NO. 12-02-00380-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RAMON LOPEZ,§ APPEAL FROM THE 321ST
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Appellant Ramon Lopez ("Lopez") appeals the granting of a protective order against him. In his sole issue on appeal, Lopez contends that the trial court erred when it refused to appoint counsel for him, when it limited his cross-examination of the alleged victim, and when it denied him the opportunity to present additional evidence. We affirm.
Background
On November 6, 2002, Isabel Santiago ("Santiago") filed an application for a protective order alleging that Lopez engaged in conduct constituting family violence. The application further alleged that, due to a history of family violence by Lopez, family violence was likely to occur in the future, and that a clear and present danger existed that Lopez would commit further acts of family violence if he was not immediately restrained. An affidavit by Santiago was attached to the application. On November 7, 2002, the trial court issued a temporary ex parte protective order against Lopez. Further, the trial court ordered Lopez to appear on November 20, 2002 for a hearing to determine if the protective order should be issued. On November 20, 2002, the trial court heard Santiago's application for protective order. Lopez appeared pro se. Although Lopez initially agreed to the protective order, he retracted his agreement in court, and the trial court determined that a hearing on the application was required.
Before testimony began, the trial court stated that it was unable to appoint an attorney for Lopez because the hearing involved a civil matter and the application did not request incarceration. After agreeing to provide an interpreter, the trial court recessed until the following day. The next day, before testimony continued, Lopez requested appointment of counsel because he did not know the legal procedures or have any money or access to an attorney. The trial court refused, stating that Lopez was not eligible for court-appointed counsel because this was a civil case. After his request for a continuance was denied, Lopez announced that he needed to subpoena thirty-seven witnesses to testify, but lacked the means, time, or knowledge to do so. The trial court questioned why Lopez had not subpoenaed his witnesses the day before, but further noted that Lopez never informed the trial court on the previous day that he wanted anything besides an interpreter. The trial court resumed the hearing. At some point after the hearing proceeded, the trial judge informed both parties that the hearing would conclude at the end of the day.
On direct examination, Santiago testified to violence Lopez committed against her, including a physical assault and threat of physical violence with a knife in March of 2002. In addition, she testified that Lopez physically assaulted her, threatened her with physical violence with a knife, and kidnaped her against her will in a continuing violent episode in July of 2002. On cross-examination, Lopez asked questions relating to the protective order. However, he also questioned Santiago regarding her knowledge of the Ten Commandments, whether having a child while single honored her parents, claims of adultery in another marriage, and her intentions in moving to Texas. In response, the trial court reminded Lopez a number of times that his questions must be relevant, concern the recent past or present, and pertain to the incident in question. Lopez replied that his questions would reveal Santiago's character, person, intentions, and familial understandings. During the cross-examination, the trial court frequently prompted Lopez to "move along" or "move on" with his questioning. Later, Lopez again asked for a continuance, but the trial court overruled his motion. Finally, the trial court informed Lopez that he needed to "move on" with his cross-examination of Santiago because it would be ruling on the protective order shortly. Soon thereafter, Lopez stated that he had approximately thirty to forty additional questions for Santiago. However, the trial court stated that the hearing was concluded. For the record, Lopez advised the trial court that he wished to present thirty-seven witnesses, but had failed to do so because he lacked the requisite knowledge. At that point, the trial court granted Santiago's application for protective order.
The trial court found that family violence had occurred and was likely to occur in the future. Further, among other proscriptions, the order prohibited Lopez from communicating in any manner with Santiago, going within 500 yards of the residence, employment, or business of Santiago, or going within 500 yards of the childcare facility and/or school attended by Santiago's son. Any violation of the order subjected Lopez to contempt of court, resulting in a fine or confinement in jail or both. After entry of the protective order, Lopez filed a motion requesting appointment of counsel for his appeal, claiming that he was indigent. After Lopez timely filed a motion to proceed in forma pauperis, together with an accompanying affidavit of inability, the trial court, according to the court's civil docket sheet, found the affidavit defective and dismissed the motion. Nevertheless, the docket sheet included a notation that Lopez would be allowed to file a new affidavit. After filing a new motion and affidavit of inability to pay costs, Lopez was found indigent on January 13, 2003. However, counsel was not appointed. This appeal followed.
Appointment of Counsel
Lopez contends that the trial court erred when it refused to appoint counsel for him at trial or on appeal. He argues that such failure does not comport with due process or the Fourteenth Amendment to the United States Constitution. Further, because he faced the possibility of incarceration pending a criminal trial based on the same allegations, Lopez contends that the trial court erred in not giving additional consideration to appointing counsel for him. The State argues that the trial court acted within its discretion in not appointing counsel for Lopez.
Applicable Law
The Supreme Court of the United States presumes that an "indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty." Lassiter v. Dep't of Social Servs., 452 U.S. 18, 26-27, 101 S. Ct. 2153, 2159, 68 L. Ed. 2d 640 (1981). The Court considers a mere threat of imprisonment a different kind of penalty from actual imprisonment. Lassiter, 452 U.S. at 26, 101 S. Ct. at 2159. Moreover, the Texas Supreme Court has never held that a civil litigant must be represented by counsel in order for a court to conduct its fundamental, constitutional function. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). The Texas Legislature has determined that "[a] district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause." Tex. Gov't Code Ann. § 24.016 (Vernon 1988). Further, the Texas Supreme Court recognized that, in "some exceptional cases," the interests at stake, both public and private, warrant appointment of counsel in order to best serve the administration of justice. Mayfield, 923 S.W.2d at 594. However, the court did not explain what circumstances are so exceptional that appointment of counsel would be warranted because "exceptional" is, by definition, rare, unusual, and not easily identified by a broad rule. Gibson v. Tolbert, 102 S.W.3d 710, 713 (Tex. 2003).
Analysis
During the hearing, Lopez requested appointment of trial counsel, but failed to make an affidavit claiming that he was indigent as required by the Texas Government Code. Because he failed to comply with the provisions of the statute, Lopez has waived his complaint on appeal relating to the appointment of trial counsel. See Tex. Gov't Code Ann. § 24.016. Even if Lopez had not waived his complaint, the application for protective order asked that Lopez be restrained, not imprisoned. Lopez contends that his physical liberty was at stake because his criminal court case was based on the same allegations. However, in this case, Lopez could suffer possible confinement in jail only if he violated the protective order and was found in contempt of court. Because a threat of imprisonment is not the same penalty as actual imprisonment, Lopez is not entitled to appointed counsel. See Lassiter, 452 U.S. at 26-27, 101 S. Ct. at 2159. Further, Lopez claims that his circumstances demanded appointed counsel because his upcoming criminal trial was based on the same allegations, his testimony could be used against him, and he was unable to defend himself effectively. However, Lopez has failed to show these circumstances are exceptional and therefore require appointment of trial counsel. See Mayfield, 923 S.W.2d at 954; Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.-Beaumont 2001, no pet.); Knie v. Piskun, 23 S.W.3d 455, 461 (Tex. App.-Amarillo 2000, pet. denied).
Although Lopez contends that the trial court's failure to appoint counsel on appeal was error, he cites no authority supporting this contention, and we are not aware of any. However, Lopez's argument focuses exclusively on the denial of appointed counsel at trial. Lopez fails to describe any justification or reason for a determination that the trial court should have appointed counsel for his civil appeal. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on Appellant's behalf that the trial court erred by failing to appoint counsel on appeal. Therefore, the trial court did not err when it denied his request for appointment of counsel at trial or on appeal.
Limitation of Cross-Examination and Evidence
Lopez argues that the trial court erred when it limited his cross-examination of Santiago and denied him the opportunity to present additional evidence. The State contends that the trial court acted within its discretion in limiting the examination of Santiago to relevant issues.
Applicable Law
A trial judge's responsibilities include the general conduct of a trial or hearing, and the court may intervene to promote expediency and prevent waste of time. Great Global Assurance Co. v. Keltex Props., Inc., 904 S.W.2d 771, 777 (Tex. App.-Corpus Christi 1995, no writ). Further, in order to generate effective interrogation of witnesses and presentation of evidence, avoid unnecessary use of time, and protect witnesses from harassment, the trial court should exercise reasonable control over the mode and order of the witnesses and evidence. Tex. R. Evid. 611 (a). According to the Texas Supreme Court, "[c]ross-examination is a safeguard essential to a fair trial and a cornerstone in the quest for truth." Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312, 314 (Tex. 1987). Our jurisprudence acknowledges the right and necessity of full and complete cross-examination. Id. Moreover, due process demands the opportunity to confront and cross-examine adverse witnesses. Id. However, a trial judge has wide discretion to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness's safety, or repetitive or marginally relevant interrogation. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986); see Texas Employers' Ins. Ass'n v. Garza, 557 S.W.2d 843, 845 (Tex. Civ. App.-Corpus Christi 1977, writ ref'd n.r.e.). The trial court abuses its discretion when it acts without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
The admission and exclusion of evidence is also within the trial court's sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). If a complaining party seeks to reverse a judgment based on an evidentiary error, he must prove that the error probably resulted in an improper judgment. Id. Further, the complaining party usually must show that the judgment turns on the particular evidence admitted or excluded. Id. at 753-54.
Analysis
In this case, the trial court attempted to control Lopez's questions involving marginally relevant issues such as Santiago's knowledge of the Ten Commandments, her pregnancy while single, adultery within another marriage, and her reasons for moving to Texas. After over one and one-half hours of cross-examination, the trial court halted the interrogation, refused to allow further questioning or additional witnesses, and ruled on the protective order. Based upon our review of the record, we conclude that appropriate cross-examination was not prohibited and the trial court's limitation of Lopez's cross-examination was not an abuse of discretion. See Delaware, 475 U.S. at 679, 106 S. Ct. at 1435; Garza, 557 S.W.2d at 845; City of Houston v. Houston Lighting & Power Co., 530 S.W.2d 866, 869 (Tex. Civ. App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.).
Additionally, Lopez contends that the trial court prevented him from introducing evidence, including further cross-examination and additional witnesses. However, none of the other thirty-seven witnesses had been subpoenaed. Lopez must prove that the exclusion of this evidence resulted in the issuance of an improper protective order, and that the issuance of the protective order turned on the exclusion of this evidence. See Alvarado, 897 S.W.2d at 753-54. Lopez fails to state any reason why the trial court's error in excluding the thirty-seven witnesses led to the issuance of an improper protective order. Lopez's only contention is that the excluded evidence would have shown that Santiago reunited with Lopez after obtaining a protective order against him shortly before the episode in July of 2002. However, he fails to prove that issuance of the protective order hinged on the exclusion of the evidence. Consequently, we conclude that the trial court did not abuse its discretion in excluding additional evidence. Therefore, Lopez's sole issue on appeal is overruled.
Conclusion
Because we have overruled Lopez's sole issue, the judgment of the trial court is affirmed.
DIANE DEVASTO
Justice
Opinion delivered December 23, 2003.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(PUBLISH)