Copenhaver, Hilda Y. v. Medina, Jose--Appeal from County Court at Law No 7 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

HILDA Y. COPENHAVER, )

) No. 08-02-00136-CV

Appellant, )

) Appeal from the

v. )

) County Court at Law #7

JOSE MEDINA, )

) of El Paso County, Texas

Appellee. )

) (TC# 2001-J00009-7)

)

MEMORANDUM OPINION

This is a pro se appeal from a judgment rendered in the county court from an appeal of a justice of the peace judgment. Mr. Medina filed a small claims action against Ms. Copenhaver in the justice of the peace court and was awarded a judgment of $2,300 plus costs and

post-judgment interest in January 2001. Ms. Copenhaver filed an appeal to the county court and a non-jury trial was held in March 2002 which resulted in a judgment of $6,795 plus costs and post-judgment interest against Ms. Copenhaver. In this appeal, Ms. Copenhaver raises three issues which we understand to be: (1) that the trial court erred by failing to compel production of discovery requested by Ms. Copenhaver and admitting untimely filed discovery documentation; (2) that the trial court erred by admitting false and contradictory documentation; and (3) that the amount of the judgment was unreasonable. We affirm.

In January 2000, Ms. Copenhaver ran a red light on Hawkins Street in East El Paso. Mr. Medina was driving out of Cielo Vista Mall onto Hawkins and collided with Ms. Copenhaver=s car. In May 2000, Mr. Medina filed suit in Justice of the Peace Court, and on January 23, 2001, a hearing was held and a judgment of $2,300 plus costs and post-judgment interest was rendered against Ms. Copenhaver. She perfected an appeal to the county court. On August 8, 2001, Ms. Copenhaver filed a Motion to Request Discovery Records, Presented by Plaintiff, But Never Seen by Defendant. In January 2002, Ms. Copenhaver retained counsel and a non-jury trial was held on March 6, 2002. It appears from the record that Ms. Copenhaver terminated her retained attorney immediately following the trial, where a judgment of $6,795 plus costs and post-judgment interest was rendered against her. She appears before us pro se and has filed a brief in support of her appeal. The record before the Court consists only of the clerk=s record; no reporter=s record was requested by Ms. Copenhaver, the Appellant.

In her first issue, Ms. Copenhaver complains that the trial court erred by admitting into evidence documentation, which she had sought through a discovery motion filed in August 2001 but was not produced until seven days before trial. She cites Tex.R.Civ.P. 190.2(c)(1) which provides:

All discovery must be conducted during the discovery period, which begins when the suit is filed and continues until 30 days before the date set for trial.

Ms. Copenhaver=s contention is really three-fold: first, it was error for the trial judge not to compel the production of the discovery she had requested; second, that it was error for the trial judge to consider the discovery documentation that was filed because it was produced only seven days before trial; and finally, that the documentation was false or contradictory.

In the limited record before us, it does not appear that Ms. Copenhaver obtained a ruling on her motion to compel, nor does it appear that she ever objected to the introduction of the documents. Consequently, she has waived her right to the requested discovery and the untimely production of the discovery. See Tex.R.App.P. 33.1(a)(2); Pace v. Jordan, 999 S.W.2d 615, 622 (Tex.App.--Houston [1st Dist.] 1999, pet. denied).

The admission or exclusion of evidence is left to the sound discretion of the trial court.

Lohmann v. Lohmann, 62 S.W.3d 875, 881 (Tex.App.--El Paso 2001, no pet.). Ms. Copenhaver has failed to bring a record showing that the trial court abused its discretion. A judge is presumed to have acted within his discretion unless the record discloses to the contrary. Navistar Int=l Corp. v. Valles, 740 S.W.2d 4, 6 (Tex.App.--El Paso 1987, no writ). She has therefore failed to show any abuse of discretion by the trial court. We overrule Issue One.

In Issue Two, Ms. Copenhaver complains that the same documents are false or contradictory. As before, because there is no reporter=s record, we must presume that the trial judge did not abuse his discretion. Id. With respect to her analysis and criticism of the veracity of the documents, as a general rule an appellate court may not consider matters outside the appellate record. Siefkas v. Siefkas, 902 S.W.2d 72, 74 (Tex.App.--El Paso 1995, no writ). Issue Two is overruled.

In Issue Three, Ms. Copenhaver contends that the trial court Aerred in not accepting the Defendants plea of Guilty with request to lower the amount of Judgment from the Justice Court to a more responsible and reasonable amount . . . .@ In the interest of justice, we will consider this issue to be a challenge of the legal and factual sufficiency of the evidence to support the amount of damages awarded by the trial court.

In considering a Ano evidence@ legal insufficiency point, we consider only the evidence that tends to support the jury=s finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). If there is more than a scintilla of evidence to support the questioned finding, the Ano evidence@ point fails. Z.A.O., Inc. v. Yarbrough Drive Center Joint Venture, 50 S.W.3d 531, 538 (Tex.App.--El Paso 2001, no pet.).

A factual insufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Z.A.O., Inc., 50 S.W.3d at 538.

However, with the absence of a reporter=s record, we cannot review the merits of her contentions. As the complaining party, she has the burden to bring forth a record to support her contention. American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 240 (Tex.App.--El Paso 1999, pet. denied); see also Tex.R.App.P. 34.6(b)(1) and 35.3(b). Issue Three is overruled.

Having overruled all three issues raised on appeal, we affirm the judgment of the trial court.

September 25, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.