in the Matter of the Marriage of Ivory Lee Darton and Helena Rose Darton

• Court: Court of Appeals of Texas
• Decided: May 15, 2013
• Docket: 07-12-00429-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-12-00429-CV ________________________

In the Matter of the Marriage of Ivory Lee Darton And Helena Rose Darton

On Appeal from the 100th District Court Collingsworth County, Texas Trial Court No. 7596, Honorable Stuart Messer, Presiding

May 15, 2013

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Helena Rose Darton appeals the final decree of divorce between her and Ivory

Lee Darton. She contends the trial court erred in admitting the testimony of an

undisclosed witness. We affirm the judgment.

Ivory sued for divorce. Helena counterclaimed for a disproportionate share of the

property due in part to his assault on her. That pleading was followed by Ivory’s

amended petition for the same based in part on his claim that Helena committed

adultery. During Ivory’s case-in-chief, he called Helena as a witness, and she denied that she had a sexual relationship with Hinacio Contreras, even though there was

evidence that he had spent the night at her house and that a cousin of Hinacio had told

him to stop “seeing” Helena. There was also evidence from a law enforcement officer

that Helena had told him her “relationship” with Hinacio began a month before appellant

assaulted her and Hinancio and that, although she never stated the relationship was

sexual, he assumed it was because she told him that she had woken Hinacio up and

told him to leave because appellant was at the house. Ivory also testified that Hinacio

told him he was having a sexual relationship with Helena.

Before resting, Ivory sought to introduce testimony from Margie Saldana, who

had not been disclosed as a witness before trial. Ivory’s counsel represented that he

had just learned of the witness and sought to call her at trial to “rebut” Helena’s

testimony that she did not have a sexual relationship with Hinacio. Helena objected, but

when the trial court asked if she was seeking a continuance, she stated she was not.

The trial court also gave Helena’s counsel an opportunity to speak to the witness.

Thereafter, the witness was permitted to testify “in rebuttal.”

Upon culmination of the trial, the court granted the divorce and determined that

Helena had committed adultery and that Ivory had assaulted her. It also divided the

marital estate. However, Helena contends that because of the decision to admit

Saldana's testimony, the trial court found that she committed adultery and awarded

Ivory a disproportionate amount of the marital estate.

Assuming arguendo that the trial court erred, the error is harmless. While Helena

may have denied that the tenor of her relationship with Hinacio was sexual, the record

contains ample evidence supporting a factfinder’s determination to the contrary. Again,

2 Ivory testified that Hinacio so told him, Hinacio spent the night with Helena, his cousin

directed him to end the relationship, and Helena told the officer that she was having a

relationship with Hinacio and that she awoke Hinacio and told him to leave shortly

before the assault. Thus, it is more than arguable that the evidence proffered by

Saldana about the sexual relationship was redundant of other admissible evidence.

Schwartz v. Forest Pharms., Inc., 127 S.W.3d 118, 124 (Tex. App.–Houston [1st Dist.]

2003, pet. denied) (holding that like evidence coming from other sources without

objection renders harmless purported errors like that urged at bar). Furthermore, we

have been directed to no evidence suggesting that the court granted a disproportionate

division of property to Ivory, nor did the trial court note that it made such a disposition of

the estate. So, after reviewing the record, we cannot say that Saldana's testimony

affected the judgment in any way. Petroleum Synergy Group, Inc. v. Occidental

Permian, Ltd., 331 S.W.3d 14, 21 (Tex. App.–Amarillo 2010, pet. denied) (describing

the test for harm).

The issue is overruled and the judgment is affirmed.

Per Curiam