NUMBER 13-17-00212-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
PEGGY FRANKLIN, Appellant,
v.
DAVID JAMES, CINDY JAMES, TERRAL BULLOCK, AND CHERYL BULLOCK, Appellees.
On appeal from the 24th District Court of DeWitt County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa Memorandum Opinion by Justice Rodriguez
By five issues, appellant Peggy Franklin appeals pro se from a judgment
partitioning a tract of land. Franklin challenges certain evidence that was introduced at
trial. Because the record contains no indication of what this evidence might have been,
we affirm. I. BACKGROUND
A. Proceedings Before the Trial Court
On February 25, 2016, appellees David James, Cindy James, Terral Bullock, and
Cheryl Bullock filed their original petition for partition of fifty acres of land situated in
DeWitt County, Texas (“the land”). Appellees alleged that together, they owned an
undivided 54.767% interest in the land. According to the petition, the remaining 45.233%
was owned, in fractions, by twenty-eight defendants or their unknown heirs.1
Appellees sued Franklin, among others. They alleged that Franklin owned a
.0296% interest in the land. Franklin retained counsel and, on March 24, 2016, filed an
answer and general denial. On June 21, 2016, Franklin joined three other defendants in
filing a joint amended answer, along with counterclaims for declaratory judgment and a
try-title action. Franklin alleged that she had superior title to appellees because she was
heir to Dennis Williams, who once owned the land.
By the time of trial, the appellees had amended their petition to allege that they
owned 61.4632% of the land. They continued to assert that Franklin owned a .0296%
interest.
The case was set for a bench trial on December 21, 2016. No reporter’s record
of the proceedings has been submitted to this Court.
On March 9, 2017, Franklin submitted a letter to the trial court explaining her view
that a certain document introduced into evidence at trial was “not all true—a false
1 The trial court signed orders permitting substitute service by publication for sixteen of the
defendants whose names or addresses could not be determined, and an attorney ad litem was appointed to represent their interests. 2 document.” Franklin attached to her letter what appears to be a death certificate, which,
according to the letter, showed that the evidence at trial was false. In her brief to this
Court, Franklin does not identify or explain the document in question, or how the death
certificate might relate to that document.
Franklin’s attorney filed a motion to withdraw on March 23, 2017.
On April 11, 2017, the trial court signed a statement of evidence describing the trial
proceedings and the evidence presented. See TEX. R. CIV. P. 244. According to the
statement, six exhibits were introduced at trial: a survey map of the land, two deeds
conveying the land, two family history charts, and a list of all owners and their respective
interests. The appellate record does not include a volume of trial exhibits, and Franklin
does not explain if—or where—these exhibits appear in the clerk’s record.
Also on April 11, 2017, the trial court entered a judgment granting the partition.
The judgment declared that appellees together had an undivided 61.4632% interest in
the land, Franklin had an undivided .0296% interest, and other defendants shared the
remaining interest. The judgment provided that because partition in kind was impossible,
the land would be sold, and the proceeds split in proportion to the owners’ interests.
Franklin timely filed her notice of appeal on April 24, 2017.
B. Proceedings Before this Court
On April 27, 2017, Franklin was informed that her notice of appeal did not comply
with Texas Rule of Appellate Procedure 9.5(e). See TEX. R. APP. P. 9.5(e).
By letter, the Clerk of this Court also informed Franklin that she was required to file
a docketing statement within fifteen days, and that she should make a written request to
3 the court reporter and make arrangement to pay for the appellate record within ten days.
Franklin was also advised that this Court’s website includes a wide variety of useful links
and specific information about how to obtain access to appellate records.
On May 4, 2017, Franklin filed a “Designation of Record of Instrument Sec. 12.001
Request” with the district clerk for DeWitt County. In it, she designated the following:
1. The Eviction notices that was at J.P. court (both of them)[.]
2. Letter that was sent to the Heirs about them signing their land over to the James’. Made them scared.
3. Writing of court report of what was said in court. The Original, correct one. Not the one you gave to our attorney to us. Not correct about what was said in Court on that day in court. Need all info of that day.
4. Need some subpoenas.
5. Need proof of #65991 (Arthur Barnett).
6. Need a physical survey. 50 acres from which a Black Jack 5 diam. (landmark)
We tried to but wouldn’t allow surveyor to do one.
Attached to Franklin’s designation of record were many documents. There was no
indication whether these documents were presented at trial and no explanation of the
significance of the documents. On May 18, 2017, the district clerk for DeWitt County
forwarded Franklin’s Designation of Record of Instrument Sec. 12.001 Request and the
attached documents to this Court.
The reporter’s record in this action was due on June 12, 2017. On June 21, 2017,
this Court sent a letter to the court reporter notifying her that the reporter’s record had not
been received and requesting that she file the record within thirty days. On June 22,
4 2017, the court reporter filed with this Court a request for extension of time to file the
record, explaining that Franklin had not requested a reporter’s record and had not
arranged to pay for the record.
On July 27, 2017, this Court sent a letter to Franklin indicating that the reporter’s
record was weeks overdue. We explained that unless she forwarded proof that she had
cured the defect within ten days, this Court would consider and decide only those issues
that did not require a reporter’s record for a decision.
On August 8, 2017, we received a copy of a letter which Franklin drafted to the
court reporter on August 1, 2017. In it, Franklin requested the reporter’s record and
indicated her desire to make arrangements to pay for the record.
On August 18, 2017, this Court notified Franklin that the case would be submitted
for consideration on the briefs alone, concerning only those issues which could be
resolved without a reporter’s record. This Court’s letter further stated that her brief,
received on June 2, 2017, was noncompliant with Texas Rules of Appellate Procedure
9.4(d), (e), (h) and (i)(3), rule 9.5, and rule 37.1(d), (g) and (i). See id. R. 9.4(d), (e) &
(h), 9.5, 37.1(d), (g) & (i). Franklin did not subsequently make arrangements to pay for
the reporter’s record.
II. DISCUSSION
In her pro se brief, Franklin describes her five appellate issues as follows:
1. A sister fired because assistance with document of false doing.
2. JP court granted our plea.
3.
Free access — add to your briefcase to read the full text and ask questions with AI
NUMBER 13-17-00212-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
PEGGY FRANKLIN, Appellant,
v.
DAVID JAMES, CINDY JAMES, TERRAL BULLOCK, AND CHERYL BULLOCK, Appellees.
On appeal from the 24th District Court of DeWitt County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa Memorandum Opinion by Justice Rodriguez
By five issues, appellant Peggy Franklin appeals pro se from a judgment
partitioning a tract of land. Franklin challenges certain evidence that was introduced at
trial. Because the record contains no indication of what this evidence might have been,
we affirm. I. BACKGROUND
A. Proceedings Before the Trial Court
On February 25, 2016, appellees David James, Cindy James, Terral Bullock, and
Cheryl Bullock filed their original petition for partition of fifty acres of land situated in
DeWitt County, Texas (“the land”). Appellees alleged that together, they owned an
undivided 54.767% interest in the land. According to the petition, the remaining 45.233%
was owned, in fractions, by twenty-eight defendants or their unknown heirs.1
Appellees sued Franklin, among others. They alleged that Franklin owned a
.0296% interest in the land. Franklin retained counsel and, on March 24, 2016, filed an
answer and general denial. On June 21, 2016, Franklin joined three other defendants in
filing a joint amended answer, along with counterclaims for declaratory judgment and a
try-title action. Franklin alleged that she had superior title to appellees because she was
heir to Dennis Williams, who once owned the land.
By the time of trial, the appellees had amended their petition to allege that they
owned 61.4632% of the land. They continued to assert that Franklin owned a .0296%
interest.
The case was set for a bench trial on December 21, 2016. No reporter’s record
of the proceedings has been submitted to this Court.
On March 9, 2017, Franklin submitted a letter to the trial court explaining her view
that a certain document introduced into evidence at trial was “not all true—a false
1 The trial court signed orders permitting substitute service by publication for sixteen of the
defendants whose names or addresses could not be determined, and an attorney ad litem was appointed to represent their interests. 2 document.” Franklin attached to her letter what appears to be a death certificate, which,
according to the letter, showed that the evidence at trial was false. In her brief to this
Court, Franklin does not identify or explain the document in question, or how the death
certificate might relate to that document.
Franklin’s attorney filed a motion to withdraw on March 23, 2017.
On April 11, 2017, the trial court signed a statement of evidence describing the trial
proceedings and the evidence presented. See TEX. R. CIV. P. 244. According to the
statement, six exhibits were introduced at trial: a survey map of the land, two deeds
conveying the land, two family history charts, and a list of all owners and their respective
interests. The appellate record does not include a volume of trial exhibits, and Franklin
does not explain if—or where—these exhibits appear in the clerk’s record.
Also on April 11, 2017, the trial court entered a judgment granting the partition.
The judgment declared that appellees together had an undivided 61.4632% interest in
the land, Franklin had an undivided .0296% interest, and other defendants shared the
remaining interest. The judgment provided that because partition in kind was impossible,
the land would be sold, and the proceeds split in proportion to the owners’ interests.
Franklin timely filed her notice of appeal on April 24, 2017.
B. Proceedings Before this Court
On April 27, 2017, Franklin was informed that her notice of appeal did not comply
with Texas Rule of Appellate Procedure 9.5(e). See TEX. R. APP. P. 9.5(e).
By letter, the Clerk of this Court also informed Franklin that she was required to file
a docketing statement within fifteen days, and that she should make a written request to
3 the court reporter and make arrangement to pay for the appellate record within ten days.
Franklin was also advised that this Court’s website includes a wide variety of useful links
and specific information about how to obtain access to appellate records.
On May 4, 2017, Franklin filed a “Designation of Record of Instrument Sec. 12.001
Request” with the district clerk for DeWitt County. In it, she designated the following:
1. The Eviction notices that was at J.P. court (both of them)[.]
2. Letter that was sent to the Heirs about them signing their land over to the James’. Made them scared.
3. Writing of court report of what was said in court. The Original, correct one. Not the one you gave to our attorney to us. Not correct about what was said in Court on that day in court. Need all info of that day.
4. Need some subpoenas.
5. Need proof of #65991 (Arthur Barnett).
6. Need a physical survey. 50 acres from which a Black Jack 5 diam. (landmark)
We tried to but wouldn’t allow surveyor to do one.
Attached to Franklin’s designation of record were many documents. There was no
indication whether these documents were presented at trial and no explanation of the
significance of the documents. On May 18, 2017, the district clerk for DeWitt County
forwarded Franklin’s Designation of Record of Instrument Sec. 12.001 Request and the
attached documents to this Court.
The reporter’s record in this action was due on June 12, 2017. On June 21, 2017,
this Court sent a letter to the court reporter notifying her that the reporter’s record had not
been received and requesting that she file the record within thirty days. On June 22,
4 2017, the court reporter filed with this Court a request for extension of time to file the
record, explaining that Franklin had not requested a reporter’s record and had not
arranged to pay for the record.
On July 27, 2017, this Court sent a letter to Franklin indicating that the reporter’s
record was weeks overdue. We explained that unless she forwarded proof that she had
cured the defect within ten days, this Court would consider and decide only those issues
that did not require a reporter’s record for a decision.
On August 8, 2017, we received a copy of a letter which Franklin drafted to the
court reporter on August 1, 2017. In it, Franklin requested the reporter’s record and
indicated her desire to make arrangements to pay for the record.
On August 18, 2017, this Court notified Franklin that the case would be submitted
for consideration on the briefs alone, concerning only those issues which could be
resolved without a reporter’s record. This Court’s letter further stated that her brief,
received on June 2, 2017, was noncompliant with Texas Rules of Appellate Procedure
9.4(d), (e), (h) and (i)(3), rule 9.5, and rule 37.1(d), (g) and (i). See id. R. 9.4(d), (e) &
(h), 9.5, 37.1(d), (g) & (i). Franklin did not subsequently make arrangements to pay for
the reporter’s record.
II. DISCUSSION
In her pro se brief, Franklin describes her five appellate issues as follows:
1. A sister fired because assistance with document of false doing.
2. JP court granted our plea.
3. Judge was not accepting of our Lawyer’s, McKen Carrington, objections.
5 4. Wanting me to agree with his line of questioning, which would lead us down a wrong path.
5. Counted wrong signature and unnotarized document in the percentage.
As we understand her contentions, Franklin asserts that the trial court erred in
overruling her objections to certain evidence introduced at trial. The nature of Franklin’s
issues requires us to review the reporter’s record in order to assess the preservation and
merits of her complaints. See Parrish v. Rutherford, 159 S.W.3d 114, 117 (Tex. App.—
Corpus Christi 2004, no pet.) (considering the lack of a reporter’s record to be dispositive
on the question of whether an appellate issue had been preserved). However, Franklin
has not arranged for a reporter’s record to be filed with this Court.2
At or before the time for perfecting the appeal, the appellant must request in writing
that the official reporter prepare the reporter’s record. TEX. R. APP. P. 34.6(b). The
burden of providing a record showing error requiring reversal is on the appellant.
Williams Farms Produce Sales, Inc. v. R&G Produce Co., 443 S.W.3d 250, 257 (Tex.
App.—Corpus Christi 2014, no pet.). The appellant cannot prevail in any evidentiary
challenge without first meeting her burden of presenting a sufficient record on appeal.
Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007,
no pet.). Without any means of reviewing the evidence and proceedings that are the
2 In her brief, Franklin acknowledges the following:
The right of self-representation carries with it the responsibility to adhere to our rules of procedure and evidence, including the rules of appellate procedure if parties choose to represent themselves at the appellate level. Bolling [v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.)]; see Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). Courts regularly caution pro se litigants that they will not be treated differently than a party who is represented by a licensed attorney. See Mansfield, 573 S.W.2d at 184–85; Bolling, 315 S.W.3d at 895. 6 subject of appellant’s appeal, we cannot reverse the trial court’s order. See Williams
Farms, 443 S.W.3d at 258.
Because Franklin has not arranged for the filing of a reporter’s record, Franklin has
not carried her burden to demonstrate her entitlement to reversal. See id. at 257. We
overrule Franklin’s issues.
III. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ Justice
Delivered and filed the 17th day of May, 2018.