Caroline Powell v. Jamie Lee Gould and Holly Lynn Eads

IN THE
TENTH COURT OF APPEALS

No. 10-24-00011-CV

CAROLINE POWELL,
Appellant
v.

JAMIE LEE GOULD AND HOLLY LYNN EADS,
Appellees

From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. C20160225

MEMORANDUM OPINION

Caroline Powell, acting pro se, appeals from a take nothing judgment rendered in

favor of Jamie Lee Gould and Holly Lynn Eads in her civil assault lawsuit. Powell raises

numerous issues regarding discovery, the denial of a jury trial, denial of due process,

sufficiency of the evidence to support the judgment, damages, and the earlier dismissal

of a defendant. We affirm.
Background

In 2013, Powell left some items at a consignment store owned by Niki Kline. The

store went out of business without paying Powell or returning her property. In January

2014, Powell went to Kline’s new business, Zen Foot Spa, to speak to Kline about

retrieving her property. Kline was not there. Instead, Powell encountered Kline’s sister,

Jamie Gould, and an employee, Holly Eads. The three women engaged in a physical

altercation. The police were called, and Powell was arrested and charged with criminal

trespass.

The criminal case against Powell was later dismissed. In November 2015, Powell

filed a civil suit in the justice court for assault causing bodily injury naming Kline, Guild,

and Eads as defendants. She sought damages in the amount of $7,000 and $3,000 in

attorney’s fees. Powell nonsuited Kline on May 25, 2016. On June 8, 2016, the justice

court rendered judgment that Powell take nothing against the remaining defendants.

Although she appealed that judgment to the County Court at Law, Powell never

amended her pleadings to ask for additional damages. The case languished for seven

years with no activity until late 2023. After a trial before the court, on December 13, 2023,

that court rendered a take nothing judgment in favor of Gould and Eads. This appeal

ensued.

Powell v. Gould Page 2
Appellant’s Arguments

In a rambling, unorganized brief that is mostly her version of facts, accompanied

by commentary, Powell includes a variety of complaints. It is difficult to determine what

her legal arguments are. A pro se litigant is held to the same standards as licensed

attorneys and must comply with applicable laws and rules of procedure. Mansfield State

Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Otherwise, pro se litigants would benefit

from an unfair advantage over parties represented by counsel. Id. at 185.

Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief

“contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). The appellate court has

no duty to brief issues for an appellant. See Huey v. Huey, 200 S.W.3d 851, 854 (Tex.

App.—Dallas 2006, no pet.). The failure to provide appropriate record citations or a

substantive analysis waives an appellate issue. WorldPeace v. Comm’n for Lawyer

Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Even

though we must construe briefing requirements reasonably and liberally, a party

asserting error on appeal still must put forth some specific argument and analysis

showing that the record and the law support its contentions. San Saba Energy, L.P. v.

Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

An appellate court has no duty to perform an independent review of the record

and applicable law to determine whether there was error. Canton-Carter v. Baylor Coll. of

Powell v. Gould Page 3
Med., 271 S.W.3d 928, 931-32 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Were we to

do so, we would be abandoning our role as neutral adjudicators and become an advocate

for that party. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).

With those standards in mind, we turn to Powell’s arguments. In what appears to

be her first argument, Powell begins by asserting that she was “disallowed” discovery.

She then references “photo and video evidence” that would have shown her appearance

after the incident. Then over the course of two pages, single spaced, she provided her

explanation of events, not necessarily supported by the record, including what she

suspects, felt, and assumed. At the end of this section of her brief, she requested that

charges be brought against Gould and Eads for criminal assault and battery.

Powell did not comply with Rule 38.1(i) and we are uncertain how to decipher this

complaint. See TEX. R. APP. P. 38.1(i). Powell has not provided specific argument and

analysis showing that the record and the law support her contentions. See Crawford, 171

S.W.3d at 338. Further, Powell has not directed us to a place in the record showing she

sought discovery or that the trial court rebuffed her efforts in any way.

As a prerequisite to presenting a complaint for appellate review, the record must

show, among other things, the complaint was made to the trial court by a timely request,

objection, or motion that stated the grounds for the ruling sought from the trial court with

sufficient specificity to make the trial court aware of the complaint, unless the specific

Powell v. Gould Page 4
grounds were apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A). Because the

complaint regarding discovery was not made to the trial court, it has been waived. Id.

In a section of her brief entitled “Additional Arguments,” Powell lists complaints

“A” through “G.”1 In “A” and “G”, she complains that her request for a jury trial was

denied. To invoke and perfect the right to a jury trial in a civil case, a party must comply

with the applicable rules of civil procedure. Texas Rule of Civil Procedure 216 requires a

party to make a jury request and pay the jury fee “a reasonable time before the date set

for trial of the cause on the non-jury docket, but not less than thirty days in advance.”

TEX. R. CIV. P. 216.

In her “Motion for Appeal,” filed in the Johnson County Clerk’s office on July 12,

2016, Powell stated she wants to appeal the justice court’s decision to “County Civil

Court.” She stated she did not have money to pay an appeal bond and she asked for a

jury trial at her “next trial.” An indigent is not required to pay a jury fee. Id. R. 217.

Instead, the indigent must file an affidavit of inability to pay before the deadline for

paying the fee, that is, at least thirty days before the date set for the trial of the cause on

the non-jury docket. Id. R. 216, 217. While the record does not include an affidavit of

indigency filed in justice court, the justice court docket sheet contains an entry stating

that, on July 5, 2016, Powell was declared to be a pauper. For purposes of this appeal, we

assume Powell perfected her right to a jury trial.

1 Powell did not include an argument “D.”
Powell v. Gould Page 5
Nothing happened in the case until August 30, 2023 when the civil coordinator of

the County Court at Law Number One sent a notice that the case was set for dismissal.

The dismissal hearing was on October 11, 2023. Powell told the court that she wanted to

retain the case on the docket. The court immediately, in open court, set it for trial on

December 13, 2023. At the dismissal hearing, Powell did not mention wanting a jury trial.

On December 13, the judge called the case and asked Powell “are you ready to

proceed this afternoon?” Powell answered affirmatively. After Gould and Eads also

stated they were ready the trial court explained that “[t]his is what is called a trial de

novo.” The court further explained it is a new trial, they are starting from ground zero,

and they must admit all of the evidence they want considered. When asked if they

understood, all three answered affirmatively. Powell did not request a jury trial or move

to strike the nonjury setting.

Even after invoking the right to a jury trial in accordance with Rule 216, a party

may waive the right either expressly or by her failure to act. See Sunwest Reliance

Acquisitions Group v. Provident Nat’l Assurance Co., 875 S.W.2d 385, 387-88 (Tex. App.—

Dallas 1993, no writ). A party waives her request for a jury trial if she does not object

when the trial court begins a nonjury trial. In re D.R., 177 S.W.3d 574, 580 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied) (op. on reh’g). Because Powell failed to object to

the nonjury trial, she waived her right to a jury trial. Id.

Powell v. Gould Page 6
In argument “G,” Powell also complains that the trial court limited her to one hour

to present testimony. She is apparently referencing the court’s statement at the dismissal

hearing that he was “going to set it for trial for one hour.”

At the December 13 de novo trial, Powell testified, reciting her version of events.

After Gould and Eads cross-examined Powell, the court asked Powell if she had anything

else she wanted to tell him. She said she did not have anything else to tell him. The court

then asked Powell many clarifying questions. He ended his questioning of her by asking

again if there is anything else she would like to tell him. She responded with “[t]hat will

be all.” When asked if there were any other witnesses Powell would like to call, she

replied that she did not have any other witnesses. Gould and Eads both testified, and

Powell cross-examined each of them. Powell then presented her rebuttal testimony. The

court again asked if she had anything else to say. Powell replied, “[t]hat will be all.” She

answered affirmatively when the court asked if she rests and closes the evidence.

No doubt the trial court, at the dismissal hearing, estimated how long it would

take to try the case. A trial court has broad discretion to manage and control its docket,

and the complainant must show that the court clearly abused its discretion. See Clanton

v. Clark, 639 S.W.2d 929, 931 (Tex. 1982). The record shows that all parties were given as

much time as they needed to present their evidence. The court repeatedly asked Powell

if she had more to offer, and she repeatedly stated that she did not. She never objected

Powell v. Gould Page 7
and never stated that she needed additional time to retrieve additional witnesses or

evidence. Powell has not shown that the trial court abused its discretion. Id.

In argument “C,” Powell states the Burleson Police Department erred in

disallowing discovery that could have helped her prove her case. In argument “B,”

Powell asserts her right to a fair trial was violated. She complains that she was accused

of something she did not do, treated as the guilty party, never given proper due process,

and denied the right to bring charges against Gould and Eads.

An issue presented for appellate review is sufficient if it directs the reviewing

court’s attention to the error about which the complaint is made. Canton-Carter, 271

S.W.3d at 931. The Burleson Police Department was not a party to this civil case, and the

trial judge did not rule on the department’s actions. Powell’s arguments do not address

trial court error and are not supported by authority. In the absence of legal analysis,

citations to the record, and citation to appropriate authorities, Powell presents nothing

for review. See Blankinship v. Brown, 399 S.W.3d 303, 307 (Tex. App.—Dallas 2013, pet.

denied); WorldPeace, 183 S.W.3d at 460.

In her argument “E,” Powell contends the justice court erred when it dismissed

her suit against Niki Kline. The record shows that Powell made an oral motion to nonsuit

Kline in the justice court. The justice court dismissed the case against Kline, with

prejudice, on May 25, 2016. A nonsuit extinguishes a case or controversy from the

moment the motion is filed or an oral motion is made in open court. Univ. of Tex. Med.

Powell v. Gould Page 8
Branch at Galveston v. Est. of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam). The

dismissal order, a ministerial act based on Powell’s nonsuit, was not before the county

court at law for review. This complaint presents nothing for our review.

Sufficiency of the Evidence

In her argument “F,” Powell asserts the trial court erred when it granted judgment

for Gould and Eads because that judgment was against the great weight of the credible

evidence. Further, in a section of her brief entitled “County Court at Law #1 Trial

Transcript with Arguments” Powell makes a variety of arguments apparently attacking

the sufficiency of the evidence to support the trial court’s determination that she did not

prove her case. Additionally, she asks this Court to grant her the maximum amount

allowed as damages.

Standard of Review

When considering a factual sufficiency challenge, we consider and weigh all of the

evidence. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). An appellant attacking

factual sufficiency with respect to an adverse finding on which she had the burden of

proof must demonstrate that the finding is against the great weight and preponderance

of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).

We may set aside the finding only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. Pool, 715 S.W.2d at 635. We may not

substitute our judgment for that of the trier of fact or pass on the credibility of the

Powell v. Gould Page 9
witnesses. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). In a bench

trial, the trial court may resolve any inconsistencies in the testimony as well as determine

the weight of the evidence. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

Applicable Law

Powell brought suit for assault causing bodily injury. The definition of assault is

the same whether in a civil or criminal trial. Gibbins v. Berlin, 162 S.W.3d 335, 340 (Tex.

App.—Fort Worth 2005, no pet.). A person commits assault if she intentionally,

knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE ANN.

§ 22.01(a). “Bodily injury” means physical pain, illness, or any impairment of physical

condition. Id. § 1.07(a)(8).

Discussion

The record shows that Powell visited Zen Foot Spa looking for Kline to retrieve

items she had left at Kline’s consignment store. Kline was not there at the time. Gould

and Eads were present at the spa. Gould asked Powell to leave, and the two got into a

physical altercation. Powell was subdued by Eads’s use of pepper spray and the police

were called.

Powell was transported to the hospital where CT scans were done of her head and

spine. The medical report in our record includes the following findings:

No acute intracranial findings.
Mild straightening of the usual cervical lordosis.
Vertebral body heights and alignment are normally maintained
without evidence of fracture or listhesis.
Powell v. Gould Page 10
Intervertebral disc space heights are preserved.
Bilateral facets and occipital condyles are well aligned.

No expert testimony was presented to explain the medical findings.

The record includes the Burleson Police Department arrest warrant affidavit

describing the events at the spa as related by the parties. The affiant determined that

Powell committed criminal trespass at the spa. Powell was arrested and charged with

criminal trespass.

Powell filed a complaint alleging she was assaulted at the spa. Powell was

administered a polygraph examination regarding the events. The examiner stated that

in his opinion Powell was being truthful when answering the relevant questions.

Thereafter, the criminal trespass charge against Powell was dropped. At some point, the

Texas Attorney General’s office became involved and determined that Powell was

eligible for compensation as a victim. The Attorney General’s crime victim assistance

program paid $10,213.64 toward Powell’s medical bills. Aetna Insurance paid $6,669.32

toward her bills. Powell testified that she has a herniated disk, pain and suffering, and

ongoing expenses. There are no medical records supporting her assertion of having a

herniated disk.

The record shows that Powell was in a physical altercation with Gould and Eads.

Additionally, the record shows that Powell had medical bills resulting from treatment

she received from medical personnel. However, there is no evidence that the bills she

received were for treatment of injuries she sustained at the hands of Gould or Eads.
Powell v. Gould Page 11
Accordingly, Powell did not prove the element of causation. See TEX. PENAL CODE ANN.

§ 22.01(a). It follows that Powell did not demonstrate that the trial court’s determination

that she did not prove her case against Gould and Eads is against the great weight and

preponderance of the evidence. See Francis, 46 S.W.3d at 242.

Conclusion

We find no merit in any of Powell’s arguments, and we overrule all of her issues.

Accordingly, we affirm the trial court’s judgment.2

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed August 29, 2024
[CV06]

2 All pending motions are dismissed as moot.
Powell v. Gould Page 12