
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS







IN THE INTEREST OF:

JONATHAN RAY VELEZ-URESTI,

A CHILD.

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No. 08-10-00182-CV

Appeal from
 288th District Court

of Bexar County, Texas

(TC # 1995-CI-13445)



 

 

 




O P I N I O N

            Alan Uresti, appearing pro se, appeals from an order dismissing his motion to modify
conservatorship for want of prosecution.  As he frames the issue, “[t]his cause on appeal . . .
involves a 15-year long battle for custody. . . .”  For the reasons that follow, we affirm.
FACTUAL SUMMARY
            On November 6, 1995, the trial court entered a decree of paternity establishing that Uresti
is the father of Jonathan Ray Velez-Uresti.  The court entered orders appointing the child’s
parents as temporary joint managing conservators.  In 2009, Uresti filed a motion to modify
seeking to be named sole managing conservator.  On September 22, 2009, the trial court denied
Uresti’s request but entered additional temporary orders which established a progressive
visitation schedule.  Uresti subsequently filed a motion to modify the temporary orders seeking a
standard possession order  and a separate motion to modify child support.  On March 25, 2010,
the trial court sustained a contest to Uresti’s affidavit of inability to pay costs and ordered him to
pay all filing fees and service costs within twenty days of the date of the order.  The court set
Uresti’s motion to modify for jury trial on May 17, 2010, but Uresti did not appear.  The trial
court dismissed the case because Uresti failed to appear and because he had failed to pay fees and
costs as previously ordered.  This appeal follows.  APPELLATE JURISDICTION
            Uresti raises 54 issues on appeal.  Issues 1-4 relate to a December 27, 2006 order finding
Uresti in contempt and reducing child support arrearages to judgment.  A contempt order is not
reviewable by appeal.  Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985); Hernandez v.
Hernandez, 318 S.W.3d 464, 467 n.1 (Tex.App.--El Paso 2010, no pet.).  Contempt orders may
only be reviewed by an application for a writ of habeas corpus, if the contemnor has been
confined, or by a petition for a writ of mandamus, if the contemnor has not been confined.  See
Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); Ex parte Williams, 690 S.W.2d 243, 243
(Tex. 1985).  To the extent Uresti is raising an issue related to the 2006 arrearage judgment, his
notice of appeal was untimely as he did not file it until June 4, 2010.  See Tex.R.App.P. 26.1.  
For these reasons, we do not have jurisdiction to review his first four issues.
            In Issues 5-8, Issues 13-15, Issues 17-33, Issues 35-44, and Issues 46-49, Uresti raises
arguments related to sequential temporary orders, interlocutory rulings on multiple motions to
recuse filed by him against a laundry list of jurists,


 a motion to compel discovery, alleged ex
parte communications, and alleged judicial conspiracies designed to violate his due process rights
under the 14th Amendment of the United States Constitution.  An appeal generally may be taken
only from a final judgment.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). 
Appeals of  interlocutory orders are appealable only when authorized by statute.  Jack B. Anglin
Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992); see, e.g., Tex.Civ.Prac.&Rem.Code Ann.
§ 51.014 (West 2008).  It matters not whether constitutional complaints are lodged against these
pre-trial determinations.  In a suit to modify support or conservatorship under the Texas Family
Code, a modification order is final and appealable.  See Bilyeu v. Bilyeu, 86 S.W.3d 278, 282
(Tex.App.--Austin 2002, no pet.).  The trial court has not entered a modification order because it
has dismissed the suit.  There is no statutory authorization to review the interlocutory rulings of
which Uresti complains on appeal.  Because we lack jurisdiction, we overrule Issues 5-8, Issues
13-15, Issues 17-33, Issues 35-44, and Issues 46-49.
DENIAL OF INDIGENCY
            Issues 9-12, Issue 16, Issues 45-46, and Issues 50-51 involve the trial court’s denial of
Uresti’s indigence status.  We recognize the litany of unpublished opinions articulating the
proposition that an order sustaining a contest to an affidavit of indigence is interlocutory and not
appealable.  We may review an order sustaining a contest only when it is made as part of a
pending appeal from a final judgment or other appealable order.  Tex.R.App.P. 20.1; In re
Arroyo, 988 S.W.2d 737, 738-39 (Tex. 1998).  Because Uresti’s modification proceeding was
dismissed for his failure to pay court costs, his complaints arise directly from the dismissal order
and are ripe for appellate review.
            On February 13, 2010, Uresti filed an affidavit of inability to pay court costs.  We cannot
determine how many pages were incorporated into the affidavit, nor can we ascertain whether it
was properly executed, because only the first page appears in the clerk’s record.  Uresti alleged
that he was unemployed, without sufficient funds to pay court costs, owned no real estate, stocks,
bonds, life insurance policies, or other property.  He was unable to borrow the money and had no
other sources of income.  A contest was filed by Dinah Gaines, a staff attorney for the Bexar
County Civil District Courts.  The contest stated:
The District Judge Presiding, on behalf of the Judges and the other officers


 which
are entitled or may be entitled to fees or costs of Court, movant in the above
entitled and numbered cause hereby contests the Affidavit of Inability to Pay
Costs filed by ALAN URESTI herein, and moves the court to require ALAN
URESTI to give good and ample security to cover costs of this action.  

            Rule 145 governs affidavits of indigence.  Tex.R.Civ.P. 145.  Subsections (c) and (d)
provide that the defendant or the clerk may contest an affidavit that is not accompanied by an
IOLTA


 certificate which explains that the party is represented by an attorney who is providing
free legal services without contingency because of the party’s indigence and the attorney is
providing services either directly or by referral from a program funded by the IOLTA program. 
Because Uresti averred that he was not being assisted in any way by an attorney, the IOLTA
prohibition against contests does not apply.
            A hearing on the motion was conducted on March 25, 2010.  Gaines announced that she
represented the county and that she had filed a contest to the affidavit on behalf of the district
clerk’s office and anybody interested in court costs. Uresti did not challenge her announcement
or otherwise complain that the contest had been filed on behalf of the judges rather than the
district clerk.  
            Uresti then offered his own evidence to the court:
Let the record show that Exhibit 1 of my amended affidavit


 of inability clearly
shows that I am receiving government entitlement, therefore the contest is moot.

.          .          .
 
That means a party receiving governmental entitlement based on indigency shall
not be required to pay court costs.  . . .  The Court must comply with the Texas
statutes and the Texas Rules of Civil Procedure Rule 145, otherwise the Court is
violating my civil rights under Federal Chapter 42, Section 1983 and denying me
my rights to due process, equal rights, and its abuse of discretion would be based
on sexual discrimination pertaining to one rules [sic] for attorney and mothers and
another discriminating rules [sic] for pro se fathers. 

Gaines then responded that the amended affidavit did not affirmatively state that Uresti was
receiving food stamps.  Instead, “[h]e states I will be applying for government assistance in the
form of Medicaid and food stamps because of my indigent state of life.”  [Emphasis added].  She
also challenged that the exhibit was not incorporated into the affidavit, was not sworn to, and was
not proper evidence of indigence.  Uresti offered no further evidence and Gaines began cross-examination.  Uresti testified that he lived with his mother on McCauley street and denied
owning any property on Menefee Boulevard.  He admitted inheriting the Menefee property from
his father.  The will and Order Admitting Will to Probate as Muniment of Title were admitted
into evidence without objection.   Uresti testified that his current driver’s license reflected his
address as McCauley but admitted that the former license which had expired July 31, 2009,
reflected the Menefee property as his home address.   When asked, Uresti claimed he had no idea
who resided at 1634 Menefee or whether anyone was living there at all.   He admitted selling the
home to “Tony something or other.”   He did not recall the name, the date of sale, or the sales
price.
Q: Now, Mr. Uresti, who pays the property taxes on 1634 Menefee?
A.  I don’t know, whoever.  I guess Tony.
Q: And is Tony related to you?
A: No, he is not.
Q: Who is John Anthony Romo?
A: I have no idea.
Gaines then introduced a child support order entered on July 28, 2009, which indicated Uresti’s
address as 1634 Menefee.
            Uresti later testified that he was not disabled, attended school part-time, had previously
worked in construction, but was not currently employed.   The previous year he had earned
$8,000.   He was looking for a job but had only begun exploring employment opportunities two
weeks prior.   He continued to deny ownership of the Menefee property even after the court
admitted a release and waiver of vendor’s lien executed by Uresti’s mother as lienholder which
recited that, “[t]he Lienholder acknowledges that the aforementioned property was deeded to
Alan Uresti through the Will and Last Testament of Albert Rene Uresti and this Release and
Waiver of Vendor’s Lien also applies to Alan Uresti who has completed payment of the . . . Note
of even date in the principal amount of $15,000 . . . .”  The trial court then struck the affidavit of
inability and ordered Uresti pay the court costs of $612 before proceeding in the case.  This
requirement is consistent with Rule 145(d) which mandates that no further legal action may be
taken by the party until payment of costs or upon leave of court.  Tex.R.Civ.P. 145(d).  In its
written order, the trial court found that Uresti was able to afford costs.
            On April 26, 2010, Uresti filed a motion for reconsideration, in which he challenged the
ability of the judges to file a contest, and attached an exhibit reflecting that his household was
eligible for food stamps for the period of March through June of 2010.  According to the clerk’s
record, the motion was set for hearing on May 11, 2010.  There is no reporter’s record of a
hearing on that date.  On May 10, Uresti filed a second affidavit of indigence.   This document
offered no explanation as to why it was filed one day before the scheduled hearing on the motion
for reconsideration. 
            Against this backdrop, we consider Uresti’s specific complaints.  Issue 9 asks whether
Gaines’ conduct in filing a contest on behalf of the judges violated his rights.  We overrule Issue
9 because Uresti did not object at the initial hearing and failed to pursue a hearing on his motion
for reconsideration.  Tex.R.App.P. 33.1 (before a complaint can be a prerequisite for appellate
review, the record must show that (1) the complaint was raised before the trial court by timely
request, objection, or motion that “stated the grounds for the ruling that the complaining party
sought from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context,” (2) complied with the
requirements of the rules of procedure or evidence, and (3) that the trial court ruled or refused to
rule on the request).  This is consistent with the core principle underlying error-preservation
requirements -- the trial court should be given the opportunity to correct potential errors before
the case proceeds on appeal.  See, e.g. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999).  “[O]ur
civil rules of procedure and our decisions thereunder require a party to apprise a trial court of its
error before that error can become the basis for reversal of a judgment.”  Id.  In Issues 10 and 11,
Uresti complains that his rights were violated when Judge Berchelmann presided at the hearing
on the contest when he was a party to the contest.  We overrule both of these issues for the same
reason -- Uresti lodged no objection.  Tex.R.App.P. 33.1.
            Issues 12 and 50 opine that if Judge Berchelmann “illegally entered the contest” as a co-movant, he was constitutionally disqualified and the order is “Null, Void and Moot and/or
voidable” as a result.  Nothing in the record before us demonstrates that Judge Berchelmann was
a co-movant.  The contest filed by Gaines stated that it was filed by “[t]he District Judge
Presiding, on behalf of the Judges and the other officers which are entitled or may be entitled  to
fees or costs of Court.”  We have combed the record and can find no evidence that Judge
Berchelmann is, was, or may be entitled to court costs and Uresti points us to none.  We overrule
Issues 12 and 50.  Issue 16 is a restatement of the previous issues, asking whether “various
judges violate[d] Appellant’s rights by presiding over the Appellant’s case after having been co-Movants in the Contest to the Appellant’s Affidavit of Indigence?”  He does not identify the
other various judges nor does he direct us to evidence that any judge was entitled to court costs. 
For these reasons, we overrule Issue 16.  
            Issue 45 contends that: 
After an illegal Contest against the Appellant’s Affidavit of Indigence was entered
and granted by the Co-Movant Judges, a second Affidavit of indigence was filed
by the Appellant which was never contested.  Did the Court err when it dismissed
the Appellant’s case when there was no contest against Appellant’s Second
Affidavit of Indigence, nor a ruling on whether or not the Appellant could proceed
forma pauperus [sic]?  

In Issue 51, he restates his complaint to argue that “after Judge Berchelmann entered his illegal
and Tampered Order, was not his Order also Moot as the result of the filing Second Affidavit of
Inability [sic]?”  In short, Uresti maintains that because no contest to the second affidavit was
filed, he was entitled to proceed  as an indigent from the date of filing forward.  We reject this
argument for four reasons.
            First, the Rules of Appellate Procedure, unlike the Rules of Civil Procedure, contain a
deadline for filling a contest to an affidavit of indigence.  Tex.R.App.P. 20.1(e) (contest must be
filed on or before the date set by the clerk if the affidavit was filed in the appellate court, or
within ten days after the date the affidavit was filed if it was filed in the trial court).  The mere
filing of the second affidavit did not absolve Uresti from pursuing his motion for reconsideration
which was scheduled for hearing the very next day.  Apparently, he chose not to do so. 
Secondly, the Rules of Civil Procedure envision that the affidavit will be filed with the original
petition.  Tex.R.Civ.P. 145 (a); Baughman v. Baughman, 65 S.W.3d 309, 312 (Tex.App.--Waco
2001, pet. denied).   Third, the Rules of Civil Procedure do not contemplate the sequential or
successive filing of affidavits of indigence.  We can envision the tribulation and turmoil trial
courts would endure if a party, whom a trial court had already found not to be indigent, engaged
in the filing of repetitive motions.   Fourth, since there was no specific deadline for filing a
contest, one could be filed up until the date of the next regularly scheduled hearing. 
Tex.R.Civ.R. 145(d)(if the court finds at the first regular hearing that the party is able to afford
costs, the party must pay them).  The next regular hearing was scheduled for May 11 and the
subject was Uresti’s motion for reconsideration.  For whatever reason, and it was Uresti’s
responsibility to secure a hearing, it did not take place.  For these reasons, we overrule Issues 45
and 51. 
            Finally in Issue 46, Uresti complains that Judge Martha Tanner failed to recognize that
while Appellant was confined in jail, he was obviously without financial resources and therefore
his second affidavit of indigence was facially valid.  We reiterate that it was filed on May 10. 
The case was set for a jury trial on May 17 and was dismissed on that day (1) because Uresti
failed to appear, and (2) because he had failed to pay court costs as previously ordered. 
Throughout his brief, Uresti insists that he failed to appear because he was in jail.


  The record
does contain a child support contempt criminal release order which provides that a hearing was
held on May 27, that Uresti appeared by jail video and by attorney.  The order recites:
            1.  An Arrest Warrant/Commitment Order/Capias was issued against Uresti on March 22;
            2.  It was executed on or about May 11; and
            3.  Uresti had been confined in the Bexar County Jail for 28 days.
There are obvious internal inconsistencies in this order.  If Uresti had been in jail for 28 days, he
would have been taken into custody at least by May 1.  Yet he filed his pro se second affidavit of
indigence on May 10.  That affidavit was signed and notarized on May 7.   More troublesome is
that the release order affirmatively states that Uresti was represented by counsel.  His second
affidavit averred that he had no legal representation.   In his brief, Uresti claims that he was
represented by a public defender.  His record reference relates to the release order itself which
reflects legal representation but no designation of whether counsel was court-appointed or
retained.  Thus, this document does not establish the facial validity of his indigence.  We overrule
Issue 46.
DISMISSAL FOR WANT OF PROSECUTION
            Finally, in Issues 34, 45, 46, 52, 53, and 54, Uresti challenges the trial court’s dismissal of
his motion to modify for want of prosecution.  He directs us to opinions from the 8th Circuit
Court of Appeals, which are not binding on this court, as well as two United States Supreme
Court cases holding pro se litigants to less stringent standards than formal pleadings drafted by
lawyers.  See Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982),
citing Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1982).  His reliance is
misplaced, however, because these opinions only address whether a pro se inmate adequately
stated a federal cause of action for mistreatment during incarceration.  They have no bearing on
the challenges Uresti brings in this court.
            Our review is guided by Rule 38.1(i), which requires that an appellant's brief contain “a
clear and concise argument for the contentions made, with appropriate citations to authorities and
to the record.”  Tex.R.App.P. 38.1(i).  Although appellate courts liberally construe briefs by pro
se litigants, we must hold them to the same standards as licensed attorneys and require them to
comply with all applicable laws and rules of procedure.  Stewart v. El Paso County Sheriff’s
Department, 324 S.W.3d 321, 323 (Tex.App.--El Paso 2010, pet. denied), citing Sterner v.
Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989).  When a party fails to cite to the
record or to legal authority in their brief, nothing is presented for review.  Republic Underwriters
Insurance Company v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004); Stewart, 324 S.W.3d at
323.
            Because Uresti has failed to comply with Rule 38.1(i) of the Texas Rules of Appellate
Procedure, we overrule Issues 34, 45, 46, 52, 53, and 54 as inadequately briefed.  We pause to
note, however, that the dismissal order was valid on the basis of Uresti’s failure to pay costs.  We
do not address his allegation that he was incarcerated and could not appear at trial.


  The
judgment of the trial court is affirmed.

January 25, 2011                                                         
                                                                                    ANN CRAWFORD McCLURE, Chief
Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
