in the Guardianship and Estate of Darlene Ann Lafleur Hoffpauir

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________

NO. 09-16-00152-CV
____________________

IN THE GUARDIANSHIP AND ESTATE OF
DARLENE ANN LAFLEUR HOFFPAUIR
__________________________________________________________________

On Appeal from the County Court at Law
Orange County, Texas
Trial Cause No. P16978
__________________________________________________________________

MEMORANDUM OPINION

Appellant Darlene Ann LaFleur Hoffpauir (“Darlene”) asserts that the

evidence is factually insufficient to support the jury’s findings that Darlene is an

incapacitated person; Darlene lacks the capacity to handle business, managerial, and

financial affairs; it is in Darlene’s best interest for the court to appoint a guardian;

and Darlene’s property would be protected by such an appointment. Darlene also

complains that the trial court abused its discretion by excluding evidence. We affirm

the trial court’s judgment.

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 Due to the circumstances surrounding this case, we allowed Darlene to file a

pro se brief, because Darlene alleged that the trial judge exhibited “extreme bias”

against her and colluded with another judge, the head of her trust, her attorneys, and

her family to declare her incompetent and deprive her of her money and property.

Based on our review of the appellate record, the record does not support Darlene’s

allegations that the trial court exhibited bias or colluded with the applicants,

attorneys, or witnesses. We further note that the record does not support Darlene’s

allegation that her appellate counsel would not fight for her on appeal, as the record

shows her appellate counsel filed a merits brief challenging the factual sufficiency

of the evidence and the trial court’s exclusion of evidence. The record also shows

that Darlene’s trial counsel was partially successful in the trial court, because the

jury did not find that Darlene needed a guardian of the person. Because the evidence

in the record is factually sufficient to support the jury’s findings, we conclude that

Darlene’s pro se issues are without merit and do not warrant a new trial.

BACKGROUND

In September 2014, Michael LaFleur and his sisters, Buffy LaFleur Burliegh

and Paula LaFleur (“the LaFleurs”), filed an application for temporary and

permanent guardianship of the person and the estate of their mother, Darlene,

alleging that Darlene was incapacitated and infirm in such a manner that materially

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hindered her ability to care for herself and to manage her financial affairs. The

LaFleurs alleged that Darlene was vulnerable and that she was being physically and

mentally abused, and financially exploited by Tillman Hoffpauir (“Tillman”).

According to the LaFleurs, the trial court needed to appoint a guardian to protect

Darlene from Tillman, who had isolated Darlene from her family, taken Darlene’s

money, and recently married Darlene in secret. The LaFleurs alleged that Tillman

had refused to let them see or talk to Darlene since the marriage occurred, and that

they were concerned for Darlene’s physical health and safety. According to the

LaFleurs, Darlene received a monthly income of approximately $30,000, and they

had reason to believe that Tillman was taking and squandering Darlene’s income

and seriously damaging and dissipating Darlene’s estate.

The LaFleurs filed a motion requesting that the trial court order Darlene to

submit to a mental examination, and the trial court ordered Darlene to be examined

by Dr. Edward Gripon, a psychiatrist. The LaFleurs also filed a motion asking the

trial court to appoint an attorney ad litem to protect Darlene’s interests. The trial

court, finding it was necessary to appoint an attorney ad litem to represent the best

interests of Darlene, appointed Chad Robison as the attorney ad litem.

On September 24, 2014, the trial court conducted a hearing on the LaFleurs’

application for temporary guardianship. The trial court considered a letter from

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Gripon, in which Gripon concluded that Darlene had senile dementia and opined that

Darlene did not possess sufficient ability to manage issues involving her person or

her financial affairs. After hearing the evidence and arguments of counsel, the trial

court found that the LaFleurs had presented substantial evidence showing that

Darlene is an incapacitated person and that there was probable cause to believe that

Darlene’s estate required the immediate appointment of a guardian. The trial

appointed Stephen Howard as the temporary guardian of Darlene’s estate.

The trial court also found it was necessary to appoint a guardian ad litem to

protect Darlene’s interests and a court investigator to investigate the circumstances

alleged in the LaFleurs’ application and to determine whether a less restrictive

alternative to a guardianship is appropriate. The trial court appointed Tommy White

as both the guardian ad litem and the court investigator. The trial court ordered White

to interview Darlene, investigate Darlene’s finances and the value of her estate, file

a written report concerning the findings of the investigation and the best interest of

Darlene, and to facilitate supervised weekly visitations between Darlene and the

LaFleurs in accordance with the trial court’s order. The trial court further ordered

that Darlene undergo a complete neuropsychological assessment conducted by Dr.

Donald Trahan for the purpose of determining Darlene’s mental capacity.

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 In February 2016, the LaFleurs’ application for permanent guardianship of the

person and estate of Darlene was tried before a jury. Robert Cormier, Darlene’s

brother, testified that he, Darlene, and Darlene’s twin sister, Carlene Swenson, are

all beneficiaries of a family trust established by their father, and Robert manages the

trust with the assistance of accountants and lawyers. Robert testified that in 2011, he

bought Darlene’s stock in a well servicing business for $1.5 million plus interest,

and Robert paid Darlene $100,000 per month for fifteen months. At that time,

Robert did not question Darlene’s ability to handle her financial affairs. Robert also

testified that in 2014, he wanted to buy Darlene’s interest in a piece of property, but

did not because Darlene’s capacity was in question.

Robert testified that prior to the LaFleurs filing the application for

guardianship, he noticed that Darlene was having problems managing her money,

and Robert suggested that Darlene hire someone to take care of her finances. Robert

explained that Darlene complained that she was tired of her children always wanting

money, and Robert suggested that Darlene have her son help handle her finances,

which Darlene did for a short period. Robert testified that he knew that Darlene liked

to deal in cash and was going through a lot of money, and at one point, Darlene

needed to borrow money from Robert. Robert explained that he had advised Darlene

that she needed to save money.

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 Robert testified that he supports the LaFleurs’ application for guardianship,

and Robert believes that it is in Darlene’s best interest to have a guardianship

established. According to Robert, Tillman has isolated Darlene from her family, and

Darlene needs someone to help her. Robert explained that in March 2013, Darlene

complained that she did not want Tillman’s name on a camp that she had purchased

in Colmesneil. Robert testified that Tillman said that he would have his name

removed from the deed, but Tillman never followed through. According to Robert,

it was acceptable for Darlene to give her money to her family, but not to Tillman.

Robert further testified that in October 2014, Darlene asked him to pick her

up from the hospital and take her back to the family home in Orangefield. According

to Robert, Darlene was frail and sick, and Darlene stated that she wanted to get away

from Tillman and the camp. Robert explained that Darlene stayed in Orangefield for

approximately two weeks, but then went back to Colmesneil with Tillman.

Michael, Darlene’s son and applicant in the guardianship, testified that in

2011, Darlene went from having a normal life to having more money than she was

accustomed to. Michael testified that in October 2011, Darlene attended a funeral

where she met Tillman. Michael explained that he did not believe that Tillman’s

intentions were pure, because Tillman was much younger than Darlene and usually

dated younger women. According to Michael, Tillman lost his job in November

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2011, and has been unemployed since then. Michael explained that in March 2012,

Darlene called and told him that she wanted Tillman out of her house, because

Tillman had gone through her personal paperwork and inquired about her will.

Michael testified that Tillman left, but came back the next month and tried to get

Darlene to buy him a vehicle. Michael further testified that in May 2012, Darlene

asked him to run Tillman off again, because Tillman was still trying to get Darlene

to buy him a vehicle.

Michael explained that in October 2012, Darlene asked him for help in

managing her finances, and at that point, Darlene had $700,000 in a checking

account that could be accessed with a debit card. Michael helped Darlene open a

new account, but by December 2012, Darlene had changed her mind and took back

control of her finances because someone had convinced Darlene that Michael had

stolen her money. According to Michael, by February 2013, Darlene refused to see

any of her family.

Michael testified that he was concerned that if Darlene kept spending money

at her current rate, she would run out. According to Michael, from June 2011 to

March 2013, Darlene bought homes for his sister Paula, Paula’s daughter, Paula’s

son, and a camp in Colmesneil from Tillman’s friend. Michael explained that in

December 2013, Tillman did not allow Darlene to see Paula and Paula’s son for

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Christmas, and they were the family members closest to Darlene. Michael testified

that in May 2014, Darlene told his sister, Buffy, that she was having financial

problems and needed help with her bills, but Darlene refused Buffy’s help after a

few weeks. Michael explained that in July 2014, he found Darlene unconscious in

her home in Orangefield, and Darlene only stayed in the hospital for two days before

she signed herself out against medical advice. According to Michael, it was later in

July when he found out that Darlene had married Tillman without telling the family.

Michael testified that in August 2014, Darlene was admitted to the hospital,

fired her housekeeper of sixteen years, told Michael that she needed help with her

finances, accused Michael of trying to break into her house, and called the police

when Michael went to her house to pick her up for a scheduled family meeting.

Michael further testified that immediately after the marriage, Darlene gave Tillman

power of attorney over her affairs and executed a will leaving her estate to Tillman.

Michael explained that he filed the guardianship application in September 2014,

because he was concerned for Darlene. According to Michael, Darlene was admitted

to the hospital after the guardianship was filed, and Michael and his sister stayed

with Darlene when she came back to Orangefield. Michael testified that Darlene was

scared and confused, and that she had told Michael that she could not believe that

she was so stupid to marry Tillman. Michael further testified that Darlene told him

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that Tillman was a bully and was never going to quit. According to Michael, Darlene

was worried about money she had left in a safe in Colmesneil.

Michael testified that Darlene went to Colmesneil with Tillman in October

2014. Michael explained that despite the trial court ordering Darlene to attend family

visitations, Darlene stopped attending. According to Michael, when Darlene did

attend family visitations, Tillman “wired” her with a tape recorder. Michael testified

that he believed that it was in Darlene’s best interest that a guardianship be

established for her protection.

Joseph Broussard, an attorney who had performed legal work for the Paul

Cormier Trust and for Darlene, testified that in May 2014, he prepared disability

documents and a will for Darlene. According to Broussard, he believed that Darlene

understood the documents that he prepared. Broussard explained that a few weeks

after Darlene executed the documents, Darlene stated that the will did not comport

with her interests and intent. According to Broussard, Darlene expressed an interest

in changing the will, but never followed through. Broussard explained that he had

concerns about Darlene’s sudden turn and did not feel comfortable changing the will,

because Darlene had discussed at length her intentions of providing her property to

her children.

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 Buffy, Darlene’s daughter and applicant in the guardianship, testified that she

used to have a close relationship with Darlene, until Darlene became isolated a year

or two before the guardianship suit was filed. Buffy testified that after the

guardianship was filed, Darlene told Buffy that she was scared of Tillman, because

Tillman was a bully and would not stop until he got what he wanted. According to

Buffy, she is concerned about Darlene’s health and safety, and Buffy testified that it

was in Darlene’s best interest that a guardianship be established.

The LaFleurs presented the deposition testimony of Paula. Paula testified that

Darlene bought her a home in December 2011 and provided a monthly allowance to

care for the home. Paula explained that Darlene stopped supporting her financially

when the guardianship suit was filed, and that Darlene’s sister has been taking care

of Paula’s necessities. Paula explained that in 2012, Darlene became isolated, and

Darlene called Paula several times and asked her to get Tillman out of Darlene’s

house. Paula testified that in 2013, she and her siblings decided to bring the

guardianship application, because they knew something was wrong with Darlene.

Paula explained that she dropped out of the guardianship application because her son

died.

The LaFleurs also presented the deposition testimony of Darlene. During

Darlene’s deposition, Darlene testified that she had not seen her grandchildren in

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approximately two years, and Darlene could not remember the names and ages of

some of her grandchildren. Darlene testified that she did not like her children trying

to rule her life. According to Darlene, she had a close relationship with Buffy, until

Buffy turned against her. Darlene testified that she no longer had a relationship with

Michael, because Michael lied and stole money when Darlene put him on her bank

account. The record shows that Darlene was unable to complete her first deposition,

which was conducted on January 26, 2016, or a second deposition which was

conducted on February 3, 2016, because of complaints of a headache.

Howard, the temporary guardian of Darlene’s estate, testified that his duty

was to find all of Darlene’s assets, account for the assets, pay Darlene’s bills, and

maintain the status quo during the pendency of the application for guardianship.

Howard explained that he created a trust account in which he deposited Darlene’s

trust income and social security benefits, and Howard filed an initial and final

inventory. Howard also explained that he paid all of Darlene’s legitimate bills,

including legal fees. Howard testified that he provided Darlene with an allowance,

and Darlene had filed a pro se pleading requesting that she receive a monthly

allowance of $125,000.Howard testified that in October 2014, he met with Darlene

to discuss her estate. Howard testified that Darlene’s bank records showed a pattern

of behavior that was highly disturbing. According to Howard, Darlene received

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$30,000 per month in trust income, and her bank records showed that on several

occasions, Darlene would deposit a small portion, such as $5,000, and “take the rest

of it as cash out the door.” Howard testified that he was unable to locate the cash

that Darlene took from the bank, which Howard initially estimated to be

approximately $84,000. Howard explained that Darlene’s pattern of withdrawing

cash made the money untraceable. Howard testified that the bank’s employees told

him that Tillman brought Darlene to the bank and waited outside in the car while

Darlene conducted her business. According to Howard, when he asked Darlene if

Tillman knew anything about the money, Darlene told him that Tillman “was the

worst mistake she’d made in her life.”

Howard testified that when he asked Darlene about the missing money,

Darlene “expressed complete cluelessness of where the money was.” Howard

testified that Darlene also did not recall writing a $10,000 check to an attorney, and

that Darlene indicated that she did not even know the attorney. Howard explained

that during his visit with Darlene, she was unable to provide him with any

information concerning her financial affairs or help him to determine where her

assets were located. Howard testified that he visited all of the banks in the area in an

attempt to capture the missing money. According to Howard, when his investigation

revealed that the missing money amounted to several million dollars, he decided to

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hire Michael Kiefer to conduct a forensic audit over a five-year period. Howard

explained that when he met with Darlene a second time, she was still unable to

provide any information concerning the missing money.

Howard testified that the forensic audit showed that between $700,000 and

$1.3 million dollars was missing from Darlene’s accounts. According to Howard,

Darlene cannot handle her money, and a permanent guardian of Darlene’s estate

should be appointed to manage her finances and ensure that Darlene is not “exploited

and looted.” Howard explained that Darlene’s bank records strongly suggest that an

unknown person has engaged in a deliberate pattern of fraud to drain the assets of

Darlene’s estate.

Kiefer, a certified public accountant who is also certified in financial

forensics, testified that Howard hired him to examine Darlene’s banking information

and to help locate missing funds. According to Kiefer, he prepared three reports in

Darlene’s case. Kiefer explained that he analyzed the outflow of money from

Darlene’s account and determined that Darlene had used several methods to

withdraw cash from her bank account from January of 2011 through September

2014. Kiefer testified that he used three different methodologies in conducting his

audit, and that approximately $3.8 million came out of Darlene’s account during the

applicable time period, with thirty-three percent of that amount, or $1.3 million,

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taken out through cash transactions that were untraceable. Kiefer explained that the

amount of cash transactions substantially increased from 2011 to 2014, and that there

seemed to be a correlation between the time that Tillman entered Darlene’s life in

2011, and the increase of missing cash. Kiefer determined that the amount of missing

cash from Darlene’s account is between $732,280.09 and $1,308,425.84.

White, Darlene’s guardian ad litem and the court investigator, testified that

his duty was to protect the best interests of Darlene. White explained that as part of

his investigation, he met with Darlene and took her to the doctor. White filed an

interim report, in which he stated that Darlene had very little recall of events,

including the guardianship, her latest hospitalization, and her financial affairs. White

reported that Darlene had difficulty with time, including the date and year.

According to White, when he questioned Darlene about the large cash transactions

that had occurred between July and September 2014, Darlene could not recall any

details. White testified Darlene did not recognize the transactions, which totaled

$84,000.

White explained that when he took Darlene to her examination with Dr.

Trahan, he assisted Darlene with her paperwork. White testified that when he told

Darlene that she needed to sign her name as Darlene Hoffpauir, Darlene asked him

if she was still married to Tillman. White further testified that Darlene told him that

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marrying Tillman was a big mistake. According to White, at the time he prepared

his interim report, it appeared obvious that Darlene had been exploited and was in

need of a permanent guardian of her estate.

In his final report, White stated that four different doctors had diagnosed

Darlene with some degree of dementia, and Darlene could not understand with

reasonable accuracy the value of her estate. White testified that Darlene’s estate has

a sustainability problem, and that the evidence showed attempts at less restrictive

alternatives to a guardianship of the estate had been made, including multiple

attempts at powers of attorney and placing different people on Darlene’s bank

accounts to help Darlene manage her money, but all of those attempts had failed.

According to White, Darlene’s estate was vulnerable, and it was in Darlene’s best

interest that a guardian be appointed to manage and protect her assets.

Gripon, a board certified psychiatrist, testified that the trial court appointed

him to conduct a psychiatric competency examination on Darlene. Gripon testified

that he examined Darlene in September 2014, and Gripon explained that his

examination included a face-to-face interview, a Mini-Mental State Examination

(“MMSE”), and a formal mental status examination. In his report, Gripon stated

that Darlene was a “relatively poor historian[,]” and that “her immediate memory

and recent recall was significantly deficient.” Gripon noted in his report that Darlene

15
was not oriented to time or to recent events, her “fund of general information was

essentially nil[,]” and her “social judgment is impaired.” Gripon testified that

Darlene scored a fourteen on the MMSE, and he explained that a score of thirteen to

twenty indicates a moderate level of dementia. Gripon explained that Darlene’s score

was on the border between moderate and severe.

Gripon testified that when he asked Darlene about her financial matters, she

seemed to be “totally oblivious to what was going on.” Gripon explained that while

Darlene had an accurate knowledge of the amount of money she received monthly,

Darlene could not account for where any of the money was spent. According to

Gripon, Darlene suffers from moderate dementia. Based on his examination, Gripon

diagnosed Darlene with “Senile Dementia of the Alzheimer’s Type-moderate

state[,]” which is now called neurocognitive disorder, moderate degree. Gripon

opined that, based on reasonable psychiatric probability, Darlene is totally

incapacitated and does not possess sufficient ability to manage issues involving her

person or her finances. Gripon recommended that Darlene undergo a full battery of

neuropsychological testing, which he opined, would clearly support the diagnosis of

senile dementia.

Trahan, a board certified neuropsychologist, testified that the trial court

appointed him to conduct a full neuropsychological examination on Darlene for the

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purpose of evaluating her capacity. Trahan explained that the examination, which

usually takes about seven hours, includes interviews with the patient and family

members, a record review, and approximately fifteen different test procedures.

Trahan interviewed Darlene, conducted a comprehensive neurobehavioral

examination, and prepared a report describing the results of Darlene’s examination.

Trahan explained that one of his biggest concerns was that Darlene seemed

distressed and depressed. According to Trahan’s report, Darlene indicated that she

was having problems with memory, confusion, disorientation, depression, anxiety,

and nervousness. Darlene also reported unusual fears and being afraid of Tillman.

According to Trahan, Darlene’s psychological factors “were clearly affecting her

presentation during the course of [the] examination.” Trahan observed that Darlene’s

“judgment and reasoning were fair, at best[,]” and that Darlene had limited insight

concerning some of her circumstances.

Trahan indicated that during the interview, Darlene stated that she could not

remember the exact date that she married Tillman. Darlene reported that Tillman

dragged her to get married, and Darlene did not want to go. According to Trahan,

Darlene stated that Tillman was rude to her and had been taking her money, but

Darlene did not know how Tillman was taking her money or how much he had taken.

According to Trahan, Darlene stated that her estate was probably worth millions,

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and at one point, Darlene reported that she had not received any trust funds. Trahan

stated that Darlene seemed unaware of how much money she was receiving from her

trust, and Darlene did not know where her accounts were. Trahan testified that

Darlene also reported that she had been depositing $10,000 of her check into the

bank and getting $20,000 cash back, and Darlene did not know what was happening

with the money.

Trahan diagnosed Darlene with Dementia NOS, Major Depressive Disorder,

Anxiety Disorder, and possible Alzheimer’s disease. Trahan explained that Darlene

needed to be tested by a neurologist to have a definite diagnosis of Alzheimer’s.

Trahan reported that Darlene exhibited “clear signs of dementia.” Based on his

examination, Trahan concluded that, with reasonable neuropsychological certainty,

Darlene did not have the cognitive capability to handle her finances or manage her

personal affairs. Trahan, noting that it appeared that Darlene had been exploited

financially, recommended that the court appoint an individual to handle Darlene’s

financial affairs to ensure that Darlene’s resources are protected and used in her own

best interests. According to Trahan, Darlene “is not only exhibiting cognitive

problems, but psychological issues that in [his] opinion, render her incapable of

making sound judgments[.]” Trahan testified that it was in Darlene’s best interest

that the trial court appoint a guardian of Darlene’s estate and person.

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 Darlene presented her own expert witness at trial. Dr. Mohammad Hamza, a

professor and a neuropsychologist, testified that he is a licensed clinical

psychologist. Hamza testified that Tillman’s attorney requested that he conduct a

comprehensive neuropsychological evaluation on Darlene. Hamza tested Darlene

over a five-day period in October 2014, which included a clinical interview, mental

status exam, and standardized tests for dementia. In January 2015, Hamza conducted

an evaluation clinical interview and prepared his report. Hamza explained that the

most significant observation he made was that Darlene was depressed and distressed,

and Darlene reported that she was agitated due to family conflict.

Hamza testified that based on his evaluation, Darlene does not have

significant cognitive and memory impairment or a major neurocognitive disorder

that is due to Alzheimer’s disease. Hamza stated in his report that his

neuropsychological results indicated that Darlene had mild to marginally moderate

cognitive deficits, mild memory deficits, and her intellectual ability functioning was

below average. Hamza opined that Darlene’s neuropsychological status is secondary

to the psychopathology state, which has been impacted by family conflict, personal

issues, and legal issues. According to Hamza, Darlene’s psychological evaluation

shows that Darlene has a range of disorder features that have significantly impacted

her behaviors, memory, and cognitions.

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 Hamza diagnosed Darlene with Adjustment Disorder with mixed anxiety and

depressed mood, Adjustment Disorder, and an Unspecified Neurocognitive

Disorder, which is a mild cognitive impairment. According to Hamza, even with a

mild neurocognitive deficit, Darlene is still able to handle daily activities and

manage her finances and personal affairs. Hamza explained that Darlene was well

aware of her finances and has the ability to seek expert advice when needed. Hamza

concluded that Darlene is not an incapacitated person, and at the time he tested

Darlene, she did not need a guardian. Hamza recommended, among other things,

that Darlene see a neurologist for further testing, because a comprehensive

neuropsychological evaluation must include a neurologist’s opinion to determine

what type of dementia Darlene has and if it is treatable.

The record shows that Dr. Sid Epperson, a licensed psychologist who Darlene

designated as a non-retained expert, also conducted a psychological evaluation on

Darlene. Epperson did not testify at trial, but his psychological report was admitted

into evidence. Trahan and Hamza noted in their reports that they had reviewed

Epperson’s report. Epperson’s report indicated that he interviewed Darlene in

September 2014, and that an attorney referred Darlene for a psychological evaluation

to determine her current level of cognitive functioning. In his report, Epperson

indicates that Darlene’s intellectual ability falls within the average for adults her age

20
and her psychological prognosis is fair to good. Epperson diagnosed Darlene with

Anxiety Disorder and Cognitive Disorder NOS. According to Epperson’s report,

Darlene appears to be capable of managing her finances in her own interest, making

good financial decisions, and managing her affairs without a guardian.

Darlene also presented the deposition testimony of Dr. Chris Penning, her

treating physician. Penning testified that in August 2014, he wrote a letter of

competency stating his opinion that Darlene was competent to take care of herself.

According to Penning, the only time his records indicate that Darlene was confused

or under stress was in 2009, which was shortly after Darlene’s husband died.

Penning testified that he ordered an MRI of Darlene’s brain in August 2011, and the

report indicated that Darlene only had age-related changes. Penning explained that

at the time of his last visit with Darlene, which was in October 2015, he believed

that Darlene was competent to make her own decisions and take care of herself.

Penning further explained that he had no opinion concerning whether Darlene was

competent to take care of her financial affairs. Penning testified that he dismissed

Darlene as a patient, because Darlene became noncompliant after she married

Tillman.

The record further shows that in October 2015, the LaFleurs requested the

trial court to order Darlene to submit to additional examinations by Gripon and

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Trahan, because it had been over a year since the initial court-ordered examinations.

In December 2015, the trial court ordered Darlene to submit to an additional

psychiatric examination. The jury heard testimony that Darlene violated the trial

court’s order and refused to submit to the examination.

Darlene testified that she had refused to go for another court-ordered

examination because she had been abused by the trial court. Darlene explained that

she was sick and dehydrated when she saw Dr. Trahan, and it was wrong that she

had to undergo Trahan’s examination in that condition. Darlene also explained that

she was not interested in attending the court-ordered family visitations, because her

children were verbally abusive. According to Darlene, her children were driving her

crazy and she was very depressed. Darlene explained that she has dedicated her life

to her children and grandchildren, and they had hurt her by seeking a guardianship.

Darlene testified that Tillman is a good husband, and she plans to live in

Colmesneil with Tillman for the rest of her life. According to Darlene, prior to

Howard taking over her estate, she always paid her bills on time. Darlene explained

that she had been good to her children and grandchildren, but they always wanted

money. Darlene explained that she will eventually inherit a large amount of money,

and she planned to have her accountant help manage her money. According to

Darlene, her family is seeking a guardianship because they just want her money.

22
 Tillman testified that in September 2011, he met Darlene at a funeral.

According to Tillman, he and Darlene began spending time together, and they

became an item[.]” Tillman explained that he decided to marry Darlene, because

they were practically living together as husband and wife, and he did not want to be

a bad example for the children in their families. According to Tillman, Darlene was

excited about planning their wedding, but when Darlene’s family opposed the

marriage, Darlene became angry and decided to get married without telling anybody.

Tillman testified that Darlene wanted to get married despite how her family felt.

According to Tillman, he and Darlene have been common-law married since

December 2011, and they had been living together for three years when they

formally married. Tillman testified that they are happily married.

Tillman testified that in 2012, he became concerned about Darlene’s daughter,

Paula, because Paula was on Darlene’s bank accounts and had written checks to

herself. According to Tillman, Darlene’s children demanded money all the time,

especially Paula’s son, Dustin. Tillman explained that Dustin would come three

times a day to get envelopes of money. Tillman testified that he and Darlene had a

couple of disagreements about the money disbursements, and Tillman would leave

when Darlene’s family got involved.

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 According to Tillman, Darlene is independent and capable of conducting her

business. Tillman explained that Darlene liked for Tillman to chauffeur her around,

which included driving Darlene to the bank. Tillman testified that Darlene routinely

went to the bank and withdrew “[c]razy amounts of cash.” Tillman explained that he

told Darlene that it was not safe for her to walk around with a purse full of cash.

Tillman testified that he finally convinced Darlene to scale back to withdrawing less

than $10,000 from the bank. Tillman also explained that he talked with Michael

about Paula spending so much money, and Tillman convinced Darlene to let Michael

help manage Darlene’s money. According to Tillman, Michael was in charge for

three weeks before Michael stole money from Darlene’s savings account. Tillman

testified that things did not get any better when Darlene put Buffy in charge of her

finances. According to Tillman, Darlene is able to take care of her finances with the

help of a professional money manager.

The jury found, by clear and convincing evidence, that Darlene is an

incapacitated person because of a mental condition, that it is in the best interest of

Darlene to appoint a guardian, and that Darlene’s property will be protected by the

appointment of a guardian. The jury further found that Darlene lacks the capacity to

handle business, managerial, and financial matters, but did not find that Darlene

lacks the capacity to operate a motor vehicle, vote in a public election, determine her

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own residence, or consent to medical, dental, psychological, or psychiatric

treatment. The jury also found that the LaFleurs were not qualified to serve as

guardians of the estate, and appointed Joshua Heinz to serve as the guardian of

Darlene’s estate. The trial court entered a final judgment in accordance with the

jury’s verdict.

ANALYSIS

In issue one, Darlene asserts that the evidence is factually insufficient to

support the jury’s findings that Darlene is an incapacitated person; Darlene lacks the

capacity to handle business, managerial, and financial affairs; it is in Darlene’s best

interest for the court to appoint a guardian; and Darlene’s property would be

protected by such an appointment. According to Darlene, the LaFleurs failed to

prove by clear and convincing evidence that Darlene is an “incapacitated person”

because of a physical and mental condition that was evident and recurring during the

relevant six-month period at issue, which Darlene maintains is within six months of

the trial of this matter. Darlene also argues that the LaFleurs failed to prove that she

was substantially unable to manage her affairs because of a physical or mental

defect. The LaFleurs argue that there was clear and unequivocal evidence from four

independent, court-appointed experts, and that the law does not require that the

evidence of the condition causing incapacity be established in the six months prior

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to trial. The LaFleurs argue that, in determining the incapacity of an adult proposed

ward, the factfinder may consider evidence beyond the six-month period prior to

trial, including a physician’s certificate from an examination. According to the

LaFleurs, the testimony included evidence of recurring acts or occurrences in the

preceding six months and not merely isolated instances of negligence or bad

judgment.

The burden of proof needed to appoint a guardian is the “clear and convincing

standard,” which means “the measure or degree of proof that will produce in the

mind of the trier of fact a firm belief or conviction as to the truth of the allegations

sought to be established.” Tex. Civ. Prac. & Rem. Code Ann. § 41.001(2) (West

Supp. 2017); Tex. Est. Code Ann. § 1101.101(a)(1) (West Supp. 2017). This

heightened burden of proof affects the appellate standard of review for factual

sufficiency. In the Interest of CH., 89 S.W.3d 17, 25 (Tex. 2002). In conducting a

factual sufficiency review, we consider whether the evidence rises to the level of

clear and convincing, and determine whether, based on the entire record, a factfinder

could reasonably form a firm conviction or belief that its finding was true. Id. at 25,

28. We consider whether disputed evidence is such that a reasonable factfinder could

not have resolved it in favor of the finding. In the Interest of J.F.C., 96 S.W.3d 256,

266 (Tex. 2002). If, in light of the entire record, the disputed evidence that a

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reasonable factfinder could have credited in favor of the finding is so significant that

a factfinder could not reasonably have formed a firm belief or conviction in the truth

of its finding, then the evidence is factually insufficient. Id. The factfinder is the

exclusive judge of the credibility of the witnesses and the weight to be given to their

testimony. In the Interest of Boatsman, 266 S.W.3d 80, 86 (Tex. App.—Fort Worth

2008, no pet.).

Before appointing a guardian, the trial court must find, by clear and

convincing evidence, that (1) the proposed ward is an incapacitated person; (2) it is

in the proposed ward’s best interest to have the court appoint a person as the

guardian; (3) the proposed ward’s rights or property will be protected by the

appointment of a guardian; (4) alternatives to guardianship have been considered

and determined not to be feasible; and (5) support and services available to the

proposed ward that would avoid the need to appoint a guardian have been considered

and determined not to be feasible. Tex. Est. Code Ann. § 1101.101(a)(1). The trial

court must also find, by a preponderance of the evidence, that the court has venue of

the case, the person to be appointed guardian is eligible to act as guardian and

entitled to the appointment, the proposed ward is totally without capacity to manage

her property, or lacks the capacity to do some but not all of the tasks necessary to

manage her property. Id. § 1101.101(a)(2) (West Supp. 2017).

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 An “incapacitated person” means, among other things, an adult who, because

of a physical or mental condition, is substantially unable to manage the individual’s

own financial affairs. Tex. Est. Code Ann. § 1002.017(2)(c) (West 2014). A

determination of incapacity of an adult proposed ward, other than a person who must

have a guardian appointed to receive funds from the government, must be evidenced

by recurring acts or occurrences in the preceding six months and not by isolated

instances of negligence or bad judgment. Tex. Est. Code Ann. § 1101.102 (West

2014). The trial court may not grant an application to create a guardianship of an

incapacitated person unless the applicant presents a written letter or certificate from

a licensed physician that is dated “not earlier than the 120th day before the date the

application is filed[,]” and “based on an examination the physician performed not

earlier than the 120th day before the date the application is filed.” Id. § 1101.103

(West Supp. 2017).

The physician’s letter or certificate must describe, among other things, the

nature, degree, and severity of the proposed ward’s incapacity, including any

functional deficits regarding the proposed ward’s ability to handle business and

managerial matters and to manage financial affairs. Id. § 1101.103(b) (West Supp.

2017). The physician’s letter must also provide an evaluation of the proposed ward’s

physical condition and mental functioning and summarize the proposed ward’s

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medical history if reasonably available. Id. § 1101.103(b)(3). In providing the

evaluation under subsection (3), the physician must state whether improvement in

the proposed ward’s physical condition and mental functioning is possible, and, if

so, state the period after which the proposed ward should be reevaluated to determine

whether a guardianship is still necessary. Id. § 1101.103(b)(3-a).

If the trial court determines that it is necessary to appoint physicians to

examine the proposed ward, the trial court must make the determination at a hearing,

and the appointed physicians must examine the proposed ward and issue a

physician’s letter or certificate that complies with sections 1101.103(a) and (b). Id.

§ 1101.103(c), (d) (West Supp. 2017). We note that section 1101.103 states that the

physician’s letter or certificate must be dated not earlier than the 120th day before

the date the application is filed, not within six months before the hearing date. See

Tex. Est. Code Ann. § 1101.103. Section 1101.103 only provides that the ward be

reevaluated if the physician states that improvement in the proposed ward’s physical

condition and mental functioning is possible. Id. § 1101.103(b)(3-a). Thus, we

disagree with Darlene’s contention that section 1101.102 limits the factfinder’s

consideration of evidence regarding incapacity to the six-month period prior to trial.

In this case, the jury heard evidence that Darlene had dementia and did not

possess sufficient ability to manage her finances. The jury heard evidence that

29
Darlene had problems managing her money and was unable to provide information

concerning her financial affairs, and that a forensic audit showed that the amount of

missing cash from Darlene’s account was between $732,280.89 and $1,308,425.84.

Several witnesses testified that less restrictive alternatives to a guardianship had

been tried, but were unsuccessful. The jury also heard testimony that it was in

Darlene’s best interest to have a guardianship of her estate established to help

Darlene manage her finances and to protect her estate.

Giving due consideration to the evidence that the factfinder could reasonably

have found to be clear and convincing, we conclude that the evidence presented at

trial was factually sufficient to prove by clear and convincing evidence that Darlene

is an incapacitated person, it is in Darlene’s best interest to have the court appoint a

person as guardian, Darlene’s rights and property will be protected by the

appointment of a guardian, alternatives to guardianship have been considered and

determined not to be feasible, and support and services available to Darlene that

would avoid the need to appoint a guardian have been considered and determined

not to be feasible. See In re J.F.C., 96 S.W.3d at 266; see also Tex. Est. Code Ann.

§§ 1101.101(a), 1002.017(2)(c). We overrule issue one.

In issue two, Darlene complains that the trial court abused its discretion by

excluding evidence concerning whether Darlene’s refusal to follow the trial court’s

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orders constituted evidence of mental incapacity. Darlene argues that the trial court

erred by excluding Hamza’s testimony as rebuttal to the LaFleurs’ contention that

Darlene is mentally incapacitated because she refused to attend family visitations

and submit to a psychiatric examination. According to Darlene, the LaFluers’

counsel argued during trial and closing argument that Darlene’s refusal to comply

with the court’s orders was against her own best interest and constituted evidence of

her incapacity.

We review a trial court’s decision to exclude evidence for an abuse of

discretion. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000).

In determining whether the trial court abused its discretion, we must decide whether

the trial court acted without reference to any guiding principles or rules. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court does

not abuse its discretion as long as some evidence of substantive and probative

character exists to support the trial court’s decision. Butnaru v. Ford Motor Co., 84

S.W.3d 198, 211 (Tex. 2002); Ayala v. Ayala, 387 S.W.3d 721, 728 (Tex. App.—

Houston [1st Dist.] 2011, no pet.).

The record shows that the jury heard testimony from several witnesses

regarding Darlene’s refusal to submit to a court-ordered psychiatric examination and

attend family visitations. When Darlene attempted to present rebuttal testimony from

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Hamza, the LaFleurs objected based on Darlene’s failure to designate Hamza on the

issue of whether the court-ordered family visitations were appropriate. The record

shows that Darlene’s counsel made a bill of exception regarding the excluded

testimony, during which Hamza testified that he reviewed audio recordings of the

family visitations. The LaFleurs reurged their objection that Darlene had failed to

designate Hamza on the issue and argued that Darlene’s failure to give prior notice

that Hamza had reviewed the audio recordings and would offer testimony

concerning the family visitations would be unfair and prejudicial. The trial court

sustained the LaFleurs’ objection.

Rule 194.2(f) of the Texas Rules of Civil Procedure provides that upon

request, a party may obtain disclosure concerning the general substance of a

testifying expert’s mental impressions and opinions, as well as all documents and

tangible things that have been provided to or reviewed by the expert in anticipation

of the expert’s testimony. Tex. R. Civ. P. 194.2(f). The purpose of Rule 194.2(f) is

to give the opposing party sufficient information about the expert’s opinions to allow

the opportunity to prepare for a meaningful cross-examination and expert rebuttal

evidence. Pro Plus, Inc. v. Crosstex Energy Servs., L.P., 388 S.W.3d 689, 705 (Tex.

App.—Houston [1st Dist.] 2012), aff’d, 430 S.W.3d 384 (Tex. 2014). Rule 193.6

provides that a party who fails to amend or supplement a discovery response in a

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timely manner may not introduce in evidence the material or information that was

not timely disclosed unless the court finds that there was good cause for the failure

to timely amend or supplement or that such failure will not unfairly surprise or

prejudice the other party. Tex. R. Civ. P. 193.6(a). The burden of establishing the

good cause or lack of unfair surprise or unfair prejudice is on the party seeking to

introduce the evidence, and a finding of the lack of unfair surprise or prejudice must

be supported by the record. Tex. R. Civ. P. 193.6(b).

The clerk’s record shows that Darlene’s designation of expert witnesses stated

that Hamza may be called upon to give testimony in the form of opinions within the

scope of his expertise concerning the psychiatric and psychological condition of

Darlene. The designation further states that Hamza had relied upon Darlene’s

medical and psychological records, his meetings with Darlene, depositions, sworn

testimony in the case and psychological testing, as well as his psychological

knowledge and expertise. Based on our review of the clerk’s record, Darlene never

amended or supplemented her designation of expert witnesses to disclose that

Hamza had relied upon audio recordings of the family visitations and might be called

upon to give an opinion concerning the visitations he reviewed. The record does not

support a finding of the lack of unfair surprise or prejudice. See Tex. R. Civ. P.

193.6(b). We therefore conclude that the trial court did not abuse its discretion by

33
excluding Hamza’s rebuttal testimony. We overrule issue two and affirm the trial

court’s judgment.

AFFIRMED.

______________________________
STEVE McKEITHEN
Chief Justice

Submitted on January 4, 2018
Opinion Delivered March 15, 2018

Before McKeithen, C.J., Horton and Johnson, JJ.

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