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In re J.C.W.

Court of Appeals of Texas, Fourth District, San Antonio

May 10, 2017


         From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2015EM504960 Honorable Nick Catoe, Jr., Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice Luz Elena


          Rebeca C. Martinez, Justice

         D. Chapa, Justice, Kevin O'Dell challenges the trial court's order establishing the parent-child relationship and ordering that he pay retroactive child support. We affirm the judgment of the trial court.


         The Attorney General filed a petition to establish O'Dell as the father of J.C.W. At the time of trial, O'Dell was incarcerated in state jail and appeared pro se by telephone. O'Dell argued that the child's mother, Christie Lafleur, should not have custody because she physically abused and neglected J.C.W. and would leave him for extended periods of time. O'Dell requested that his mother, who was present, be called to testify as to these allegations. The trial court twice informed O'Dell that his mother was not a party to the case and could not be called to testify. The trial court further informed O'Dell that if he believed Lafluer to be an unfit mother, his remedy was to involve "CPS."

         At the conclusion of the trial, the trial court signed "Order Establishing the Parent-Child Relationship" in which it granted sole managing conservatorship to Lafleur and ordered that the child have supervised visits with O'Dell upon his release from state jail. The trial court ordered zero current child support, but rendered a retroactive support judgment in the amount of $7, 056 covering the 36 months prior to O'Dell's incarceration. The trial court ordered O'Dell to pay $100 per month toward the judgment beginning December 1, 2015. O'Dell timely appealed.


         Construing his issues on appeal liberally, O'Dell argues that he was denied a fair hearing due to a poor telephone connection and lack of a court-appointed attorney. He also contends that the trial court erred by not allowing him to present witnesses and evidence and by appointing Lafleur managing conservator and awarding her retroactive child support. By order dated April 1, 2016, this court struck O'Dell's brief filed on March 29, 2016. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex. App.-San Antonio 1999, pet. denied) ("A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure."). Our order provided that an appellate brief must contain "argument for the contentions made, with appropriate citations to authorities and to the record." See Tex. R. App. P. 38.1(i) (requiring "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). We also attached a copy of Rule 38.1 to the order for O'Dell's benefit. O'Dell filed his amended brief on June 17, 2016. O'Dell's amended brief, however, does not contain any citation to legal authority in support of his issues. In addition to the lack of citations, his complaint regarding conservatorship is nothing more than unsupported suspicions regarding Lafleur's unfitness as a mother. Similarly, his complaint regarding child support is no more than an unsubstantiated assertion that he and his family have already supported the child for over half of his life. His complaint regarding exclusion of witnesses is likewise not supported by any argument or legal citations. Because O'Dell failed to cite applicable authority, failed to provide relevant citations to the record, and failed to provide substantive analysis for all of the issues presented in his brief, nothing is presented for our review. See Tex. R. App. P. 38.1(i); see, e.g., Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.-Dallas 2006, no pet.) (holding that failure to cite applicable authority or provide substantive analysis waives issue on appeal); WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (holding that failure to offer argument, citations to record, or authority waives appellate review); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (holding appellate court may use its discretion to find issues waived due to inadequate briefing).

         In the interest of fairness, however, we will address O'Dell's contentions regarding appointment of counsel and his telephonic appearance. O'Dell has not identified any constitutional or statutory right to counsel under the circumstances. While an indigent civil litigant may request the trial court to appoint counsel, see Tex. Gov't Code Ann. § 24.016 (West 2004), such appointment is entirely within the discretion of the trial court, see Gibson v. Tolbert, 102 S.W.3d 710, 712-13 (Tex. 2003) (we review whether trial court abused discretion in denying motion to appoint counsel by considering whether underlying case involved "exceptional circumstances"). O'Dell, however, did not file a motion for appointment of an attorney until after the judgment in this case was signed. Thus, even if he had demonstrated circumstances characterizing this case as exceptional, his failure to make the request known to the trial court in a timely manner waives consideration of his complaint on appeal. See Tex. R. App. P. 33.1(a).

         At trial, O'Dell complained six times of being unable to hear the proceedings. On four of those occasions, O'Dell complained that he could not hear statements made by the Attorney General's trial attorney. When she repeated herself more loudly, O'Dell did not make a further complaint that he could not hear. O'Dell likewise once complained that he could not hear the trial court, who then repeated its statements. Finally, O'Dell complained that he could not hear when the trial court was making his own calculations of retroactive support in a low voice. After the trial court explained what it was doing, O'Dell did not further complain. Our review of the approximately 20-minutes-long audio recording of the hearing reflects that O'Dell fully participated in the hearing, and was not prohibited from presenting his case due to a poor telephone connection. At the beginning of the proceedings, O'Dell even interrupted the trial court and asked that all parties be identified on the record and that the Rule be invoked. The trial court complied with his request and accommodatingly answered all questions that O'Dell asked. At the conclusion of the evidence, O'Dell made no further complaint regarding his inability to hear or otherwise indicated he was unable to participate in any portion of the hearing. Accordingly, we cannot conclude that O'Dell was denied a fair trial. See Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001) (recognizing that Texas Constitution's "due course of law provision at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner"); Jordan v. Jordan, 653 S.W.2d 356, 358 (Tex. App.-San Antonio 1983, no writ) ("Fundamental to the concept of due process is the right to be heard.").


         The judgment of the trial ...

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