosecution of material evidence that is favorable to an accused violates due process, as does a prosecutor's knowing presentation of false testimony or failure to correct testimony he knows is false. This is not a prosecution, however, and more to the point, the record before us does not demonstrate that J. R.'s statements recanting her January statements were suppressed, that FPS's attorney knew that J. R.'s original accusation was false, or that the original accusation is necessarily false. At least one of J. R.'s contrary statements, her affidavit dated June 8, 2006, is in the clerk's record. More may have been admitted at trial, but we do not have that record before us. Recantation of an earlier statement--however forceful or repeated--does not necessarily make the earlier statement false. The recantation itself may be false. (6) The resolution of the contradiction is a credibility issue for the factfinder. The Department did not commit fraud or violate anyone's rights merely by offering a recanted statement and, on this record, the court did not err by admitting or considering it.

In their third issue, appellants contend that "the Fourth Amendment was violated (among many others) since there was no probable cause established for child removal." Appellants complain that FPS did not conduct a sufficiently thorough investigation before removing C. R. and B. R. from their home. (7) Appellants assert that FPS lacked probable cause to seize the children on January 11, 2006, and that there was no evidence the children were in imminent danger. It is not entirely clear how the evidentiary basis for the initial removal relates to any alleged error in the final order rendered after a full hearing. Nevertheless, we will examine whether FPS had any sound basis for removing the children on January 11, 2006.

A qualified person can remove children without a court order under limited circumstances, including based "on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that" either "there is an immediate danger to the physical health or safety of the child" or "that the child has been the victim of sexual abuse." Tex. Fam. Code Ann. § 262.104(a) (West Supp. 2007). In statements to a Caldwell County Sheriff's Office investigator dated January 8, 2006, the family members recounted or reported hearing of incidents of Mark making threats, physically assaulting one child, encouraging then-minor girls to pose nude for pictures, and sexually abusing at least one girl. In her affidavit in support of FPS's original petition, filed January 13, 2006, FPS specialist Marijo Shearin recounted the statements the family had given, supplemented by additional reports of abuse and statements taken from the younger daughters in interviews at the children's advocacy center. Shearin also reported that, on January 11, 2006, Carmen reported that she had posted bond for Mark after his arrest for sexual assault and stated that she did not believe J. R.'s accusations of sexual abuse. Shearin concluded that there was an immediate danger to the children in the home because of the reported abuse by Mark and his probable imminent return to the home. The information Shearin described in her affidavit does not appear materially different from the information she had on January 11, 2006, when she made the decision to remove the children from the home. We conclude that appellants have not shown error in the initial removal requiring reversal of the trial court's final order.

In their fourth issue, appellants contend that, "without established abuse, there can be no failure to supervise and protect." This appears to be a challenge to the sufficiency of the evidence to support the trial court's decision not to name Carmen as a managing conservator and specifically references the failure to establish sexual abuse by Mark. They also argue that Caldwell County unlawfully suppressed J. R.'s affidavit of nonprosecution and petition to rescind a fraudulently obtained protective order.

The primary consideration in conservatorship cases is the best interest of the child. Tex. Fam. Code Ann. § 153.002 (West 2002). A parent (or both parents) will be appointed sole (or joint) managing conservator "unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Id. § 153.131(a). FPS's burden of proof is preponderance of the evidence. Id. § 105.005; see also In re W.M., 172 S.W.3d 718, 724 (Tex. App.--Fort Worth 2005, no pet.). The standard of review for determinations of a child's best interest and conservatorship is abuse of discretion. Id. An abuse of discretion occurs only when the court acts arbitrarily, unreasonably, or without regard to guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

The record before us does not demonstrate that the trial court abused its discretion by refusing to make Carmen a managing conservator. The trial court was required to assess the best interest of the child, not merely whether Mark sexually abused one of the daughters and Carmen ignored it. We do not know what evidence was admitted at trial. The clerk's record contains the original statements from the family and others discussing various incidents of emotional, physical, and sexual abuse. It also contains reports that Carmen rejected J. R.'s accusations. The record also contains affidavits from family members explaining, contradicting, or withdrawing their original statements. Where conflicting evidence is in the record, the trial court as factfinder must resolve the conflict. Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 266 (Tex. 1969); Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex. App.--Dallas 2007, no pet.). We must defer to the factfinder's credibility determinations, particularly when custody is at issue. See Sotelo v. Gonzales, 170 S.W.3d 783, 789 (Tex. App.--El Paso 2005, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). On the record presented to us, we cannot say that the trial court abused its discretion when determining from the evidence before it that the best interest of the child was better served by not having her parents as managing conservators.

In their sixth issue, appellants contend that "Dr. Matthew Ferrara's findings, conclusions and recommendations are not valid since they were based on outcry victim's false allegations of sexual abuse which are unsupported by medical evidence." This issue apparently relates to the sufficiency of the evidence underlying the trial court's order because the trial court ordered that B. R. "NOT be placed with her parents unless recommended by Dr. Matthew Ferrara." Appellants do not cite this Court to a report by Dr. Ferrara in the record. Appellants assert that, in late 2006, Dr. Ferrara strongly recommended sex offender treatment for Mark as an assurance that he is safe with children. Appellants assert that this report did not refer to the later affidavits or motions by J. R. and others contradicting the initial claims of sexual and other abuse. Appellants also assert that Dr. Ferrara strongly encouraged Mark to take a polygraph examination, after which the administrator opined that Mark's performance indicated deception--though about what precisely the record is not clear. In addition to attacking the reliability of polygraphs, appellants contend that Mark suffered an anxiety or panic attack from the administration of the test. He also contends that FPS workers used psycho-sexual evaluation tools on him that are not appropriate for persons who have not admitted guilt. We cannot evaluate the validity of Dr. Ferrara's findings on the record before us. As we have concluded above, without reference to Dr. Ferrara's findings, the record before us does not show an abuse of discretion in the court's conservatorship decision. Even if Dr. Ferrara's findings are flawed, reliance on them would not necessarily show reversible error.

In their fifth issue, appellants assert that, "since the father did not abuse the child as established by lack of objective findings, requiring the father to make an admission by court ordered sex offender therapy would be asking the father to lie and commit perjury." Appellants argue that Mark is being placed in the untenable position of remaining silent in court-ordered therapy, resulting in the loss of his child, or falsely confessing to abuse, resulting in a loss of liberty. He equates this to court-ordered confession. We do not agree that attending therapy is equivalent to an admission that he has committed abuse. Mark is not being prosecuted for sexual assault and the conservatorship decision has been made without any express finding regarding sexual abuse. There is no showing that the court-ordered therapy requires that Mark confess to sexual abuse. The therapist may instead conclude that Mark did not commit any sexual abuse and, with Mark's permission, inform the trial court of that conclusion. In any event, Mark could not commit perjury in his therapy sessions because he would not be under oath or an inmate making an unsworn declaration. See Tex. Penal Code Ann. § 37.02 (West 2003) (defining perjury). Appellants' fifth issue does not present reversible error.

We affirm the trial court's order.

G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 8, 2008

1. Appellants proceeded pro se in the trial court and appear pro se on appeal.
2. Exhibits offered or admitted at trial properly accompany the reporter's record and must be requested from the reporter. See Tex. R. App. P. 34.6(b)(1).
3. Appellants' pro se status does not affect this Court's role. "Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
4. The 2005 date noted in the statement appears to be an error. The statement was dated January 8, 2006.
5. Appellants asserted in their status report that this change was the result of Mark taking a polygraph examination at which the examiner determined there was deception indicated. Appellants contended that the result was due to Mark's anxiety when placed in unfamiliar processes or situations akin to being in a dentist's chair, which he finds difficult.
6. While the premise that a recantation, rather than the original statement, may be false is self-evident, it has been noted that child victims of familial sexual assault may feel unique pressure to make a false recantation. See Gonzales v. State, 4 S.W.3d 406, 418 (Tex. App.--Waco 1999, no pet.).
7. Appellants also assert that the removal deprived the children of due process under the Fifth and Fourteenth Amendments. The children are not named parties to this appeal and their rights cannot be asserted by the parents as individuals, which is the only way that appellants have appealed.