                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 02-12-00525-CV

PATRICIA J. SUTTON                                                    APPELLANT

                                         V.

KURT WILLIAM HELWIG, DAVID R.                                         APPELLEES
SHOOP, SHOOP’S TEXAS
TERMITE & PEST CONTROL AND
SHOOP’S ENTERPRISES, INC.


                                     ------------

          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                     ------------

                       MEMORANDUM OPINION1
                                     ------------

                                  I. Introduction

      Pro se appellant Patricia J. Sutton filed the underlying negligence suit for

personal injuries in 2007 after appellee Kurt William Helwig, driving a Shoop’s

vehicle, allegedly hit her car in 2005.       At the 2012 trial, Sutton represented

      1
      See Tex. R. App. P. 47.4.
herself pro se, and her testimony was the only evidence in her case in chief. At

the conclusion of her case in chief, the appellees—Helwig, David R. Shoop,

Shoop’s Texas Termite & Pest Control, and Shoop’s Enterprises, Inc.—moved

for a directed verdict, which the trial court granted.

        II. Directed Verdict, Evidentiary, and Due Process Complaints

       In five interrelated issues containing multiple subissues, Sutton complains

that the trial court erred by granting a directed verdict and abused its discretion

by sustaining the appellees’ evidentiary objections, limiting her opening

statement, and generally conducting an unfair trial.

A. Plaintiff’s Petition and Trial Testimony

       In her petition, Sutton sought recovery for ―severe bodily injuries to her

head, neck, back, shoulders, torso, hips and legs,‖ as well as ―severe physical

pain and mental anguish‖ and damages so that she could ―receive proper

medical care for the injuries incurred in [the] incident.‖ Sutton specifically sought

recovery for medical expenses because she had ―become indebted to Medicare

for payment of medical services they [had] expended on her behalf and will have

additional medical expenses in the future as a result of said incident.‖ Finally,

Sutton also sought recovery for damage to her 1989 Buick Skyhawk, conceding

in her petition that Shoop’s insurer had paid for repairs to the vehicle but

complaining that it was no longer in the same condition that it had been before

the collision.



                                           2
      At trial, Sutton testified that she was born in 1943 and had many childhood

pre-existing medical conditions before she suffered several back and other

injuries in 1961, 1963, 1968, 1984, 1989, and 1990. At the time of the 2005

accident, Sutton was driving two people from her church on errands.            She

stopped the car at a red light at an intersection. Sutton said that her car was in

the left-turn lane and that cross-traffic was three lanes. A white sports car was in

the cross-traffic’s inside lane, also making a left turn. An SUV was in the middle

lane, and a red car was in the outside lane. The red car executed a right-hand

turn and was out of her way.

      Sutton stated that she ―should probably have started‖ when the light turned

green, but she needed to make a wide left turn to be able to get into the CVS

parking lot that was her destination. The little white sports car ―came out to turn

left into the Country Club shopping center,‖ and the SUV started to go at the

same time. Sutton said that because of a bad car accident she had experienced

in 1968, she did not go. Sutton then testified:

      He [appellees’ lawyer] says I said I started to go, that I went, I—
      honest, I don’t know. Whatever, I don’t know. So the next thing I
      knew is that I—the next thing I knew is something had happened.
      And so this—the car—the seat—the driver’s seat came off the
      railing. He says the impact was light, but the impact was so hard
      that it pushed my car all the way from back close to where I was
      stopped out into the actual center, the direct center of the
      intersection because when I got out of my car—I guess I sort of
      passed out because then all of the sudden I realized, gee,
      something has happened and my immediate reaction was thinking
      back to—you know, is this a repeat of what happened in ’68? And I
      did.


                                         3
            And then all of a sudden, I just knew I hurt and I had to try to
      move again. So I got out of the car and I was standing in the middle
      of the intersection in shock. And I thought, what are all of these
      people doing around me? And so I had two people in the car with
      me. I don’t think I’m allowed to talk about them, but I did have two
      people in the car with me. And they were yelling to me to get back in
      the car.

      Sutton said that she got back into the car so that she could move it out of

the street and then drove the car to a nearby parking lot. Helwig followed her in

his vehicle, got out, came over to her, and said, ―[M]y boss is going to take care

of everything.‖ Sutton testified that she called Shoop’s and asked to speak with

Mr. Shoop to tell him about the accident and what Helwig had said but was told

by Shoop’s employees that Mr. Shoop was out to lunch and unavailable. Sutton

then called her insurance company and reported the accident.

      Sutton drove her passengers to their home, took their groceries out of the

car, took her car to the Buick dealership for repairs, and picked up a rental car.

She concluded her direct testimony by stating, ―My car received a lot of damage

and I was hurt. I have been hurt since that day and my life has never been the

same since that day.‖ After the appellees’ lawyer had no questions for her on

cross-examination, Sutton rested her case, and the appellees moved for an

instructed verdict on the grounds of no evidence of any reasonable and

necessary medical expenses and less than a scintilla of evidence on liability.

The trial court granted Sutton a brief recess to research the motion prior to

granting it. Because Sutton complains that some of her evidence was improperly



                                        4
excluded, we will address these complaints next before analyzing whether the

directed verdict was proper and whether granting it denied her due process.

B. Evidentiary Objections

      Sutton argues that the trial court erred by sustaining the appellees’

objections to her testimony about the law on eggshell skull, her pre-existing

conditions, her photographic exhibit of the accident location, and her use of

hearsay. We review all of these complaints for an abuse of discretion. See Serv.

Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011) (stating that a trial court’s

rulings admitting or excluding evidence are reviewable for an abuse of

discretion). A trial court abuses its discretion if it acts without reference to any

guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v.

Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835,

838–39 (Tex. 2004).

      We first note that, as the trial court explained to Sutton during the trial, it is

the trial court’s role to define the particular legal principles applicable to a case. 2

See Greenberg Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 95 (Tex.


      2
         After the appellees objected to Sutton’s attempt to explain ―the eggshell
skull law‖ to the jury, the trial judge sustained the objection and told Sutton not to
―quote laws‖ to the jury. Sutton then asked, ―If I can’t quote law to the Jury, how
can I present facts that are on my side?‖ The trial judge replied, ―Facts are
different from the law. Just tell them the facts as you understand the facts.‖ The
trial judge reminded Sutton that he had told the jury that he would prepare the
charge and that it would have in it all of the law and instructions they needed to
make a decision based on the facts they would hear from the witness stand,
finally stating, ―I’m in charge of the law. You’re not.‖

                                           5
App.—Houston [14th Dist.] 2004, no pet.) (stating that a legal expert cannot

usurp the trial court’s role in trying the case). Therefore, the trial court did not

abuse its discretion by sustaining the appellees’ objection to Sutton’s testimony

about the eggshell skull rule.

      Further, the record does not reflect that the trial court actually sustained

any objections to Sutton’s testimony about her pre-existing conditions. To the

contrary, Sutton’s testimony about her pre-existing conditions since her birth in

1943 was uninterrupted until the appellees’ counsel began to object to what

appeared to be the beginning of a hearsay statement in the following portion of

Sutton’s testimony pertaining to severe injuries she sustained in 1968:

             Ms. Sutton: . . . I went home and the next day I got up and I
      went back to work. I looked pretty bad. A lot of—I was a
      salesperson for a fabric company and a lot of people didn’t want to
      look at me. They couldn’t stand to look at me, but I went to see one
      of my customers and he said to me, he looked right at me and he
      said, Pat—

             Mr. Oldham: Your Honor, I object to –

             Ms. Sutton: Okay. Never mind, okay.

Sutton then continued with her recitation about her pre-existing injuries from

1984 onward without another interruption until she attempted to explain the

eggshell skull rule.   The trial court never ruled on the appellees’ incomplete

objection, which it would have had to sustain in order for Sutton to complain

about it on appeal. See Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(2)




                                         6
(requiring the substance of the excluded evidence to be made known to the

court).

      Furthermore, with regard to Sutton’s complaint that the trial court erred by

sustaining the appellees’ objections to her photographic exhibit of the accident

location, the following dialogue occurred at trial:

           Ms. Sutton: . . . [C]an I show the picture of Midwestern
      Parkway and Jacksboro Highway.

             The Court: If there’s no objection to its admission into
      evidence and if there’s an objection, I’ll rule on the objection. If I rule
      that the pictures are admissible, then, yes, ma’am, you can show
      them to the Jury.

             Ms. Sutton: Okay. Do I have to enter it as an exhibit?

             The Court: Yes, ma’am.

           Ms. Sutton:      Do you need more than one copy of it, Your
      Honor?

             The Court: No, ma’am.

             Ms. Sutton: I have a list of—

             The Court: She can’t—I’m sorry. She can’t type down what
      we’re staying [sic] and make an exhibit numbered, so when you
      hand her an exhibit, you need to quit talking so she can mark the
      exhibit.

      (PLAINTIFF’S EXHIBIT NO. 1 MARKED.)

             Ms. Sutton: It’s a small picture. You probably can’t see it.

             Mr. Oldham: I object to showing it until it’s been introduced.

            The Court: Yeah, that’s why I told you you need to offer it into
      evidence. [Helwig] has an opportunity to object to it.


                                          7
              Ms. Sutton: Okay.

              The Court: Then I’ll rule on its admissibility.

              Ms. Sutton: Okay.

              The Court: If I rule it’s admissible, you can then show it to the
      Jury.

            Ms. Sutton: I will not be showing any exhibits from this time
      forward. . . .

Sutton did not ultimately offer the photographic exhibit of the accident location

into evidence, and the record does not contain it.3

      The record reflects that the trial court followed the rules of evidence by

sustaining the appellees’ objection to Sutton’s showing the exhibit until it had

been admitted. See Tex. R. Evid. 103; Perez v. Lopez, 74 S.W.3d 60, 66 (Tex.

App.—El Paso 2002, no pet.) (―To preserve error concerning the exclusion of

evidence, the complaining party must actually offer the evidence and secure an


      3
        After offering herself for cross-examination and at the conclusion of her
testimony, Sutton stated, ―I have no further witnesses, Your Honor. So that’s my
case.‖ The appellees then moved for an instructed verdict on the reasonable and
necessary medical expenses. When the trial court asked for a response, Sutton
stated, ―I was frustrated over the fact that I knew that every – I have – look at
these – these are all of my exhibits. I have good exhibits that support my case,
and I wasn’t allowed – I panicked and I just decided not to do each one of them
individually.‖ Sutton did not ask the trial court to admit these exhibits, and even if
she had, the trial court was not required to permit additional evidence after she
rested. Cf. Tex. R. Civ. P. 270; Poag v. Flories, 317 S.W.3d 820, 828 (Tex.
App.—Fort Worth 2010, pet. denied) (stating that in determining whether to grant
a motion to reopen, the trial court should consider whether the movant showed
due diligence in obtaining the evidence, whether the proferred evidence is
decisive, whether the reception of such evidence will cause undue delay, and
whether granting the motion will cause an injustice).

                                           8
adverse ruling from the court.‖). Sutton then never offered the exhibit itself into

evidence, providing the appellees with nothing to object to and providing us with

nothing to review. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(2).

      Finally, Sutton complains that the trial court improperly sustained the

appellees’ objections to hearsay during her description of the aftermath of the

accident. The objections occurred during the following testimony:

             Ms. Sutton: . . . And so I had two people in the car with me. I
      don’t think I’m allowed to talk about them, but I did have two people
      in the car with me. And they were yelling to me to get back in the
      car.

             Mr. Oldham: I object to anything that the people said unless
      they’re going to testify.

            Ms. Sutton: I’m not saying—all right. I got back in the car
      because I had to move the car out of the street. I waited seven
      years for this trial, Your Honor, and this is the way Mr. Oldham has
      been for seven years.

            ....

            Ms. Sutton: . . . So I called my insurance company and told
      them I had been rear-ended and then asked them what I should do
      and they said that—

              Mr. Oldham: Your Honor, I—I object to what people tell her.
      It’s just hearsay and –

            Ms. Sutton: It’s not hearsay.

            The Court: I’ll –

            Ms. Sutton: I have personal knowledge.

             The Court: I’ll sustain the objection as to what someone else
      told you as being hearsay.


                                        9
              Ms. Sutton: Me calling the insurance company isn’t hearsay.
      I did that.

             The Court: That’s exactly correct and he didn’t object to you
      saying you called the insurance company. He objected when you
      said, they told me. See, you’re about to say a statement made by a
      party that’s not here in court to be cross-examined and to testify
      under oath.

             Ms. Sutton: It’s my insurance company though.

           The Court: That’s hearsay. It doesn’t make any difference
      who[se] insurance company it is. I have sustained his objection.

The record does not reflect that the trial court ruled on the appellees’ first

hearsay objection or improperly excluded Sutton’s evidence by sustaining their

second. See Tex. R. Evid. 103; Tex. R. App. P. 33.1; see also Tex. R. Evid.

801(d) (defining ―hearsay‖ as a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted). We overrule all of Sutton’s evidentiary complaints contained

within her five issues.

C. Directed Verdict

      A directed verdict is proper only under limited circumstances: (1) when the

evidence is insufficient to raise a material fact issue, or (2) when the evidence

conclusively establishes the right of the movant to judgment or negates the right

of the opponent. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29

S.W.3d 74, 77 (Tex. 2000); Farlow v. Harris Methodist Fort Worth Hosp., 284

S.W.3d 903, 919 (Tex. App.—Fort Worth 2009, pet. denied). In reviewing a



                                          10
directed verdict, we follow the standards for assessing legal sufficiency of the

evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In a

directed-verdict review, we review the evidence in the light most favorable to the

person suffering the adverse judgment, and we must credit favorable evidence if

reasonable jurors could and disregard contrary evidence unless reasonable

jurors could not. City of Keller, 168 S.W.3d at 827; see also Exxon Corp. v.

Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011).

      In a negligence case, the plaintiff must establish the existence of a duty, a

breach of that duty, and damages proximately caused by that breach. Salinas v.

Allen, 366 S.W.3d 842, 846 (Tex. App.—Amarillo 2012, no pet.) (citing W. Invs.,

Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005)). The mere fact of injury does

not prove compensable pain and mental anguish. Grant v. Cruz, 406 S.W.3d

358, 364 (Tex. App.—Dallas 2013, no pet.). Further, a claim for past medical

expenses must be supported by evidence that such expenses were reasonable

                                        11
and necessary as a result of the injury. Whitaker v. Rose, 218 S.W.3d 216, 223

(Tex. App.—Houston [14th Dist.] 2007, no pet.).            A plaintiff can prove

reasonableness and necessity of past medical expenses through either expert

testimony on the issues of reasonableness and necessity or an affidavit prepared

and filed in compliance with civil practice and remedies code section 18.001. Id.

      Here, Sutton offered nothing into evidence to support her claim for

damages for physical injuries caused by the collision other than to state that she

had been hurt, even though she had alleged in her petition that she had suffered

injuries to her ―head, neck, back, shoulders, torso, hips and legs,‖ in addition to

physical pain and mental anguish and indebtedness to Medicare. She offered no

medical records or receipts for medical treatment into evidence. Cf. Haddard v.

Rios, No. 13-07-00648-CV, 2012 WL 1142779, at *3 (Tex. App.—Corpus Christi

Apr. 5, 2012, pet. denied) (mem. op.) (noting that plaintiff provided legally

sufficient evidence to support her award of past medical damages when she

offered her medical records and bills into evidence and had chiropractic expert

testify on her behalf that her injuries were caused by the vehicle accident); Byrd

v. Delasancha, 195 S.W.3d 834, 835–38 (Tex. App.—Dallas 2006, no pet.)

(reversing directed verdict on causation when plaintiff had testified that she had

no injuries before the accident but had them afterward and gave very specific

testimony about her accident-related injuries, which were documented in the

medical records admitted into evidence); Pilgrim’s Pride Corp. v. Smoak, 134

S.W.3d 880, 893–94 (Tex. App.—Texarkana 2004, pet. denied) (noting in low-

                                        12
speed car collision case that the jury had the direct testimony of accident

witnesses as well as photographs and diagrams of the scene). And she provided

neither expert testimony on the issues of reasonableness and necessity for

services nor an affidavit prepared and filed in compliance with section 18.001.4

See Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b) (West 2008 & Supp. 2013);

see also id. § 41.0105 (West 2008) (providing that recovery of medical or health

care expenses incurred is limited to the amount actually paid or incurred on

behalf of the claimant); Haygood v. De Escabedo, 356 S.W.3d 390, 391 (Tex.

2012) (holding that section 41.0105 limits the evidence at trial to expenses the

health care provider has a legal right to be paid).        Sutton also offered no

evidence to support her claim for property damage to her vehicle.5 Under the

      4
        We also note that as set out above, although Sutton generally alluded to a
car collision, her only direct testimony that Helwig, driving a Shoop’s vehicle, had
hit her vehicle was, ―I asked to talk to Mr. Shoop to tell him that one of his
employees had hit me and that he told me he’d take care of everything and I
needed to know what to do,‖ that she had told her insurance company that she
had been rear-ended, and ―I got hit.‖

       In her opening statement, Sutton told the jury that Helwig, driving a
Shoop’s pickup truck, rammed her so hard that she wound up in the middle of the
intersection. However, as the trial judge explained to Sutton before trial began,
opening statements are not evidence. Fort Worth Hotel Ltd. P’ship v. Enserch
Corp., 977 S.W.2d 746, 756 (Tex. App.—Fort Worth 1998, no pet.) (op. on reh’g);
see also Border Apparel-East, Inc. v. Guadian, 868 S.W.2d 894, 898 n.6 (Tex.
App.—El Paso 1993, no writ) (citing Tex. R. Evid. 603, which requires testimony
under oath or affirmation).
      5
       Sutton testified that she had purchased her vehicle new in 1989 and that it
was in good shape and ―didn’t have a scratch on it.‖ However, she did not testify
about what sort of damage it incurred in the collision other than her driver’s seat
being dislocated or how much it would cost to repair that damage.

                                        13
facts in the record here, we conclude that the trial court did not err by granting

the appellees’ motion for instructed verdict, and we overrule Sutton’s complaint.

See Prudential Ins. Co., 29 S.W.3d at 77 (stating that a court may instruct a

verdict if no evidence of probative force raises a fact issue on the material

questions in the suit).

D. Due Process

      After the trial court granted a recess for Sutton to review the law on

instructed verdicts, Sutton argued that an instructed verdict was improper for

insufficient evidence because she had ―presented all of [her] evidence in a

complaint that is on file with the Court‖ and that no one had rebutted her

statement that she had been rear-ended and hurt. After the trial judge granted

the instructed verdict, Sutton had the following conversation with him:

             Ms. Sutton: Did I make you mad, Your Honor?

           The Court: Not at all, why would you think you’d made me
      mad? I gave you about 30 minutes longer to look at that than I
      would have given an attorney. Why would you think you made me
      mad?

            Ms. Sutton: Well, because of the fact that you didn’t allow me
      to present—properly present my case.

            The Court: Yes, ma’am, I did. I even told you how to admit
      those photographs in evidence.

             Ms. Sutton: Yes.

             The Court: And because he had objected, you didn’t even try
      to present them after that. I told you exactly how to proceed with the
      photographs. I didn’t prevent you from presenting anything. I tried
      to help you see how to present the things.

                                        14
            Ms. Sutton: Yes, sir, I understand that, but you don’t
      understand that I’m sick and adversity upsets me and he played into
      that.

              The Court: Well, I—I have to be an impartial arbiter here and I
      helped you as much as I could by telling you what you needed to do
      to get these photographs in evidence. And you just quit. I—I don’t
      know why. I mean, I—I can’t be responsible for why. All I can do is
      what I can do under the circumstances. I owed the Defendant a fair
      trial also.

             Ms. Sutton: Yes, but he didn’t even have to present a trial.

      While Sutton bases part of her argument on the fact that the defense did

not present a case or allow her to cross-examine their witnesses, there is nothing

in the rules of civil procedure that requires a defendant to put on evidence after a

plaintiff’s case.   Cf. Tex. R. Civ. P. 268 (providing for a motion for directed

verdict). To the contrary, the plaintiff has the obligation to present evidence

during his or her case in chief to meet the burden of proof on his or her claims.

Tex. R. Civ. P. 265(b) (requiring party upon whom rests the burden of proof on

the whole case to introduce his evidence). Further, a due process complaint,

which requires not only a showing of an interest entitled to procedural due

process protection but also a showing of what process is due, must still comply

with our rules of preservation of error. See In re L.M.I., 119 S.W.3d 707, 711

(Tex. 2003) (stating that it must be apparent from context that appellant was

attempting to raise a due process challenge); Univ. of Tex. Med. Sch. at Houston

v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (discussing due process).              At a



                                        15
minimum, due process requires notice and an opportunity to be heard at a

meaningful time and in a meaningful manner. Than, 901 S.W.2d at 930.

      In addition to several hearings over the course of the case, Sutton had the

opportunity to conduct voir dire and did so, and she had the opportunity to

present her case at trial on the elements of negligence. See id. It is also clear

from the record that during and after trial, the trial judge attempted to give her

what guidance he could without prejudicing the other side. See id. Therefore, to

the extent that Sutton has raised and preserved a due process complaint, based

on the record before us and our analysis of the directed verdict set out above, we

hold that the trial court did not deprive Sutton of due process, and we overrule

her complaint. See Amrhein v. La Madeleine, Inc., No. 06-12-00107-CV, 2013

WL 839227, at *2 (Tex. App.—Texarkana Mar. 6, 2013, pet. stricken) (mem. op.)

(describing pro se appellant’s brief ―as a fifty-page denunciation of perceived

slights by the legal system and her belief that because she has not prevailed, the

system has treated her unfairly at every turn‖).

E. Opening Statement Limitation

      Sutton complains that the trial court abused its discretion by limiting both

parties’ opening statements to five minutes without warning on the morning of

trial. As noted by Sutton in her April 29, 2013 letter to this court, which we

address below, the record does not reflect any discussion between the trial court

and the parties with regard to such a limitation or that Sutton objected to it other

than stating to the jury during her opening statement, ―I have five minutes to tell

                                        16
you this,‖ and during her own testimony, ―I was given a very short time to say

something. I didn’t say everything.‖

      Nonetheless, assuming both that the trial court had abused its discretion

by limiting Sutton’s opening statement to five minutes and that Sutton had

preserved this complaint on the record for our review,6 Sutton has not explained

how the limitation probably caused rendition of an improper judgment or probably

prevented her from properly presenting the case to this court. See Tex. R. App.

P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex.

2005); see also In re Commitment of Camarillo, No. 09-12-00304-CV, 2013 WL

      6
        Although Sutton argues that there is no time limitation in the rules of civil
procedure and that it would not have taken long for her to present her twenty-
one-page opening statement, rule 265 states that ―[t]he party upon whom rests
the burden of proof on the whole case shall state to the jury briefly the nature of
his claim or defense and what said party expects to prove and the relief sought.‖
Tex. R. Civ. P. 265(a) (emphasis added). Further, as one of our sister courts has
noted,

             Rule 265(a) does not afford counsel the right to detail to the
      jury the evidence which he intends to offer, nor to read or describe in
      detail the documents he proposes to offer. The practice of detailing
      the expected testimony in the opening statement places matters
      before the jury without the trial court[’s] having had an opportunity to
      determine the admissibility of such matters. We are of the further
      opinion that such a practice sometimes has the effect of misleading
      or confusing the jurors as between the expectations of counsel and
      evidence actually admitted. The proper limitation of the opening
      statement is a matter necessarily resting in the discretion of the trial
      court subject to review for abuse of discretion.

Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170 (Tex. Civ. App.—Austin 1975,
writ ref’d n.r.e.) (citations omitted); see also Guerrero v. Smith, 864 S.W.2d 797,
800 (Tex. App.—Houston [14th Dist.] 1993, no writ) (stating that the abuse of
discretion standard gives trial courts wide latitude in limiting opening statements).

                                         17
2732662, at *2 (Tex. App.—Beaumont June 13, 2013, no pet.) (mem. op.)

(concluding that even if the trial court had improperly restricted appellant’s

opening statement, appellant did not show harm); Tacon Mech. Contractors, Inc.

v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 675 (Tex. App.—Houston [14th Dist.]

1994, writ denied) (overruling complaint regarding restricted opening statement

when appellant failed to establish a clear abuse of discretion, failed to preserve

its objection, and failed to show harm). We overrule her issues pertaining to the

limitation of her opening statement.

F. Remaining Arguments

      Sutton argues that the appellees and the trial court treated her unfairly

during the litigation process and complains that the court reporter omitted many

of her statements because they would show how prejudiced appellees’ counsel

and the trial judge were against her. Sutton also contends that the proposed

order for directed verdict that the appellees sent to her to approve differed from

the one that the trial court signed, that the trial court was hostile to her, that the

court reporter ―put words in [her] mouth‖ that she never spoke, and that the

appellees’ attorney harassed and tried to intimidate her. She further complains

that the case unnecessarily dragged on for five years after the appellees had

already admitted liability.

      We first note that Sutton sent this court an eleven-page letter on April 29,

2013, complaining about ―typographical errors, errors of omission, [and] insertion

of statements Plaintiff In Pro Se/Appellant does not remember saying or agreeing

                                         18
to‖ in the reporter’s record. In response, this court issued two letters on May 10,

2013. One letter contained our determination that the reporter’s record filed on

April 19, 2013 did not comply with the Uniform Format Manual for Texas

Reporters’ Records effective July 1, 2010, and we directed the court reporter to

send a corrected original and a corrected copy of the reporter’s record to the

court on or before May 20, 2013.

      In our other May 10, 2013 letter, we noted that Sutton had identified

various alleged inaccuracies in the substantive contents of the reporter’s record.

Pursuant to rule of appellate procedure 34.6(e), we directed the parties to file

with this court on or before May 20, 2013:        (1) a written, signed stipulation

including the agreed-upon text for each alleged inaccuracy that the parties could

resolve and (2) for each alleged inaccuracy that could not be resolved by the

parties, a statement that no agreement could be reached and a brief argument

discussing why that specific, challenged portion of the record is or is not relevant

to the resolution of the appeal. See Tex. R. App. P. 34.6(e). We specifically

stated in the letter, ―If the parties cannot agree on whether or how to correct the

reporter’s record so that the text accurately discloses what occurred in the trial

court, then we may submit the dispute to the trial court for resolution.‖ Id.

      On May 14, 2013, the court reporter filed a corrected reporter’s record, and

on May 17, 2013, the appellees’ counsel replied to our directive by stating that he

did not see any matters raised by Sutton that pertained to the appeal but that if

Sutton advised him of any of the specific points she believed pertained to the

                                         19
appeal on the issues before the court, he would review and comment on them.

Sutton did not file any response with this court, and on May 24, 2013, we issued

a letter to the parties in which we noted that Sutton had not responded to our

directive and stated that ―[a]fter reviewing appellees’ response, we have

determined that no abatement is necessary at this time.‖

      Having provided Sutton with the opportunity to resolve her record-based

complaints prior to this case’s submission, see Tex. R. App. P. 34.6(e)(1)–(3),7

and having noted no apparent deficiencies in the corrected record that would

have affected the outcome despite Sutton’s general allegations to the contrary,8

we will not further address her reporter’s record complaints.           See, e.g.,

Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (noting, with regard

to a partial record case, that ―[t]he burden is on the appellant to see that a

sufficient record is presented to show error requiring reversal‖). We also will not

      7
        Had Sutton responded to our instructions, we would have abated this
appeal to the trial court to determine whether the reporter’s record was
inaccurate on the items that she and the appellees’ counsel could not agree on
that were relevant to the appeal’s resolution. See Taylor v. Taylor, No. 02-05-
00435-CV, 2007 WL 2460359, at *7 (Tex. App.—Fort Worth Aug. 31, 2007, pet.
denied) (mem. op.) (noting, after having abated appeal and remanded the case
to the trial court to determine whether the reporter’s record was inaccurate, that
appellant merely wanted to change his testimony).
      8
        For example, Sutton alleges on appeal that the reporter’s record ―omitted
important happenings,‖ including that she had tripped on the way to the witness
stand, that her knee had given way as she left the stand, causing her to drop
everything she was carrying, and that she remained close to tears on several
occasions. However, she does not explain the relevance of these and her other
allegations with regard to the case’s ultimate outcome. See Tex. R. App. P.
44.1(a).

                                        20
consider any of the extraneous documents outside of the record that Sutton

included in the appendix to her appellate brief.       See Tex. R. App. P. 34.1

(defining appellate record as the clerk’s record and the reporter’s record).

        In her appellate brief, Sutton complains that the appellees sent her a copy

of an order on directed verdict that she received at her post office box on

December 14 and then sent a copy modified to add court costs (she does not

state on which day her post office box received this order); Sutton states that her

post office box received the signed order on December 19 and that she did not

receive either the modified copy or the signed order until December 30, 2012.

She further complains that adding court costs had not been discussed or brought

up with her on the day of trial.     However, she also asserts that she ―had a

complete melt down‖ after the December 12, 2012 trial and retired to her bed

until December 23, when she emerged to go to church, before returning to her

bed until December 30. Other than apparently alleging a lack of notice, Sutton

does not raise any other complaints with regard to the order on costs, and under

the circumstances presented on the face of this record, we cannot say that the

trial court abused its discretion by assessing costs against her as the losing party

or that any lack of notice harmed her when the trial court’s plenary power

remained in effect when she received the signed order.9 See Tex. R. Civ. P. 131,

329b.


        9
       When a party appears pro se, she is held to the same standards as a
licensed attorney and must comply with all applicable laws and rules of
                                         21
      Finally, the record does not reflect mistreatment of Sutton by either the

appellees or the various trial judges that presided over the case during the five

years it remained pending.10 To the contrary, Sutton stated to the trial judge that

the appellees had offered to settle the case ―on many occasions‖ and had

―actually paid for damages in this case,‖ and she frequently received more

explanations about rulings than the trial judge was obliged to give.

      The record reflects that Sutton did not understand how to litigate a case,

how opening statements worked (despite explanation from the trial judge), how

or when to offer evidence (despite instructions from the trial judge), or how a

motion in limine (as opposed to a trial objection) functioned with regard to

evidence at trial (despite the trial judge’s efforts to explain). The record also

reflects that in 2009, Sutton twice moved for a continuance of the trial date and

that she again moved for a continuance in 2011, all of which the trial court

granted, extending the case’s duration. Prior to recessing so that Sutton could

research the appellees’ motion for instructed verdict, the trial judge attempted to

explain to her how that motion worked. The trial judge also specifically informed



procedure. Robb v. Horizon Communities Improvement Ass’n, No. 08-11-00236-
CV, 2013 WL 5352033, at *3 (Tex. App.—El Paso Sept. 25, 2013, no pet.). If pro
se litigants were not required to comply with applicable rules of procedure, they
would be given an unfair advantage over parties represented by counsel. Id.
Rule of civil procedure 131 provides for the successful party to a suit to ―recover
of his adversary all costs incurred therein, except where otherwise provided.‖
Tex. R. Civ. P. 131.
      10
        Two judges recused themselves over the course of the case.

                                        22
Sutton, ―Wait for [the court reporter] to get on the record. You want everything to

be on the record if you’re going to have an appeal. She’s back on the record.

Tell me what you want to say now.‖

       Even if the trial judge had been less helpful to Sutton, however, ―[a] trial

judge has broad discretion in conducting the proceedings before him.‖ In re

M.J.M., 406 S.W.3d 292, 299–300 (Tex. App.—San Antonio 2013, no pet.) (citing

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240–41 (Tex. 2001)). Likewise,

judicial rulings alone almost never constitute a valid basis to allege bias or

partiality, and ―judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily

do not support a bias or partiality challenge.‖ In re A.E.A., 406 S.W.3d 404, 420

(Tex. App.—Fort Worth 2013, no pet.) (citing Dow Chem. Co., 46 S.W.3d at 240).

As we noted in A.E.A., ―expressions of impatience, dissatisfaction, annoyance,

and even anger do not establish bias or partiality,‖ and a judge’s ordinary efforts

at courtroom administration—even if they appear stern or short-tempered—

usually do not establish bias or partiality. Id. at 420–21. Moreover, to preserve a

complaint about judicial conduct for review, an objection to the conduct must be

made in the trial court at the time the conduct occurs. M.J.M., 406 S.W.3d at

300.

       Therefore, even if the record reflected that Sutton had preserved a

complaint about any of the trial court’s alleged actions over the case’s five-year

course, we cannot say that its actions constituted an abuse of discretion. And

                                         23
the record does not reflect that Sutton ever sought any recourse against the

appellees’ counsel under the rules of civil procedure or the civil practice and

remedies code for any procedural misbehavior that she perceived over the

course of the case. See Tex. Civ. Prac. & Rem. Code Ann. § 10.002 (West

2002); Tex. R. Civ. P. 13, 21b, 215.1. Therefore, we overrule the remainder of

Sutton’s five issues.

                                 III. Conclusion

      Having overruled all of Sutton’s issues, we affirm the trial court’s judgment.


                                                   PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DELIVERED: November 14, 2013




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