Yvette Hernandez v. First Bank D/B/A First Bank Mortgage, Its Successors and Assigns

NUMBER 13-18-00243-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

YVETTE HERNANDEZ, Appellant,

v.

FIRST BANK D/B/A
FIRST BANK MORTGAGE,
ITS SUCCESSORS AND ASSIGNS, Appellees.

On appeal from the County Court
of Willacy County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Perkes

Appellant Yvette Hernandez appeals from a final judgment rendered in favor of

appellees First Bank d/b/a First Bank Mortgage, its Successors and Assigns, on its

forcible detainer claim. By two issues, Hernandez contends the trial court erred by: (1)
entering a final judgment that did not comply with statutory requirements; and (2) denying

her request for a jury trial. We affirm.

I. BACKGROUND

Hernandez resides at the property commonly known as 8620 Simo Road, Lyford,

Texas 78569. First Bank purchased the property at a foreclosure sale and instituted a

forceable detainer action against Hernandez in the local justice of the peace court. The

justice of the peace entered a judgment in favor of First Bank, and Hernandez filed a

notice of appeal to the Willacy County Court.

The Willacy County Clerk sent Hernandez a notice that a $341 filing fee must be

paid in order to perfect the appeal. The fee was paid, and an order was issued on March

15, 2018, setting the trial for April 11, 2018.

Before the trial commenced, Hernandez requested a jury in open court. There is

no written request for a jury in the clerk’s record and the $341 filing fee paid by Hernandez

did not include a jury fee. See TEX. R. CIV. P. 216. The trial judge denied the request.

After conducting a bench trial, the trial court announced a judgment in favor of First

Bank and informed Hernandez that she had ten days to vacate the property or a writ of

possession would be issued. The court also set the appeal bond at $3,600.

Nine days after the trial, on April 20, 2018, the court signed a written judgment that

awarded First Bank possession of the property and a conditional writ of possession if

Hernandez did not vacate the property by April 21, 2018, the tenth day after the trial court

rendered judgment in open court. Two days later, on April 23, 2018, First Bank

requested that the Willacy County Clerk issue a writ of possession.

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 The next day, on April 24, 2018, Hernandez filed a motion to modify the judgment,

urging the trial court to postpone the writ’s issuance date until April 30, 2018, the tenth

day after the judgment was signed. See TEX. PROP. CODE ANN. § 24.007. On April 30,

2018, the trial court ordered the writ to be issued the following day, the eleventh day after

the judgment was signed, and denied Hernandez’s motion as moot. Although a writ was

issued the following day, there is no officer’s return in the clerk’s record indicating that the

writ was executed.

On May 3, 2018, Hernandez filed her notice of appeal to this Court. On August

17, 2018, this Court notified Hernandez that she had failed to request a reporter’s record

and arrange for payment of the record. See TEX. R. APP. P. 37.3(c). The Court

instructed Hernandez to cure the defect within ten days and provide proof of compliance

or “the Court will consider and decide those issues or points that do not require a

reporter’s record for a decision.” To date, the Court has no record of Hernandez

requesting or paying for a reporter’s record.

In its brief to this Court, First Bank states Hernandez “is still currently living on the

property.” Hernandez did not claim in her brief that she has been dispossessed of the

property, and she did not file a reply brief contesting First Bank’s representation that she

continues to reside at the property. See id. R. 38.3.

II. STANDARD OF REVIEW

When a trial court commits an error of law, the judgment may not be reversed

unless the error “probably caused the rendition of an improper judgment” or “probably

prevented the appellant from properly presenting the case to the court of appeals.” Id.

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R. 44.1(a). All errors are subject to the harmless error rule. G & H Towing Co. v.

Magee, 347 S.W.3d 293, 297 (Tex. 2011) (citing Lorusso v. Members Mut. Ins. Co., 603

S.W.2d 818, 819–20 (Tex. 1980)). “The rule recognizes that a litigant is not entitled to a

perfect trial for, indeed, few trials are perfect.” Lorusso, 603 S.W.2d at 819. Thus, the

rule “establishes a sound and common sense policy of not reversing a judgment unless

the error or errors can be said to have contributed in a substantial way to bring about the

adverse judgment.” Id. at 819–20. It is the complaining party’s burden to demonstrate

harm on appeal. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009) (stating

that even if the trial court committed an error, “the complaining party must still show harm

on appeal to obtain a reversal.” (citing TEX. R. APP. P. 44.1(a))).

“The appellant bears the burden to bring forward an appellate record sufficient to

enable us to determine whether the complaints of reversible error are substantiated.”

Eagle Fabricators, Inc. v. Rakowitz, 344 S.W.3d 414, 421 (Tex. App.—Houston [14th

Dist.] 2011, no pet.) (citing Uranga v. Tex. Workforce Comm’n, 319 S.W.3d 787, 791 (Tex.

App.—El Paso 2010, no pet.)).

III. DISCUSSION

A. Writ of possession

By her first issue, Hernandez contends the final judgment deprived her of the right

to supersede the judgment before the writ of possession issued. Hernandez relies

primarily on § 24.007 of the Texas Property Code, which provides that, “A judgment of a

county court may not under any circumstances be stayed pending appeal unless, within

10 days of the signing of the judgment, the appellant files a supersedeas bond in the

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amount set by the county court.” TEX. PROP. CODE ANN. § 24.007. In this case, the

judgment was rendered in open court and the written judgment was signed nine days

later. Hernandez contends the judgment violated § 24.007 because First Bank was

awarded a conditional writ of possession ten days from the date the judgment was

rendered instead of ten days from “the signing of the judgment.” See id.

Even if we assume, without deciding, that the final judgment contains an error, we

conclude the error was harmless because the writ was not issued until the eleventh day

after the judgment was signed. In other words, regardless of the recital in the judgment,

Hernandez was afforded ten days to post the $3,600 supersedeas bond before the writ

was issued. 1 See id. Because Hernandez did not suffer an injury, she failed to

demonstrate a reversible error. See TEX. R. APP. P. 44.1(a); Castillo, 279 S.W.3d at 667.

Hernandez’s first issue is overruled.

B. Jury request

By her second issue, Hernandez argues the trial court erred by denying her

request for a jury trial. We review a trial court’s denial of a jury request for abuse of

discretion. See General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997). A

trial court abuses its discretion if its actions were arbitrary and unreasonable or if it acted

without reference to any guiding rules or principles. Temple v. Archambo, 161 S.W.3d

217, 224 (Tex. App.—Corpus Christi–Edinburg 2005, no pet.) (citing Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). We defer to the trial

court’s factual determinations and only determine if the trial court correctly applied the

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Moreover, First Bank contends, and Hernandez does not dispute, that the writ of possession was
never executed; to this day, Hernandez continues to reside at the property.
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law to the facts in reaching its legal conclusion. Garza v. Attorney General, 166 S.W.3d

799, 808 (Tex. App.—Corpus Christi–Edinburg 2005, no pet.) (citing State v. $217,590.00

in U.S. Currency, 18 S.W.3d 631, 633–34 (Tex. 2000)). Under this standard, the

appellant must establish that the trial court failed to make the only reasonable decision.

Id. (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).

Texas Rule of Civil Procedure 216 provides:

No jury trial shall be had in any civil suit, unless a written request for a jury
trial is filed with the clerk of the court 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.

Unless otherwise provided by law, a fee of ten dollars if in the district court
and five dollars if in the county court must be deposited with the clerk of the
court within the time for making a written request for a jury trial. The clerk
shall promptly enter a notation of the payment of such fee upon the court's
docket sheet.

TEX. R. CIV. P. 216.

This rule operates in conjunction with Rule 245. In a contested case, the parties

are entitled to receive notice of a first trial setting not less than forty-five days in advance.

Id. R. 245. Thus, notice under Rule 245 triggers a party’s obligations to timely file a

written jury request and pay the fee. Id. R. 216. In this contested case, the trial court

notified the parties on March 15, 2018, that the trial had been set for April 11, 2018, which

was less than forty-five days in advance.2 When a trial court’s untimely notice under

2 Hernandez does not complain on appeal that the trial court’s notice was defective under Rule
245; therefore, we will not consider it as an independent basis for reversal. See TEX. R. APP. P. 38.1(f),
(i). Moreover, the issue is waived if the parties proceed to trial without objecting. Abend v. Federal Nat’l
Mortg. Ass’n, 466 S.W.3d 884, 886 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding party appealing
forcible detainer action to county court waived error under Rule 245 by failing to object). There is no
indication in the record before us that Hernandez objected.

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Rule 245 prevents a party from satisfying the thirty-day requirement under Rule 216, a

written jury demand made within thirty days of the trial setting will be deemed timely. In

re J.C., 108 S.W.3d 914, 916–17 (Tex. App.—Texarkana 2003, no pet.) (citing Bell

Helicopter Textron, Inc. v. Abbot, 863 S.W.2d 139 (Tex. App.—Texarkana 1993, no pet.)).

In this case, however, Hernandez did not file a written jury demand in the Willacy

County Court at any point in time, nor did she pay the filing fee.3 But Hernandez’s failure

to comply with Rule 216 does not necessarily end our inquiry. Because it “is one of our

most precious rights,” even where a party does not comply with Rule 216, “a trial court

should accord the right to jury trial if it can be done without interfering with the court’s

docket, delaying the trial, or injuring the opposing party.” Gayle, 951 S.W.2d at 476

(citations omitted).

In this case, despite our clear warning about the consequences, Hernandez failed

to request a reporter’s record. The only indication in the appellate record that Hernandez

made a jury request are two notations by the judge on the court’s docket sheet: “Request

for jury denied on day of trial” and “Attorney for defendants request for a trial by jury

denied in open court.” See TEX. R. APP. P. 34.5(a)(3) (generally, the clerk’s record must

3 The appendix to Hernandez’s brief does contain a copy of an answer that includes a jury demand
that Hernandez purportedly filed in the justice of the peace court. See TEX. R. APP. P. 38.1(k)(2) (“The
appendix may contain any other item pertinent to the issues or points presented for review . . . .”).
Hernandez would like us to consider this document as evidence that she satisfied Rule 216’s requirements.
In essence, she contends that her original jury request in the justice of the peace court carried over to her
trial de novo in the Willacy County Court.

We do not reach this question, however, because this item was not included in the clerk’s record.
It was Hernandez’s obligation to ensure that all items necessary to this appeal were included in the clerk’s
record, see id. R. 34.5(b); Rakowitz, 344 S.W.3d at 421, and we cannot consider items outside of the
appellate record unless they implicate our jurisdiction. Arbor E&T, LLC v. Lower Rio Grande Valley
Workforce Dev. Bd., Inc., 476 S.W.3d 25, 29–30 (Tex. App.—Corpus Christi–Edinburg 2013, no pet.).
Accordingly, we will proceed on the record before us, which indicates that Hernandez first asserted her
right to a jury trial in Willacy County Court by making a request in open court on the day of trial.
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include the court’s docket sheet). Thus, without a reporter’s record, we are left to

speculate whether the trial court applied Gayle correctly. See Gayle, 951 S.W.2d at 476;

Rakowitz, 344 S.W.3d at 421; Garza, 166 S.W.3d at 808. In short, we cannot determine

whether a trial court abused its discretion without a record of how the trial court exercised

its discretion. See Rakowitz, 344 S.W.3d at 421. We overrule Hernandez’s second

issue. See id.

IV. CONCLUSION

The judgment of the trial court is affirmed.

GREGORY T. PERKES
Justice

Delivered and filed the
12th day of September, 2019.

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