In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00067-CV
IN THE ESTATE OF CHARLOTTE DIAL SIMMS, DECEASED
On Appeal from the 121st District Court
Terry County, Texas
Trial Court No. 20,285, Honorable Pat Phelan, Presiding
October 4, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Lonnie D. Clark and Til Dawn Tatum, acting pro se, appeal from a final order
admitting for probate the April 27, 2015 last will and testament of Charlotte Dial Simms.
The limited appellate record before us indicates that a dispute arose regarding whether
the will was actually the last one executed by the decedent. The trial court submitted the
controversy to a jury, and that body entered its verdict finding the April 27th instrument to
be the decedent’s valid testament. Though the argument posed by Clark and Tatum is
somewhat unclear, we read it as their attempt to attack the evidentiary basis of the verdict.
So too does Clark question whether the trial court infringed upon his constitutional rights
when it allegedly ordered him to appear for trial despite his having a previously scheduled
medical conflict. We affirm.
Regarding whether the evidence was sufficient to support the jury’s verdict, we say
the following. Neither Clark nor Tatum requested a reporter’s record of the trial. Indeed,
they told us via letter that the document would not be requested. This raises an
insurmountable obstacle to their success on appeal. The standards of review by which
we abide when assessing the legal and factual sufficiency of the evidence underlying a
verdict obligate us to review the evidence of record. See In re J.J.K., 340 S.W.3d 535,
538 (Tex. App.—Amarillo 2011, no pet.) (citing In re Marriage of Spiegel, 6 S.W.3d 643,
646 n.1 (Tex. App.—Amarillo 1999, no pet.)). When an appellant fails to provide us a
record of that evidence, there is nothing for us to review. See id. Rather, in those
circumstances, we presume that the missing record actually supported the verdict. See
In re Marriage of Spiegel, 6 S.W.3d at 646 (relying on TEX. R. APP. P. 37.3(c) and noting
that “we need not consider those issues that are dependent upon the presence of the
[reporter’s record]”). Thus, the option with which we are left is to overrule the attack upon
the sufficiency of the evidence underlying the jury’s verdict.
Regarding the matter of appearing for trial and Clark’s constitutional rights, the
record before us discloses that Clark moved to quash a subpoena mandating his
appearance at trial. A conflicting medical procedure served as a ground for his motion.
He also filed a motion for protective order and mentioned the same ground therein. So
too did he allude to a general “invasion of personal, constitutional, or property rights” in
the latter motion. Though the trial court scheduled Clark’s motions for an emergency
hearing, a transcription of that hearing was not included in the appellate record. Nor does
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the appellate record indicate that the trial court actually ruled on them. Additionally, the
absence of a reporter’s record of the actual trial prevents us from even determining if the
issue was resolved prior to trial, either urged or abandoned at trial, or considered by the
trial court.
To preserve a complaint for review, one must not only bring the matter to the trial
court’s attention. The record also must show that the trial court ruled or refused to rule
on the complaint. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, ___ (Tex. 2018) (per
curiam). Because the limited record before us does not do that, the complaints related to
the foregoing motions were not preserved for review. Thus, we overrule them.
The final issue before us concerns a motion for sanctions. The appellees, Bryan
Burrows and J. Kathleen Moore, ask us to consider awarding same against Clark and
Tatum because the latter “made no effort to present any issue to the Court in a manner
that would support reversal, or even the application, extension or modification of existing
law.” Another reason offered to support the request pertains to an alleged intent on the
part of Clark to cause delay. That is, Burrows/Moore tell us that “Clark has expressly
threatened Burrows he would tie up the case on appeal for ‘as long as four years’ unless
Burrows and Moore threw Clark a bone.” Yet, we were cited to nothing of record
illustrating that Clark made such a statement; simply mentioning it in an appellees brief,
as they do here, does not fill the void. See Bridges v. State, No. 07-17-00215-CR, 2018
Tex. App. LEXIS 2059, at *12 n.2 (Tex. App.—Amarillo Mar. 21, 2018, no pet.) (mem.
op., not designated for publication) (citing Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex.
Crim. App. 1981), and noting that “comments by an attorney in an appellate brief are not
evidence”).
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Texas Rule of Appellate Procedure 45 authorizes an appellate court to sanction
an appellant if it determines the appeal is frivolous. TEX. R. APP. P. 45. The decision to
do so lies within our sound discretion, though. Cogsdil v. Jimmy Fincher Body Shop, LLC,
No. 07-16-00303-CV, 2017 Tex. App. LEXIS 10166, at *10 (Tex. App.—Amarillo Oct. 30,
2017, pet. denied) (mem. op.). And, in exercising our discretion, not only must we act
with prudence, caution, and careful deliberation but also view the record from the
perspective of the appellant. See Johnson v. Riggs, No 07-12-00095-CV, 2013 Tex. App.
LEXIS 3150, at *6–7 (Tex. App.—Amarillo Mar. 22, 2013, no pet.) (mem. op.). Having
abided by these admonitions, we deny the Burrows/Moore request for sanctions.
The final judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
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in the Estate of Charlotte Dial Simms
Combined Opinion