Robin E. Pempsell v. Megan N. Birt

• Court: Court of Appeals of Texas
• Decided: October 31, 2019
• Docket: 02-18-00259-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00259-CV ___________________________

ROBIN E. PEMPSELL, Appellant

V.

MEGAN N. BIRT, Appellee

On Appeal from the 325th District Court Tarrant County, Texas Trial Court No. 325-642296-18

Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

In this appeal, appellant Robin E. Pempsell challenges the trial court’s issuance

of a fifteen-year default protective order entered against her. In two narrow issues,

Pempsell complains of trial court error related to the protective-order hearing and to

the purported testimony of the applicant’s attorney during the hearing on Pempsell’s

motion for new trial. Because Pempsell has inadequately briefed her first issue and

has failed to preserve her second issue, we will affirm the trial court’s order.

II. BACKGROUND

On June 8, 2018, Meagan1 N. Birt applied for an Article 7A protective order

against Pempsell, her former mother-in-law, and alleged that Pempsell had engaged in

stalking.2 On June 14, 2018, Pempsell appeared pro se for the scheduled protective-

order hearing and signed a document in which she acknowledged that she had been

advised by the trial court of her right to employ an attorney to represent her presently

or at a later time and declared that she would represent herself at the hearing.

1 In the application for protective order as well as the protective order itself, Birt’s first name is spelled “Meagan.” At the hearing on the protective order, the reporter’s record reflects the spelling as “Meagan.” However, in various places in the record, including the notice of appeal, it is spelled “Megan.” 2 Unlike a family-violence protective order, an Article 7A protective order may be issued without regard to the relationship between the applicant and the alleged offender. See Tex. Fam. Code Ann. §§ 81.001, 82.002; Tex. Code Crim. Proc. Ann. art. 7A.01(a)(1).

2 According to Assistant Criminal District Attorney Cynthia Gustafson, who was

pursuing the protective order on Birt’s behalf, the trial court asked the parties to

reschedule their hearing because of its full docket. Gustafson had a two-hour

discussion with Pempsell regarding the options available to the parties. Although

Gustafson and Pempsell later disagreed about the result of that discussion, Gustafson

stated at the hearing on the motion for new trial that Pempsell “appeared to have a

very good understanding that her decision to leave the courthouse and the

proceedings would result in a final protective order being placed against [Pempsell]

for a period of [fifteen] years” and that she would be unable to communicate with her

grandchildren for the next fifteen years.3

Later that day, after Pempsell had left the courthouse, Gustafson secured the

default protective order from another judge based on Birt’s testimony. Pempsell

subsequently filed a verified motion for new trial. At the hearing on the motion for

new trial, while her attorney stated what Pempsell would testify to if called, Pempsell

did not testify. The trial court denied the motion for new trial.

3 Pempsell disputes the accuracy of Gustafson’s factual representations set forth in her affidavit attached to Birt’s response to Pempsell’s motion for new trial. Because we dispose of Pempsell’s issues on legal bases, we do not need to address these alleged discrepancies.

3 III. DISCUSSION

A. Sufficiency of the Evidence and Inadequate Briefing

Pempsell does not raise any broad issues claiming that the trial court erred in

granting the default protective order or in failing to grant the motion for new trial.

Rather, in her first issue, Pempsell contends that “[t]he trial court erred in issuing a

permanent protective order without a hearing to determine ‘whether there are

reasonable grounds to believe that the applicant [Birt] is the victim of . . .

stalking . . . [.]’”

In three paragraphs, Pempsell cites generally to one case and one code

provision and then complains broadly of the lack of documentary evidence and of the

use of leading questions at the protective-order hearing. In the first paragraph,

Pempsell notes that Article 7A.03 of the Code of Criminal Procedure “requires a

certain level of evidence to support issuance of a protective order” and cites Shoemaker

v. State of Texas for the Protection of C.L. in support of her assertion that “[o]n review, the

Court of Appeals uses both legal and factual sufficiency standards.” 493 S.W.3d 710,

715 (Tex. App.—Houston [1st Dist.] 2016, no pet.). In her second paragraph,

Pempsell notes—without citation to authority—that “[u]nder a legal sufficiency

standard, evidence is considered in the light most favorable to the prevailing party”

and then complains that “the only such evidence” was Birt’s testimony about

Pempsell’s uninvited attempts to see Birt’s children. Pempsell also complained that

Birt failed to proffer “a Police report” or “any documentary evidence” to support her 4 protective-order application. In her third paragraph, Pempsell asserts that “[u]nder

the Factual Sufficiency Challenge, this Court must ‘examine all of the record

evidence’” and cites to the single case referenced in the first paragraph. Pempsell

argues, “There is no record evidence so that the appellee cannot bear the burden on

appeal imposed by . . . Shoemaker[.]” See Shoemaker, 493 S.W.3d at 715. She also

complains that during the protective-order hearing, Gustafson spoke for four minutes

and asked Birt only leading questions. Pempsell concludes her issue by stating,

“Litigation moves right along when one side convinces the other side to leave the

courthouse.”

“The Texas Rules of Appellate Procedure require adequate briefing.” ERI

Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). An appellate brief

must contain a clear and concise argument for the contentions made in the brief, with

appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(i). An

issue presented in a brief is sufficient if it directs the reviewing court’s attention to the

error about which the complaint is made. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.

App.—El Paso 2007, no pet.). However, an appellant’s failure to cite legal authority

or provide substantive analysis of a legal issue presented results in waiver of the

appellant’s complaint. Flores v. James Wood Fin. LLC, No. 02-13-00022-CV, 2013 WL

3064455, at *1 (Tex. App.—Fort Worth June 20, 2013, no pet.) (citing Fredonia State

Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (recognizing long-

standing rule that error may be waived due to inadequate briefing) and Valadez, 5 238 S.W.3d at 845). We have no duty to perform an independent review of the

record and applicable law to determine whether the purported error of which a party

complains occurred. Karen Corp. v. Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118,

125 (Tex. App.—Fort Worth 2003, pet. denied). Were we to do so, we would be

forced to abandon our role as neutral adjudicators and become an advocate for that

party. Martinez v. El Paso Cty., 218 S.W.3d 841, 844 (Tex. App.—El Paso 2007, pet.

struck) (citing Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.—Amarillo 2003, pet.

denied)).

Chapter 7A of the Code of Criminal Procedure authorizes a person to seek a

protective order if, among other things, the person is the victim of stalking. See Tex.

Code Crim. Proc. Ann. art. 7A.01(a)(1); Tex. Penal Code Ann. § 42.07, .072. As

relevant to this case, a person commits the offense of stalking if the person, on more

than one occasion and pursuant to the same scheme or course of conduct that is

directed specifically at another person, knowingly engages in conduct that:

(1) constitutes an offense under [Penal Code] section 42.07 [Harassment] . . . ;

(2) causes the other person . . . to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and

(3) would cause a reasonable person to:

...

(D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

6 Tex. Penal Code Ann. § 42.07(a), .072(a). If, after a hearing, the trial court finds

reasonable grounds to believe that an applicant is the victim of stalking, it “shall issue

a protective order that includes a statement of the required findings.” Tex. Code

Crim. Proc. Ann. art. 7A.03(a)–(b).

In her brief, Pempsell provides no examination of the relevant law—Articles

7A.01(a)(1) and 7A.03(a)–(b) of the Code of Criminal Procedure and Sections 42.07(a)

and 42.072(a) of the Penal Code—nor analyzes how or whether the evidence before

the trial court was legally or factually insufficient to present reasonable grounds for

the trial court to believe that Birt was a victim of stalking. Tex. Code Crim. Proc.

Ann. arts. 7A.01(a)(1), .03(a)–(b); Tex. Penal Code Ann. § 42.07, .072. Because

Pempsell provides no substantive analysis in support of her issue, it is inadequately

briefed, presents nothing for our review, and is waived. Flores, 2013 WL 3064455, at

*1; Valadez, 238 S.W.3d at 845. Accordingly, we overrule Pempsell’s first issue.

B. Rule 3.08 Complaint and Preservation

In her second issue, Pempsell contends that the trial court erred during the

hearing on her motion for new trial when it allowed Gustafson “to testify”

unchallenged and at length “in violation of the ethical [r]ule against trial counsel

testifying as a witness, thus justifying a new trial.”4 Pempsell suggests that Gustafson

4 Although Pempsell complains of Gustafson’s “testimony” during the hearing, Gustafson was not sworn as a witness, but she did make numerous statements without objection. After Pempsell’s counsel concluded his initial arguments at the hearing, Gustafson asked, “May I make my response?” With the trial court’s 7 violated Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. See Tex.

Disciplinary Rules Prof’l Conduct R. 3.08, reprinted in Tex. Gov’t Code Ann., tit. 2,

subtit. G, app. A.

Birt contends that Pempsell has not preserved her Rule 3.08 complaint in

accordance with Rule 33.1. See Tex. R. App. P. 33.1. We agree.

To preserve a complaint for appellate review, a party must present to the trial

court a timely request, objection, or motion that states the specific grounds for the

desired ruling, if not apparent from the request’s, objection’s, or motion’s context.

Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this,

error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

The objecting party must also get a ruling—either express or implied—from the trial

court. Tex. R. App. P. 33.1(a)(2)(A), (b); see Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex.

2002). If the trial court refuses to rule, the party preserves error by objecting to that

refusal. Tex. R. App. P. 33.1(a)(2)(B). If the trial court does not rule and the party

does not object to the refusal to rule, error is not preserved. Id.

Because Pempsell did not make an objection in the trial court on the basis of

Rule 3.08, her second issue is not preserved. See Anderson Producing Inc. v. Koch Oil Co.,

permission, and in the absence of any objection, Gustafson responded. “Normally, an attorney’s statements must be under oath to be considered evidence.” Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). However, the opponent of the testimony can waive the oath required by failing to object when the opponent knows or should know that an objection is necessary. Id.

8 929 S.W.2d 416, 423 (Tex. 1996) (holding that because party did not object at trial

based on Rule 3.08, party waived complaint on appeal). Accordingly, we overrule

Pempsell’s second issue.

IV. CONCLUSION

Having overruled both of Pempsell’s issues on appeal, we affirm the trial

court’s order.

/s/ Dana Womack

Dana Womack Justice

Delivered: October 31, 2019