Joseph Van Velzor v. Henry Bradley

• Court: Court of Appeals of Texas
• Decided: May 22, 2014
• Docket: 02-13-00233-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-13-00233-CV

JOSEPH VAN VELZOR APPELLANT

V.

HENRY BRADLEY APPELLEE

----------

FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

Pro se Appellant Joseph Van Velzor sued Appellee Henry Bradley to

recover $500 that Bradley allegedly “unlawfully appropriated” from Van Velzor.

Bradley generally denied the allegations and responded to Van Velzor’s requests

for admissions and interrogatories. At the final bench trial, both sides appeared

1 See Tex. R. App. P. 47.4. pro se, and Van Velzor called only one witness—Bradley. The trial court found in

favor of Bradley and ordered that Van Velzor take nothing by his suit.

In his first issue, Van Velzor complains about certain “documents filed in

the case that were ghost written by an attorney.” During his testimony, Bradley

mentioned that an attorney with Legal Aid had helped him respond to Van

Velzor’s discovery requests. Complaining of improper “dual representation,” Van

Velzor objected to Bradley appearing pro se after he had previously been

assisted by the attorney. On appeal, Van Velzor argues that the “use of such

documents were dishonest, misrepresentations before the court, unethical

conduct of an attorney, interference with the administration of justice” and that

the trial court “should have struck defendant’s documents and ordered the

attorney that prepared the documents filed with the court for defendant to appear

and show cause why they should not be sanctioned.”

To the extent that Van Velzor’s argument on appeal comports with his

objections at trial, we fail to see how Bradley’s discovery responses had any

relevance at the final trial because they were never admitted as evidence. See

Ceramic Tile Int’l, Inc. v. Balusek, 137 S.W.3d 722, 724 (Tex. App.—San Antonio

2004, no pet.) (reasoning that pleadings are not evidence unless offered and

admitted as evidence by the trial court); Barnard v. Barnard, 133 S.W.3d 782,

789 (Tex. App.—Fort Worth 2004, pet. denied) (reasoning that while a court may

take judicial notice of its own files, it may not take judicial notice of the truth of the

allegations in its files). Moreover, while hybrid representation is generally not

2 permitted, see, e.g., Posner v. Dallas Cnty. Child Welfare Unit of Tex. Dep’t of

Human Servs., 784 S.W.2d 585, 588 (Tex. App.—Eastland 1990, writ denied),

the trial court specifically noted at the outset of the final trial that Bradley was

appearing pro se. That Bradley had received assistance from Legal Aid in the

past did not, ipso facto, mean that he was represented by Legal Aid at the time of

trial, as Van Velzor appears to argue. Van Velzor contends that Bradley’s “unfair

advantage” deprived him of due process, but Van Velzor never objected on due

process grounds. See In re L.M.I., 119 S.W.3d 707, 710‒11 (Tex. 2003), cert.

denied, 541 U.S. 1043 (2004) (reasoning that constitutional arguments must be

preserved for appellate review). We overrule Van Velzor’s first issue.

Van Velzor argues in his second issue that the trial court erred by failing to

stop the trial once he brought his hybrid-representation objection to its attention.

Van Velzor never moved for a continuance or a mistrial, nor does he direct us to

any authority requiring the trial court to sua sponte halt proceedings after

overruling a party’s objection. We overrule Van Velzor’s second issue.

Van Velzor argues in his third issue that he was denied due process

because Bradley “engaged in evasive testimony.” Notwithstanding that he never

raised this issue below, see Tex. R. App. P. 33.1(a), the trial court afforded Van

Velzor an opportunity to make an opening statement, present evidence, and

make a closing argument. If Van Velzor thought that Bradley had testified

evasively, then he could have called himself or another witness to clear up the

3 record or provide controverting testimony, but he did not do so. We overrule his

third issue.

In his fourth issue, Van Velzor argues that he was denied a fair trial and

due process because the trial court overruled his objection to Bradley’s opening

statement and prohibited him from questioning Bradley about his criminal record.

Van Velzor never raised fair-trial and due-process arguments in the trial court; he

therefore failed to preserve them for appellate review. See Tex. R. App. P.

33.1(a). To the extent that Van Velzor merely argues that the trial court abused

its discretion by overruling his objection and by prohibiting him from questioning

Bradley about his criminal background, even if the trial court abused its

discretion, the error was unquestionably harmless in light of the entire record.

See Tex. R. App. P. 44.1(a).

Van Velzor argues that the trial court erred by assessing costs against him

because he filed an affidavit of indigence that Bradley never contested. 2 See

Tex. R. Civ. P. 145. To the extent that the judgment requires Van Velzor to pay

any costs, the clerk’s record contains an affidavit of indigence filed by Van Velzor

for purposes of costs on appeal, see Tex. R. App. P. 20.1, not for costs in the

trial court. We overrule Van Velzor’s fourth issue.

2 The final judgment provides that “[c]osts are to be borne by the party incurring same.”

4 Having overruled all of Van Velzor’s issues, we affirm the trial court’s

judgment.

/s/ Bill Meier

BILL MEIER JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: May 22, 2014