Eric Wade Garza v. Dena Jenette Garza

Affirmed and Memorandum Opinion filed March 14, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00810-CV

ERIC WADE GARZA, Appellant

V.
DENA JEANETTE GARZA, Appellee

On Appeal from the 245th District Court
Harris County, Texas
Trial Court Cause No. 2020-72557

MEMORANDUM OPINION

Pro se appellant Eric Wade Garza (“Eric”) appeals the trial court’s final
divorce decree terminating his marital union to appellee Dena Jeanette Garza
(“Dena”). In eight issues we have reorganized, Eric argues: the trial court erred (1)
in its application of Texas Rule of Civil Procedure 193.6 and Harris County Family
Local Rule 4; (2) when it allowed Dena to submit surprise exhibits for trial; (3) in
allowing Dena’s witness to testify as an expert even though Dena did not designate
him as an expert prior to trial; (4) in denying his motion for a continuance; (5) when
it ordered the sale of “jointly owned separate property” without adhering to statutory
requirements and applicable law; (6) by failing to make findings as to the total value
of the community estate, the percentage of the community estate awarded to each
party, and the value of “the assets, debts[,] and offsets which compromise the
community estate”; (7) in its orders relating to the “jointly owned separate property”;
and (8) that the evidence is legally and factually insufficient to support three of the
trial court’s findings of fact. We affirm.

I. BACKGROUND

Eric and Dena married in 2016. In November 2020, Dena filed a petition for
divorce against Eric. Eric answered and proceeded pro se at the trial court.

At the pre-trial conference on May 13, 2022, Eric announced he was ready for
trial. But three days later, Eric filed an unsworn and unsupported motion for
continuance, stating that he needed time to find an attorney. On May 23, the case
was called to trial, at which time Eric argued his motion for continuance, which the
trial court denied. Trial began on May 23, 2022. The trial court heard testimony
from Benjamin Jeffries (“Jeffries”), the owner of National Screening Center and
National Assessment Center; Dena; and Eric.

On August 1, 2022, the trial court signed a final judgment, ordering that
Dena’s sole and separate property included: (1) fifty percent of the net proceeds from
the sale of the marital home; all household items, clothing, jewelry, and cash in
Dena’s possession and subject to her sole control; all 401k and retirement plans from
Dena’s previous employment; and a 2020 Lexus vehicle. The trial court similarly
awarded Eric: (1) fifty percent of the net proceeds from the sale of the marital home;
all household items, clothing, jewelry, and cash in Eric ’s possession and subject to
his sole control; all 401k and retirement plans from Eric’s previous employment;
and the motor vehicle in Eric’s possession.
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Eric requested findings of fact and conclusions of law, which the trial court
issued on September 29, 2022. Eric then filed a request for additional findings of
fact and conclusions of law, but the trial court did not issue any additional findings
or conclusions. This appeal followed.

II. EVIDENTIARY RULINGS

In his first three issues, Eric argues the trial court erred (1) in its application
of Texas Rule of Civil Procedure 193.6 and Harris County Family Local Rule 4
because it failed to exclude Dena’s evidence; (2) when it allowed Dena to submit
surprise exhibits for trial; and (3) in allowing Jefferies to testify as an expert even
though Dena did not designate him as an expert prior to trial. In essence, Eric argues
that the trial court erred because it admitted the evidence concerning Eric’s drug use
and recent drug test. Eric challenges the admissibility of the results of his drug test
and Jefferies’s testimony offered and admitted at trial.

A. STANDARD OF REVIEW

We review evidentiary rulings using an abuse of discretion standard. U-Haul
Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). A trial court abuses its
discretion if it rules without regard to guiding principles or if its decision was
arbitrary or unreasonable. See Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d
704, 717 (Tex. 2020).

However, there can be no complaint of an abuse of discretion when the trial
court is not asked to exercise its discretion. Gonzalez v. Wasserstein, No. 01-20-
00826-CV, 2022 WL 3268528, at *6 (Tex. App.—Houston [1st Dist.] Aug. 11,
2022, no pet.) (mem. op.). In other words, to preserve a complaint for appellate
review, the appellant must have raised an objection to the trial court and obtained a
ruling. See Tex. R. App. P. 33.1(a); see also In re B.L.D., 113 S.W.3d 340, 352 (Tex.

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2003) (“[W]e have declined to review unpreserved complaints even when a parent’s
constitutional interests are implicated.”). The record must show that: (1) the
complaint was presented to the trial court by a timely request, objection, or motion
stating the specific grounds for the desired ruling if the specific grounds are not
apparent from the context; and (2) the trial court ruled on the request or refused to
rule on the request and the party objected to the refusal. See Tex. R. App. P. 33.1(a);
Guillory v. Boykins, 442 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2014, no
pet.).

B. ANALYSIS

Here, Eric argues that the arguments advanced under his first three issues were
preserved because of the following exchange at the trial court:

[Trial Court]: All right. And have you circulated your
exhibits already?
[Dena]: I have, Judge.
...
[Trial Court]: And [Dena’s counsel], when did you send the
exhibits?
[Dena’s counsel]: I think we just sent them to Ramona today.
...
[Trial Court]: Correct. And [Eric], you got a copy of those?
[Eric]: Yeah, I got it literally like maybe 30, 45
minutes ago. So I haven’t had a chance to
even look at them.
[Dena’s counsel]: Those are updated to include the drug test
results but the other ones were circulated
prior to pretrial.
[Trial Court]: Okay. All right. So once you -- somebody
emails them, just let me know and I’ll verify
we received it.

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[Dena’s counsel]: Okay. Yes, I just forwarded the email I sent
to Ramona today.
[Trial Court]: And Tish, I forwarded that to you.
[Court Reporter]: Okay. Thank you.
Contrary to Eric’s argument, he did not make a request, objection, or motion
at the trial court based on Harris County Local Rule 4 or Texas Rule of Civil
Procedure 193.6 or request that any of the complained-of evidence be excluded. See
Tex. R. App. P. 33.1(a); see also Tex. R. Civ. P. 193.6(a) (“A party who fails to
make, amend, or supplement a discovery response, including a required disclosure,
in a timely manner may not introduce in evidence the material or information that
was not timely disclosed . . . .”); Harris Cnty. (Tex.) Fam. Div. Loc. R. 4.4.4
(providing that disclosures required under rule 4 shall be made within thirty days
after respondent files respondent’s first pleading or makes a general appearance in
the case). Furthermore, Eric did not object to the admission of the complained-of
drug test results or Jeffries’s testimony when it was offered into evidence, nor did
he obtain a running objection. See Tex. R. App. P. 33.1(a); Katy Int’l, Inc. v. Jiang,
451 S.W.3d 74, 94 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“If a party
later permits the same or similar evidence to be introduced without objection, the
error in the admission of testimony generally is harmless and is waived, unless the
party obtains a running objection.”).

We reject Eric’s argument that he has preserved these issues for our review
and overrule his first three issues. See Tex. R. App. P. 33.1(a); see also Wheeler v.
Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam) (“We certainly agree that pro
se litigants are not exempt from the rules of procedure.”); Wade v. Dominion at
Woodlands, No. 14-17-00777-CV, 2018 WL 3354549, at *2 n.4 (Tex. App.—
Houston [14th Dist.] July 10, 2018, no pet.) (mem. op.) (“We construe pro se filings
and brief liberally but nonetheless hold pro se litigants to the same standards as

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licensed attorneys.”).

III. MOTION FOR CONTINUANCE

In his fourth issue, Eric argues the trial court erred in denying his motion for
continuance in which he requested additional time to hire an attorney.

A. STANDARD OF REVIEW & APPLICABLE LAW

We review the trial court’s ruling on a motion for continuance for an abuse of
discretion. See Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (orig.
proceeding). Texas Rule of Civil Procedure 251 provides that a motion for
continuance shall not be granted without “sufficient cause supported by affidavit, or
by consent of the parties, or by operation of law.” Tex. R. Civ. P. 251. Thus, when
a motion is unsupported by verified facts, appellate courts generally presume the
trial court did not abuse its discretion in denying the motion. See In re S.M.H., 523
S.W.3d 783, 797 (Tex. App.—Houston [14th Dist.] 2017, no pet.); W.W. Webber,
L.L.C. v. Harris Cnty. Toll Rd. Auth., 324 S.W.3d 877, 880 (Tex. App.—Houston
[14th Dist.] 2010, no pet.).

Additionally, “neither the Texas nor the United States Constitution guarantees
a right to counsel in a civil suit.” Approximately $42,850 v. State, 44 S.W.3d 700,
702 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Thus, “absence of counsel will
not be good cause for a continuance or postponement of the cause when called for
trial, except it be allowed in the discretion of the court, upon cause shown . . . .” Tex.
R. Civ. P. 253.

B. ANALYSIS

On May 16, 2022, Eric filed an unsworn written motion for a continuance,
seeking a reset of trial scheduled for May 23, 2022. In the motion, Eric stated he
sought a continuance because he needed time to hire a lawyer, to get legal advice,

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and to prepare to represent himself. Eric elaborated:

I need additional time to hire an attorney for trial. I was hopeful that we
could reach an agreement at mediation but we were unable to. I also
need additional time due to the fact that I have personal knowledge that
contradicts [Dena’s] disclosures and/or trial documents and need the
additional time to obtain important evidence and/or subpoena
witnesses. Without a true and complete record of the martial [sic] estate,
justice cannot properly be served.
Notably, Eric did not argue that he needed a continuance because he was
surprised or prejudiced by Dena’s exhibits, because the exhibits were provided too
close to trial, or because the timing of the tender of the exhibits was in violation of
any rule. When denying Eric’s motion for a continuance, the trial court commented:

[I]f this wasn’t as old of a case, I would be much more sympathetic to
giving you a little extra time, but since you’ve been a party to this case
since December of 2020 and it seems like your -- your motions largely
are arguing that you’re not ready, there’s really -- it’s hard to justify
additional delay for such an old case when you’ve -- you’ve had the
time to hire an attorney. And it looks like this was even set for trial back
in March on the 7th and you would of [sic] had notice back then of
when the trial setting was and the opportunity to be able to try to line
somebody up even if not to help at mediation but to -- to be ready to --
to jump in on final trial. So I just don’t think the motion is timely and
it’s denied, and we’ll proceed to trial today.
We conclude Eric’s fourth issue is unmeritorious for several reasons. First,
Eric’s sole argument on appeal is that the trial court erred in overruling his motion
for continuance because he was not prepared for trial because Dena did not provide
her “disclosures” in accordance with the deadlines found in Harris County District
Courts Local Rule 4.4.4. However, Eric did not make any specific request, objection,
or motion for a continuance based on local Rule 4.4.4 at the trial court, and thus, has
not preserved this argument. See Tex. R. App. P. 33.1(a).

Furthermore, the court noted that Eric had ample opportunity to retain an

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attorney, that nine days before trial at the pretrial conference he announced that he
was ready for trial, and he raised his motion for continuance alleging that he was not
ready for trial seven days before trial. Based on this record, Eric did not demonstrate
that his need to hire an attorney was not based on his own negligence or fault. See
In re Marriage of Harrison, 557 S.W.3d 99, 117 (Tex. App.—Houston [14th Dist.]
2018, pet. denied).

Finally, Eric’s motion was unsworn and unsupported by affidavit. See Tex. R.
Civ. P. 251. Accordingly, we cannot conclude that the trial court’s denial of Eric’s
motion was unreasonable or arbitrary. See, e.g., Hamm v. Millenium Income Fund,
178 S.W.3d 256, 270 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (holding
that lack of verification or affidavit with continuance motion was sufficient basis
alone for the trial court to deny the motion); see also, e.g., In re S.L.L., No. 09-09-
00429-CV, 2011 WL 1224983, at *1 (Tex. App.—Beaumont Mar. 31, 2011, pet.
denied) (mem. op.) (concluding that trial court did not abuse discretion in denying
pro-se motion for continuance to obtain attorney that was not supported by affidavit,
filed two days before hearing, and noting that there was no statement of efforts made
to obtain counsel and that trial court “could reasonably conclude that [party] did not
carry her burden of showing that the delay in obtaining counsel was not her fault”).

We overrule Eric’s fourth issue.

IV. SALE OF MARITAL HOME

In his fifth issue, Eric argues the trial court erred when it ordered the sale of
the marital home without adhering to statutory requirements and applicable law. In
his sixth issue, Eric argues that the trial court erred in the ordering the sale of the
property because it was Eric and Dena’s jointly-owned separate property, and the
trial court may only divide the marital estate in a divorce proceeding. We will
address these two issues together.
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Generally, mootness defeats a court’s subject-matter jurisdiction over a
particular controversy. See Messier v. Messier, 458 S.W.3d 155, 161 (Tex. App.—
Houston [14th Dist.] 2015, no pet.); Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d
321, 324 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“The mootness
doctrine precludes a court from rendering an advisory opinion in a case where there
is no live controversy.”); Thompson v. Ricardo, 269 S.W.3d 100, 103 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (“[I]f a judgment cannot have a practical effect
on an existing controversy, the case is moot and any opinion issued on the merits in
the appeal would constitute an impermissible advisory opinion.”). A case becomes
moot when the issues presented are no longer “live”—that is, a justiciable
controversy no longer exists between the parties or the parties no longer have a
legally cognizable interest in the case’s outcome. Glassdoor, Inc. v. Andra Grp., LP,
575 S.W.3d 523, 527 (Tex. 2019); see In re Guardianship of Fairley, 650 S.W.3d
372, 379 (Tex. 2022). But a case is not made moot merely because some issues
became moot during the appeal; that is, if only some claims or issues become moot,
the case remains live for the claims or issues that are not moot. State ex rel. Best v.
Harper, 562 S.W.3d 1, 6 (Tex. 2018).

Here, the subject property has been sold,1 and thus the Eric and Dena have no
justiciable interest in the outcome of these two issues. We therefore conclude that

1
While there is no evidence in the record of a sale taking place, Dena contends in her brief
that the home was sold, and this is undisputed by Eric. The Harris County Appraisal District’s
records confirm that Eric and Dena are no longer the owners of the subject property, and we take
judicial notice of this fact. See, e.g., Alsobrook v. MTGLQ Inv’rs, LP, 657 S.W.3d 327, 329–30
(Tex. App.—Dallas 2021), aff’d as modified, 656 S.W.3d 394 (Tex. 2022) (taking judicial notice
of appraisal district’s online records because they “are publicly available and are not subject to
reasonable dispute because the information can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned”); see also, e.g., Kew v. Bank of Am., N.A., No.
A. H-11-2824, 2012 WL 1414978, at *3 (S.D. Tex. Apr. 23, 2012) (mem. op & order) (taking
judicial notice of the appraised fair-market value of certain real property published on the Harris
County Appraisal District’s website).

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these two issues are moot. See, e.g., Estate Land Co. v. Wiese, 546 S.W.3d 322, 326–
27 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (“Because appellants did
not seek an emergency stay, supersedeas bond, or otherwise suspend the
enforcement of the trial court’s post-judgment orders, the sale of the property at issue
was completed and, as such, the issues in this case must be dismissed as moot.”);
Aaron v. Aaron, No. 14-10-00765-CV, 2012 WL 273766, at *5 (Tex. App.—
Houston [14th Dist.] Jan. 31, 2012, no pet.) (mem. op.) (“Because the parties sold
the property during the pendency of this appeal, this issue is moot because there are
no further issues regarding the potential sale or partition of the property or any issue
regarding payment of the mortgage and maintenance expenses associated with the
ownership of the property.”).

We overrule Eric’s fifth and sixth issues.

V. DIVISION OF MARITAL PROPERTY

In his seventh issue, Eric argues the trial court erred by failing to make
findings about the total value of the community estate, the percentage of the
community estate awarded to each party, and the value of “the assets, debts[,] and
offsets which compromise the community estate.”

The division of a community estate in divorce must be “just and right, having
due regard for the rights of each party and any children of the marriage.” Bradshaw
v. Bradshaw, 555 S.W.3d 539, 543 (Tex. 2018).

In a suit for dissolution of a marriage in which the court has rendered a
judgment dividing the estate of the parties, on request by a party, the
court shall state in writing its findings of fact and conclusions of law,
including the characterization and value of all assets, liabilities, claims,
and offsets on which disputed evidence has been presented.
Tex. Fam. Code Ann. § 6.711 (emphasis added); see also Reisler v. Reisler, 439
S.W.3d 615, 620 (Tex. App.—Dallas 2014, no pet.) (“The obligation of the trial

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court is to make findings of fact and conclusions of law on the ultimate or controlling
issues, but not on evidentiary issues. The trial court is not obligated to detail the facts
that establish . . . one party’s separate estate that forms the basis for the
disproportionate division of property.”); Panchal v. Panchal, 132 S.W.3d 465, 466–
67 (Tex. App.—Eastland 2007, no pet.) (“The failure of the trial court to file
sufficient findings of fact and conclusions of law when properly requested is
presumed to be harmful unless the contrary appears on the face of the record.”).

Here, Eric does not identify assets, debts, or offsets of which disputed
evidence was presented and for which the trial court failed to make findings. See
Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record.”).
Additionally, our review of the record does not reveal any property on which
disputed evidence was presented apart from the marital home, which has been sold.

We overrule Eric’s seventh issue.

VI. SUFFICIENCY OF THE EVIDENCE

In his eighth issue, Eric argues the evidence is legally and factually
insufficient to support the trial court’s findings that: he “shaved his legs and the hair
on his head”; a “sufficient hair sample was taken and yielded positive results for
amphetamine/methamphetamine, benzoylecgonine, cocaine, [and] norcocaine”; and
“credible testimony elicited established that [he] consumes methamphetamine and
cocaine.”

A. STANDARD OF REVIEW

Evidence is legally sufficient if, viewing all the evidence in the light most
favorable to the fact-finding and considering undisputed contrary evidence, a
reasonable factfinder could form a firm belief or conviction that the finding was true.

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In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In conducting a legal-sufficiency
review, the reviewing court cannot ignore undisputed evidence contrary to the
finding, but it must otherwise assume the factfinder resolved disputed facts in favor
of the finding. Id. at 630–31.

In a factual sufficiency review, we examine the entire record and consider and
weigh all the evidence, both in support of, and contrary to, the challenged finding.
See id. Having considered and weighed all the evidence, we should set aside the
judgment only if the evidence is so weak, or the finding so against the great weight
and preponderance of the evidence, that it is clearly wrong and unjust. Boyd v.
Palmore, 425 S.W.3d 425, 429 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)); see In re A.C., 560 S.W.3d
at 631.

B. ANALYSIS

Eric argues that “[t]he only evidence to support these [findings] is derived
purely from the testimony of Bruce Jefferies.” As previously noted, Eric waived any
complaint as to the admission of Jefferies’s testimony or the results of the drug test
from May 13, 2022, which show that Eric’s hair sample was positive for
amphetamine, methamphetamine, benzoylecgonine, cocaine, and norcocaine.
Jefferies testified that the quantities for which Eric tested positive indicated a regular
and daily user of those drugs. Jefferies further testified:

I haven’t seen these -- this combination of meth and cocaine positives
in a very long time. The combination and with the quantitative results,
it would probably be in the top two of my professional career of reading
quantitative results. These are extremely high numbers.
Finally, Jefferies testified that Eric’s leg hair was shaved for testing because Eric’s
hair on his head was too short.

Viewing this evidence in the light most favorable to the trial court’s ruling,
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we conclude that the evidence is legally sufficient to support the three challenged
findings. See In re A.C., 560 S.W.3d at 631. Likewise, balancing all of the disputed
evidence in the record, we conclude that the evidence is factually sufficient to
support these three challenged findings. See id.

We overrule Eric’s eighth issue.

VII. CONCLUSION

Having overruled all of Eric’s issues on appeal, we affirm the trial court’s
order.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.

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