in the Matter of Elmo Liesmann, Ii

• Court: Court of Appeals of Texas
• Decided: June 27, 2002
• Docket: 13-01-00428-CV
• Status: Published

Opinion

                                   NUMBER 13-01-428-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI-EDINBURG

                        IN THE MATTER OF ELMO LIESMANN, II

                        On appeal from the 319th District Court  

                                  of Nueces County, Texas.

                                   O P I N I O N

        Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Chief Justice Rogelio Valdez

Appellant, Elmo Liesmann, II, appeals from a protective order entered against him on application by his ex-roommate, Arin Plathong.  Through fourteen points of error he argues the trial court erred in entering the protective order. We affirm.

Facts & Procedural History

At the hearing on the motion for a protective order Ms. Plathong testified that she and Mr. Liesmann lived as roommates for three weeks and separated on or about December 17, 2000.  During this time Plathong alleges that Liesmann sexually assaulted her three times.  She further testified that he harassed her at her new residence by making numerous telephone calls.  On one occasion, Plathong claims he came to her residence to confront her and that he injured himself while jumping a fence when the police arrived.  She further testified that while at the hospital, to care for the injury he sustained fleeing her residence, Liesmann called her, leaving eleven messages on her phone.

Based on an affidavit that contained a portion of  the aforementioned allegations, Plathong obtained a temporary ex parte protective order.  A protective order hearing was set for March 12, 2001.   Two subsequent extensions were granted because the trial court was unable to hear the case due to a jury trial.  The hearing, in which Liesmann represented himself pro se, was then set for March 26, 2002, with the trial court granting a protective order against Liesmann on April 10, 2001.  The order is set to expire on April 10, 2003.

Jurisdiction

We have jurisdiction over an appeal of a final judgment.  N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).  A protective order whose duration does not depend on further action by the trial court is final for the purposes of appellate jurisdiction.  In re Cummings, 13 S.W.3d 472, 475 (Tex. App.BCorpus Christi 2000, no pet.).  We maintain jurisdiction despite the fact that the trial court retains some power to modify the order.  Striedel v. Striedel, 15 S.W.3d 163, 164-65 (Tex. App.BCorpus Christi 2000, no pet.) (this Court reached the same conclusion regarding finality of a protective order). 

This protective order does not depend on further action by the trial court, therefore, for purposes of appellate jurisdiction the order is final.  Cummings, 13 S.W.3d at 475.  Accordingly, this Court has jurisdiction to review this protective order.   Id.

Analysis

Through fourteen points of error Liesmann challenges the protective order arguing the trial court erred (1) in failing to asking him if he had been notified of the hearing on April 10, 2001; (2) in accepting State=s exhibit one as evidence because it was based on hearsay; (3) in not challenging Ms. Plathong=s credibility; (4) in not bringing felony perjury charges against Ms. Plathong for what he asserts is false testimony; (5) in allowing Ms. Plathong=s counsel Ato admit letters that appellant wrote as evidence . . . because those letters were presented out of context@ and harmed the trial court=s final decision; (6) in admitting testimony of phone calls allegedly made by Liesmann at the hospital; his contention is that these calls are inadmissible because they were not traced to his hospital room; (7) in presuming Liesmann agreed to the terms and conditions of his protective order; (8) in allowing Plathong=s counsel to ask Plathong leading questions; (9) in allowing Plathong=s conflicting testimony Ato go unchecked;@ (10) in allowing Plathong=s contradictory testimony to Astand;@ (11) in allowing Plathong to testify as to Liesmann Aburglariz[ing]@ her apartment; (12) in accepting Plathong=s allegations of family violence into the record because they were not proven; (13) in allowing Plathong=s counsel to leave an impression that Liesmann lied about leaving voice mails; and (14) in stating that a rape case is not being tried.     

As a prerequisite to representing a complaint for appellate review, the record must show that Athe complaint was made to the trial court by a timely request, objection, or motion.@  See Tex. R. App. P. 33.1(a)(1).  Upon review of the record, we find no objections regarding the fourteen points of error mentioned or any other matter.  We further note that outside of Liesmann=s general references to one case, and various statutes concerning perjury, he fails to cite authority in support of his points of error.  Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex. App.BEl Paso 1997, no writ) (Afailure to cite authority in support of a point of error on appeal waives the complaint@); Tex. R. App. P. 38.1(h).

Liesmann urges this Court to examine his Aexhibits,@ provided in his brief, as part of the appellate record.  These exhibits, however, were not introduced at the hearing and are therefore, not properly part of the appellate record.  Southwestern Bell Tel. Co. v. Griffith, 575 S.W.2d 92, 104 (Tex. Civ. App.BCorpus Christi 1978, writ ref=d n.r.e.) (holding that the appellate court would convert into a court of original jurisdiction if it were to consider evidence that was never presented to the trial court). 

Conclusion

Because Liesmann has failed to preserve error, there is nothing for this Court to review.  See Tex. R. App. P. 33.1(a)(1).  We dismiss all points of error and affirm the protective ordered entered by the trial court.     

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 27th day of June, 2002.