Jesse Ray Lawrence v. Candice Nicole Jones

Affirmed and Memorandum Opinion filed March 26, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00270-CV

JESSE RAY LAWRENCE, Appellant
V.

CANDICE NICOLE JONES, Appellee

On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 119079-F

MEMORANDUM OPINION

Appellant Jesse Ray Lawrence appeals from a final decree of divorce.
Lawrence did not appear at the bench trial on appellee Candice Nicole Jones’s
petition for divorce because he was incarcerated. Lawrence, representing himself
both at trial and on appeal, presents three issues for our review: (1) the trial court
violated his due process rights by refusing to permit him to appear at the bench trial;
(2) his right to a jury trial was violated; and (3) the trial refused to rule on numerous
motions or writs.
After thorough review of the record, we overrule each of Lawrence’s issues.
We affirm the final decree of divorce.

Background

Lawrence and Jones were married in September 2021. There were no children
of the marriage. Jones filed a pro se petition for divorce in August 2022. Lawrence
was not served, but he answered with a general denial in November 2022.

Because he was incarcerated, Lawrence filed a motion for bench warrant in
December 2022, in which he stated he was being held without bond in the Brazoria
County Detention Center and requested that the court issue a writ of habeas corpus
to bring him before the court. He also filed numerous other motions, including a
“Request for Discovery,” a “Writ of Habeas Corpus Asking for Dismissal,” a
“Motion to Admit Letters as Evidence,” a “Motion for Continuance,” a “Letter to
Obtain Help,” a “Motion for Court Order Return of Assets,” a “Motion for Court
Costs and Attorney Fees to Be Paid by Petitioner,” a “Motion for Trial by Jury,” a
“Motion to Admit Cell Phone into Evidence as Exhibit,” a “Motion for the Court to
Appoint Counsel,” and a “Motion for Background and Divorce Records of
Im[m]ediate Family and All Witness [I]nvolved.” None of these motions contained
certificates of service, nor were they noticed for hearings. Lawrence additionally
filed an application for a court-appointed attorney, which was denied.

Meanwhile, Jones obtained counsel, who appeared in January 2023. After a
reset to provide proper notice to Lawrence, the case was called for a bench trial on
April 4. Because Lawrence did not appear, the trial court granted the divorce based
on Jones’s and her counsel’s testimony. The court found that Lawrence was “at fault
in the divorce due to his criminal activity.” In the decree, Lawrence was ordered to
pay various community credit card debts and to reimburse Jones $3,500 for
attorney’s fees. Lawrence did not file a motion for new trial.
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Lawrence filed a timely notice of appeal.

Analysis

Lawrence represented himself at trial and continues to do so on appeal. He
filed a three-page handwritten brief, which does not comply with our briefing rules.1
Lawrence purportedly filed a restricted appeal and contends that error is apparent on
the fact of the record because: (1) his due process rights were violated by the trial
court’s refusal to permit him to appear at the bench trial; (2) his right to a jury trial
was violated; and (3) the trial refused to rule on numerous motions or writs.

The trial court signed the divorce decree on April 4, 2023, and Lawrence filed
a “notice of restricted appeal” on April 19, 2023. Texas Rule of Appellate Procedure
30 provides that “[a] party who did not participate—either in person or through
counsel—in the hearing that resulted in the judgment complained of and who did not
timely file a postjudgment motion or request for findings of fact and conclusions of
law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice
of appeal within the time permitted by Rule 26.1(c).” Tex. R. App. P. 30 (emphasis
added). Lawrence filed his notice of appeal within thirty days of the judgment,
which is within the time permitted by Rule 26.1(a). Tex. R. App. P. 26.1(a). Thus,
Lawrence did not meet the requirements of a restricted appeal, so we consider his
appeal to be an ordinary, unrestricted appeal. See Admoren-Nweke v. State, No, 01-
19-01001-CR, 2020 WL 7391706, at *3-4 (Tex. App.—Houston [1st Dist.] Dec. 17,

1
We note that pro se litigants such as Lawrence are held to the same standards as licensed
attorneys and must comply with all applicable rules of procedure. Reule v. M & T Mortg., 483
S.W.3d 600, 608 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); see also Burbage v.
Burbage, 447 S.W.3d 249, 258 (Tex. 2014) (explaining that courts may not stray from procedural
rules simply because litigant represent self.). Nonetheless, we construe Lawrence’s brief liberally
to reach his appellate issues on the merits when possible. Harrison v. Reiner, 607 S.W.3d 450,
457 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (citing Weeks Marine, Inc. v. Garza, 371
S.W.3d 157, 162 (Tex. 2012)).

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2020, no pet.) (mem. op., not designated for publication) (“Because he filed his
notice of appeal within the time permitted by Rule 26.1(a), Admoren-Nweke’s
appeal is excluded from the scope of a restricted appeal, and we consider the appeal
to be an ordinary, unrestricted appeal.”); Human Biostar, Inc. v. Celltex Therapeutics
Corp., 514 S.W.3d 844, 847 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)
(treating purported restricted appeal filed within thirty days of appealable order as
regular appeal). We turn to the merits of Lawrence’s complaints.

A. Appearance at Bench Trial

First, Lawrence contends that the trial court erred by refusing to permit him
to appear for the bench trial either in person or through affidavit, deposition,
telephone, or other effective means.

As noted above, Lawrence filed a motion for a bench warrant. The trial court
did not rule on Lawrence’s motion before proceeding to trial.2 To the extent the trial
court was aware of Lawrence’s request, by proceeding to trial without issuing the
bench warrant, the trial court implicitly denied it. See In re Z.L.T., 124 S.W.3d 163,
165 (Tex. 2003). The decision to grant or deny a request for a bench warrant lies
within the trial court’s discretion. See id.

Litigants cannot be denied access to the courts simply because they are
inmates. Id. (citing Hudson v. Palmer, 468 U.S. 517, 523 (1984)). But an inmate
does not have an absolute right to appear in person for every court proceeding, and

2
None of Lawrence’s motions, including his motion for a bench warrant, were set for a
hearing or submission. A trial court is not required to consider a motion that is not brought to its
attention. In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding);
Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
Showing that a motion was filed with the court clerk does not constitute proof that the motion was
brought to the trial court’s attention or presented to the trial court with a request for a ruling. In re
Wigley, No. 14-19-00749-CV, 2019 WL 5078650, at *2 (Tex. App.—Houston [14th Dist.] Oct.
10, 2019, orig. proceeding) (mem. op.); Smith, 263 S.W.3d at 96.

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the inmate’s right of access must be weighed against the protection of our
correctional system’s integrity. Id. Texas courts recognize a variety of factors that
trial courts should consider when deciding whether to grant an inmate’s request for
a bench warrant, including: (1) the cost and inconvenience of transporting the
prisoner to the courtroom; (2) the security risk the prisoner presents to the court and
public; (3) whether the prisoner’s claims are substantial; (4) whether the matter’s
resolution reasonably can be delayed until the prisoner’s release; (5) whether the
prisoner can and will offer admissible, noncumulative testimony that cannot be
effectively presented by deposition, telephone, or some other means; (6) whether the
prisoner’s presence is important in judging his demeanor and credibility; (7) whether
the trial is to the court or a jury; and (8) the prisoner’s probability of success on the
merits. See id. at 165-66. The movant, regardless of his status as an inmate, bears
the sole burden of providing the trial court with factual information pertinent to the
issue of whether his interest in appearing outweighs the impact on the justice system.
Id. The trial court has no independent duty to inquire into relevant facts not provided
by the moving party. Id. at 166.

Here, although Lawrence was notified of the trial date, he did not provide the
trial court with adequate information for it to assess whether to grant his request for
a bench warrant. The only pertinent information contained in his request for a bench
warrant is that he “is being held without bond by and confined in the Brazoria County
Detention Center in Angleton, Brazoria County, Texas by the Sheriff of Brazoria
County.” When, as here, the inmate fails to present sufficient information for the
trial court to evaluate his bench warrant request under the Z.L.T. factors, the trial
court does not abuse its discretion in denying the request. See id.; Risley v. Alvarez,
No. 14-10-00015-CV, 2011 WL 397948, at *6 (Tex. App.—Houston [14th Dist.]
Feb. 8, 2011, pet. denied) (mem. op.); Baugh v. Baugh, No. 14-07-00391-CV, 2008

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WL 2068081, at *3 (Tex. App.—Houston [14th Dist.] May 15, 2008, no pet.) (mem.
op.).

Lawrence’s motion for a bench warrant, liberally construed, arguably includes
a request that he be allowed to appear by alternate means, if the court determined
that his personal appearance was inappropriate or not warranted. As the supreme
court observed in Z.L.T., however, it is the inmate’s burden to provide factual
information showing why his interest in appearing outweighs any impact on the
correctional system, and trial courts have no independent obligation to inquire
beyond the scope of the inmate’s request for relief. Z.L.T., 124 S.W.3d at 166;
Ringer v. Kimball, 274 S.W.3d 865, 869 (Tex. App.—Fort Worth 2008, no pet.);
Graves v. Atkins, No. 01-04-00423-CV, 2006 WL 3751612, at *3 (Tex. App.—
Houston [1st Dist.] Dec. 21, 2006, no pet.) (mem. op.). Lawrence’s motion is silent
as to why he should be entitled to appear by video conference or telephone. Thus,
we cannot say that the trial court abused its discretion by denying Lawrence’s
request, if any, to appear by alternate means.3

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Accord J.G. v. Tex. Dep’t of Family & Protective Servs., 592 S.W.3d 515, 522 (Tex.
App.—Austin 2019, no pet.) (“[T]he inmate has the sole burden to ‘request access to the court
through these alternate means and to demonstrate why a trial court should authorize them.’”)
(quoting Brown v. Preston, No. 01-16-00556-CV, 2017 WL 4171896, at *3 (Tex. App.—Houston
[1st Dist.] Sept. 21, 2017, no pet.) (mem. op.)); In re J.M.L.P., No. 06-15-00043-CV, 2015 WL
7540553, at *3-4 (Tex. App.—Texarkana Nov. 25, 2015, pet. denied) (mem. op.) (when inmate
provided no information regarding whether video conferencing technology was available at prison
unit, whether he had access to video or telephone conferencing, or any contact information for the
appropriate authorities at his unit, trial court did not abuse its discretion in denying motion to
participate by telephone or video conference); In re T.R.C., Jr., No. 13-11-00616-CV, 2012 WL
3537828, at *3 (Tex. App.—Corpus Christi Aug. 16, 2012, no pet.) (mem. op.) (overruling
inmate’s issue contending trial court abused its discretion by not allowing him to appear by “other
effective means” in part because inmate provided “no factual support . . . that would demonstrate
to the trial court why it should authorize such an alternate appearance”); Ringer, 274 S.W.3d at
869 (when inmate failed to explain what his testimony would establish, why it would be helpful,
or how he was harmed by not being allowed to testify, trial court did not abuse its discretion by
implicitly denying motion to appear by video conference); Graves, 2006 WL 3751612, at *3
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Because Lawrence’s bench warrant motion does not address the Z.L.T.
factors, the trial court did not abuse its discretion in denying the motion.
Accordingly, we overrule his first issue.

B. Right to Jury Trial

Lawrence also mentions that he timely requested a jury trial and filed a
financial statement claiming indigence. To the extent he complains that the trial
court’s denial of his right to a jury trial is error, we disagree.

The right to a jury trial is guaranteed by the Texas Constitution. See Tex.
Const. art. I, § 15 (stating “[t]he right of trial by jury shall remain inviolate”). In
civil cases, the right to a jury trial is not automatic and instead arises only when a
party has demanded a jury trial and paid the applicable jury fee. In re J.N.F., 116
S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2003, no pet.). We review a trial
court’s refusal to grant a jury trial for an abuse of discretion. Mercedes-Benz Credit
Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).

A party desiring a jury trial must make a written request for it not less than
thirty days before the date set for trial of the cause on the non-jury docket. Tex. R.
Civ. P. 216(a). A party must also deposit a fee with the clerk of the court within the
time for making a written request for a jury trial. Tex. R. Civ. P. 216(b). A party
who is unable to afford the deposit for the jury fee shall file an affidavit to that effect
within the time for making such deposit, and the court shall then order the clerk to
enter the suit on the jury docket. Tex. R. Civ. P. 217. An inmate, such as Lawrence,
may file an unsworn declaration in lieu of this affidavit. Tex. Civ. Prac. & Rem.
Code § 132.001; see J.N.F., 116 S.W.3d at 431.

(explaining that “the burden rests squarely on the prisoner-inmate to request access to the court
through these alternate means and to demonstrate why a trial court should authorize them”).

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Here, Lawrence does not dispute that he did not pay the jury fee, and he did
not file a declaration of an inability to pay costs until after the trial court signed the
divorce decree; i.e., after the trial.4 Accordingly, Lawrence’s complaint that the trial
court violated his right to a jury trial lacks merit. E.g., Aberegg v. Ceschan, No. 05-
12-01000-CV, 2014 WL 2921657, at *2 (Tex. App.—Dallas June 25, 2014, no pet.)
(mem. op.); see also Taylor v. Taylor, 63 S.W.3d 93, 100-02 (Tex. App.—Waco
2001, pet. denied) (holding that trial court abused its discretion by denying inmate’s
request for jury trial where inmate “filed his jury demand and declaration [of
inability to pay costs] more than thirty days before trial”).

We overrule his jury trial complaint.

C. Failure to Rule on Motions

Lawrence also states in his brief that he had “a total of 12 motions and/or writs
that went unheard, each one raising another point of error, that could all be backed
up by case log and addressed accordingly.” As noted above, however, none of
Lawrence’s motions were set for a hearing or submission.

To preserve a complaint on appeal concerning a trial court’s refusal to rule,
the record must show that the party presented the motion to the trial court. See Tex.
R. App. P. 33.1(a); see also Ballard v. King, 652 S.W.2d 767, 769 (Tex. 1983) (“A
point of error based on the trial court’s ruling on a motion of any kind must be
supported by a showing in the record that the motion was presented to and acted
upon by the trial court.”); In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—
Texarkana 2008, orig. proceeding). The mere fact that a motion was filed with the
court clerk does not constitute proof that the motion was brought to the trial court’s

4
At the start of the bench trial, the trial court noted on the record that Lawrence had not
paid the jury fee or filed “a declaration or affidavit of inability to pay costs.”

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attention or presented to the trial court with a request for a ruling. See Murphree v.
Cooper, No. 14-11-00416-CV, 2012 WL 2312706, at *1 (Tex. App.—Houston [14th
Dist.] June 19, 2012, no pet.) (mem. op.); Smith, 263 S.W.3d at 96. Presentation
requires that the motion be set for submission or scheduled for hearing so that the
movant’s request actually comes to the trial court’s attention. E.g., Moore v. Carder,
No. 01-22-00156-CV, 2023 WL 3102582, at *2 (Tex. App.—Houston [1st Dist.]
Apr. 27, 2023, no pet.) (mem. op.); O’Kane v. Chuoke, No. 01-05-00523-CV 2007
WL 926494, at *3 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, no pet.) (mem.
op.) (holding that ruling on motion for continuance was not preserved for review
when movant did not set motion for consideration by submission or hearing).

Lawrence’s pro se status does not excuse him from these preservation-of-error
requirements. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam)
(“[P]ro se litigants are not exempt from the rules of procedure.”); Jackson v. Jackson,
No. 14-07-00917-CV, 2009 WL 1124354, at *2 (Tex. App.—Houston [14th Dist.]
Apr. 28, 2009, no pet.) (mem. op.). Although Lawrence filed numerous motions,
the record does not reflect that he set the motions for hearing or otherwise brought
them to the trial court’s attention. Thus, Lawrence has not preserved this issue for
our review. E.g., Tex. R. App. P. 33.1(a); Noel v. Oakbend Med. Ctr., No. 01-21-
00206-CV, 2022 WL 3031347, at *7-8 (Tex. App.—Houston [1st Dist.] Aug. 2,
2022, pet. denied) (mem. op.); In re T.J.S., No. 05-15-00138-CV, 2016 WL
4131959, at *5 (Tex. App.—Dallas Aug. 2, 2016, no pet.) (mem. op.).

Because this issue presents nothing for our review, we overrule it.

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Conclusion

Having overruled Lawrence’s issues, we affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.

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