                                                                                        ACCEPTED
                                                                                    04-15-00011-CV
                                                                        FOURTH COURT OF APPEALS
                                                                             SAN ANTONIO, TEXAS
                                                                              7/13/2015 10:28:45 PM
                                                                                     KEITH HOTTLE
                                                                                             CLERK

                        NO. 04-15-00011-CV


                                                                   FILED IN
                                                            4th COURT OF APPEALS
                IN THE COURT OF APPEALS                      SAN ANTONIO, TEXAS
            FOURTH SUPREME JUDICIAL DISTRICT               07/13/2015 10:28:45 PM
                   SAN ANTONIO, TEXAS                         KEITH E. HOTTLE
                                                                    Clerk




             IN THE INTEREST OF A.V. AND A.V.

MARIA ESTRADA (FKA VALDIVIA), RESPONDENT, APPELLANT

                                 vs.

           LUIS VALDIVIA, PETITIONER, APPELLEE




 Appeal from the 438th Judicial District Court of Bexar County, Texas
                     Cause No. 2005-CI-17414




    OBJECTIONS AND REPLY BRIEF FOR APPELLANT




                                                THE LAMBERT LAW FIRM
                                                          Jessica L. Lambert
                                                             SBN: 24035401
                                                         118 E. Ashby Place
                                                   San Antonio, Texas 78212
                                                         Ph. (210) 737-2200
                                                         Fax (210) 587-6567
                                            jlambert@thelambertlawfirm.com


                                          ATTORNEY FOR APPELLANT
                                            TABLE OF CONTENTS


TABLE OF CONTENTS ................................................................................................i

INDEX OF AUTHORITIES ......................................................................................... ii

OBJECTIONS AND ARGUMENTS......................................................................... 1-7

Objection No. 1...............................................................................................................1

Objection No. 2........................................................................................................... 1-2

Objection No. 3...............................................................................................................2

Objection No. 4...............................................................................................................3

Objection No. 5...............................................................................................................3

Reply to Issue No. 1 ................................................................................................... 3-4

Reply to Issue No. 2 ................................................................................................... 4-6

Reply to Issue No. 4 ................................................................................................... 6-7

CONCLUSION ..............................................................................................................7

PRAYER ........................................................................................................................7

CERTIFICATE OF SERVICE .......................................................................................7




                                                               i
                                      INDEX OF AUTHORITIES


Cases
Boriack v. Boriack,
541 S.W.2d 237 (Tex. App. – Corpus Christi 1976, no writ) ........................................4

In re M.A.S.,
233 S.W.3d 915 (Tex. App. – Dallas, 2007) ..................................................................7

Jones v. Lurie,
32 S.W.3d 737 (Tex. App. – Houston [14th Dist.] 2000, no pet.).……………………..7

Reliance Steel & Aluminum Co. v. Sevcik,
267 S.W.3d 867 (Tex. 2008) ..........................................................................................5

State v. Central Expressway Sign Assocs.,
302 S.W.3d 866 (Tex. 2009)…………………………………………………………..5



Statutes
Texas Family Code §153.008 ..................................................................................... 3-4
Texas Family Code §153.009 .........................................................................................3
Texas Family Code §105.002 .........................................................................................3
Texas Family Code §153.317 .........................................................................................6
Texas Family Code §153.258 .........................................................................................6



Rules
Texas Rule of Appellate Procedure 44.1. .......................................................................6
Texas Rule of Evidence 803 ...........................................................................................4
Texas Rule of Civil Procedure 296-299 .........................................................................6




                                                          ii
                   APPELLANT’S OBJECTIONS AND REPLY TO
                       APPELLEE’S BRIEF IN SUPPORT


OBJECTION NO.1:

       Appellant, Maria Estrada (FKA Valdivia) objects to Appellee’s Amended Brief, for

failure to timely file by the deadline and failure to request leave of court to file the brief

untimely if Appellee’s Amended Brief contains any substantive change from the original

brief filing. Appellant does not object to the Amended Brief if only a Certificate of

Compliance was filed to conform to the Texas Rules of Appellate Procedure.

OBJECTION NO. 2:

       Appellant, (hereinafter “Maria”) objects to each and every reference in Appellee’s

(hereinafter “Luis”) Brief or Amended Brief if accepted by the Honorable Fourth Court

over Maria’s objection, that Maria moved to Comal County, Texas. (See, Brief for

Appellee, pgs. 2, 25). Maria, who had the exclusive right to designate the primary residence

of the children within Bexar and contiguous counties prior to the trial of this matter moved

the children within Bexar County in accordance thereto and not to Comal County (CR 16,

61). In fact, after Maria moved with her children to another home within Bexar County,

Luis filed a Motion for Additional Temporary Orders and/or Motion to Modify Temporary

Orders asking the Court to preclude Maria’s exclusive right to designate the primary

residence of the children within Bexar and contiguous counties (CR 57-58).               The

Honorable David Canales granted Luis’ motion and ruled that “the children shall remain

enrolled and continue to attend Scobee Middle School and Sun Valley Elementary School”

in violation of Maria’s inherent exclusive rights (CR 68-69). Maria filed a Motion for
                                              1
Reconsideration and supporting trial brief which Judge Canales denied (CR 61-65, 70-71).

Thereafter, Maria filed a Petition for Writ of Mandamus, Motion for Emergency Stay and

Request for Temporary Relief in the Fourth Court of Appeals contending that her right to

move her children and choose their school was inherent in her exclusive right to designate

the primary residence of the children (CR 74-75). This Honorable Fourth Court of Appeals

granted Maria’s emergency stay, in part, stating,

              “The Court is of the opinion that a serious question concerning
              the mandamus relief sought requires further consideration.”
                    •                     •                     •
              “Any enforcement of that portion of the trial court’s August
              20, 2014 order requiring the children the subject of the
              underlying suit to remain enrolled and continue to attend
              Scobee Middle School and Sun Valley Elementary School is
              temporarily stayed until further order of this court.”

Ultimately the trial of this matter took place prior to the final ruling on Maria’s Petition for

Writ of Mandamus and Maria requested that the matter be dismissed for mootness (CR

113-117).

OBJECTION NO. 3:

       Maria objects to Luis’ Statement of Facts as contained in his brief for being

argumentative and failing to cite to the clerk’s and reporter’s records for veracity and

accuracy. Maria further objects to Luis’ Statement of Facts inasmuch as they are disputed,

fail to address the substantive and procedural facts of the case and intend to present as

Findings of Fact issued by the trial court. The trial court, although requested by Maria,

failed to file Findings of Fact and Conclusions of Law in this matter and therefore there are

no undisputed facts in this case (CR 108-112).

                                               2
OBJECTION NO. 4:

       Luis did not file a notice of appeal in this case; therefore Maria objects to any and

all issues presented for review by Luis that are not in direct response to issues presented on

appeal by Maria or could be fairly treated as a response to a subsidiary question of Maria’s

issues, including Issues 1A, 1B, 1C, 1D, 1E, 2, 3 and 4 (See, Brief for Appellee, pgs. ii, 1;

see also, Tex. R. App. P. 25, 38.1(f)). Maria further asserts that any failure by Luis to

respond directly to Maria’s issues presented on appeal is a waiver of said right to respond

(See, Tex. R. App. P. 38.2, 38.6).

OBJECTION NO. 5:

       Maria objects to any reference by Luis that the “written preference” was provided

“as a supplement to production and given to Luis at a pre-trial hearing.” There is no

evidence in the record to support such a claim and Luis fails to present any record

references supporting such allegation. Maria asks this court to disregard such contention

and/or strike that portion of Luis’ brief (See, Brief for Appellee, pg.13, Tex. R. App. P. 38).

REPLY TO APPELLEE’S RESPONSE, IF ANY, TO APPELLANT’S ISSUE NO. 1:

       The provisions of Tex. Fam. Code §105.002(c), §153.009(d) and repealed §153.008

are harmonious and not inapplicable or in conflict as asserted by Luis. Pursuant to Tex.

Fam. Code §105.002(c)(D):

              “In a jury trial: a party is entitled to a verdict by the jury…on
              the issue of the determination of which joint managing
              conservator has the exclusive right to designate the primary
              residence of the child.”

       Pursuant to Tex. Fam. Code §153.009(d):

                                              3
              “In a jury trial, the court may not interview the child in
              chambers regarding an issue on which a party is entitled to a
              jury verdict.”

       Repealed Tex. Fam. Code §153.008 operated as an evidentiary exception to the

hearsay rule to permit a written preference by a child 12 years or older stating to a court,

not a jury, where the child wanted to live (See, Boriack v. Boriack, 541 S.W.2d 237, 240

(Tex. App. – Corpus Christi, 1976) (rehearing denied) (“It is clear that the term ‘the court’

refers to the trial judge [and not the jury]). Otherwise documents written by a child are

considered hearsay unless it falls under an exception to the hearsay rule (See, Tex. R. Evid.

803). In this case, counsel for Maria objected to both the written preference pursuant to

the repealed statute §153.008 and as to hearsay. Luis’ contention that the statutes are

inapplicable in this case is unfounded. The statutes are in accord with another emphasizing

the Legislature’s intent that when a trial by jury is demanded, the parties are entitled to a

determination of conservatorship free from influence of written preferences or from a

judge’s contravention thereof.

REPLY TO APPELLEE’S RESPONSE, IF ANY, TO APPELLANT’S ISSUE NO. 2:

       Maria appeals to this Honorable Court that the trial court failed not only to provide

the statutory required time to review the Spanish documents by a certified Spanish speaking

translator, but also that the trial court failed to give her the opportunity to challenge the

translations by a certified Spanish speaking translator of their own (See, Brief for Appellant,

pgs.11-13). The trial court admitted the translations based upon an alleged rule in the Texas

Rules of Evidence that “a party can waive the 45 days’ advance notice requirement if the

document is “not complicated document and otherwise admissible” (RR Vol. III, 79:21-25
                                              4
thru 80:1-5). Luis does not respond to this contention presented in Maria’s brief or provide

any authority to support the judge’s authority.

       Although counsel for Maria has some semblance of the Spanish language it is

irrelevant with regard to the evidentiary safeguards in which Maria is entitled.

Furthermore, counsel for Maria pointed out to the trial court that his knowledge of the

Spanish language may not be sufficiently articulate to determine the accuracy of the

translations (RR Vol. III, 79:12-20), especially under the time constraints the trial court

imposed (RR Vol. III 157:4-12).

       Luis also argues that Maria waived her objection because she failed to point out

specific inaccuracies in the translations (See, Brief for Appellee, pg.19). This argument is

the basic premise of Maria’s entire contention. Maria was denied the opportunity to have

a translator review the translation so that she could point out specific inaccuracies. The

trial court’s evidentiary rulings on this issue providing counsel for Maria 12 minutes to

review the accuracy of Spanish translations amounted to harmful error and was calculated

to cause and probably did cause the rendition of an improper judgment. (RR Vol. III 157:4-

12).

       There is no specific test for harmless-error review, it is a matter of judgment based

on the appellate court’s evaluation of the entire case, considering the state of the evidence,

the strength and weakness of the case, and the verdict (See, Reliance Steel & Aluminum

Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008); State v. Central Expressway Sign Assocs.,

302 S.W.3d 866, 870 (Tex. 2009)). Moreover, Luis’ contention that the verdict did not

“turn on” the admission of the Spanish translated documents misstates the standard of
                                              5
review for erroneous evidentiary rulings. The Supreme Court of Texas in McCraw v.

Maris, requires an appellant to show the error probably caused the rendition of an improper

judgment not that the judgment “turns on” the evidence admitted or excluded (See,

McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992)). After the Supreme Court’s ruling,

Texas Rule of Appellate Procedure 44.1(a) adopted the “error probably caused the

rendition of an improper judgment” language thereby eliminating any question that the

standard of review for evidentiary rulings is a “but for” or “turns on” test. (See, Tex. R.

App. P. 44.1(a)).

REPLY TO APPELLEE’S RESPONSE, IF ANY, TO APPELLANT’S ISSUE NO. 4:

       Findings of Fact and Conclusions of Law are not properly requested in a trial by

jury (See, Tex. R. Civ. P. 296). Although Maria timely filed a request for the alternate or

extended possession schedule pursuant to Tex. Fam. Code §153.317 as well as a request

for findings in the possession schedule, the trial court failed to filed Findings of Fact as to

those issues (CC 108-109, 112). Luis’ contention that Maria failed to file a Notice of Past

Due Findings pursuant to Tex. R. Civ. P. 297 is inapplicable to this case. Maria filed a

request for findings only as to the issues in which the trial court ruled on, not the jury’s

verdict. Pursuant to Tex. Fam. Code §153.258 a party can request findings when a trial

court deviates from a standard possession schedule. As stated therein, these requests are

“without regard to rules 296 through 299 of the Texas Rules of Civil Procedure” (See, Tex.

Fam. Code §153.258). Thus, Maria is statutorily entitled to those findings simply from the

timely request without the need to file a Notice of Past Due Findings, and a failure by a

trial court to file said findings shall result in an abatement of the appeal if the appellate
                                              6
court cannot determine from the record the reasons for the deviation (See, In re MAS, 233

S.W.3d 915, 924 (Tex. App. – Dallas 2007, no pet.).

                                     CONCLUSION

       Although Maria believes that any one of these evidentiary errors calculated to cause

or probably did cause the rendition of an improper judgment, certainly the multiple errors,

even if considered harmless taken separately, result in reversal and remand for a new trial

if the cumulative effect of such errors is harmful (See, Jones v. Lurie, 32 S.W.3d 737, 745

(Tex. App. – Houston [14th Dist.] 2000, no pet.).

                                        PRAYER

       WHEREFORE PREMISES CONSIDERED, Appellant, Maria Estrada prays that

this Honorable Court REVERSE and REMAND this case for a new trial court and grant

such other and further relief to which Appellant may show herself to be justly entitled.

                            CERTIFICATE OF SERVICE

       I Jessica L. Lambert, hereby certify that a true and correct copy of the above and
foregoing instrument, REPLY BRIEF FOR APPELLANT, was sent via electronic filing
on this 13TH day of July 2015, in accordance with the Texas Rules of Civil and Appellate
Procedure to the following:

Yvonne Trevino
Law Office of Yvonne Trevino
5545 Fredericksburg Rd. Suite 210
San Antonio, Texas 78229
yvonne@trevinofamilylaw.com                      Jessica L                 Digitally signed by Jessica L Lambert
                                                                           DN: cn=Jessica L Lambert, o=The Lambert Law
                                                                           Firm, ou,


                                          By:    Lambert                   email=jlambert@thelambertlawfirm.com, c=US
                                                                           Date: 2015.07.13 22:24:58 -05'00'

                                                 JESSICA L. LAMBERT




                                             7
                    CERTIFICATE OF COMPLIANCE

            Certificate of Compliance with Type-Volume Limitation,
             Typeface Requirements and Type Style Requirements

      I certify that this document was produced on a computer using Microsoft
Word and contains 1912 words, as determined by the computer software’s word-
count function, excluding sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(2)(C), if any.
                                                             Digitally signed by Jessica L Lambert

                                   Jessica L Lambert         DN: cn=Jessica L Lambert, o=The Lambert Law Firm,
                                                             ou, email=jlambert@thelambertlawfirm.com, c=US
                                                             Date: 2015.07.13 22:25:20 -05'00'


                                   JESSICA L. LAMBERT
                                   Attorney for Appellant, Maria Estrada
                                   Dated: July 13, 2015
