                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00271-CV


                    IN THE ESTATE OF JESSIE GRAY, DECEASED

                             On Appeal from the County Court
                                    Bailey County, Texas
                 Trial Court No. 2556, Honorable Sherri Harrison, Presiding

                                      June 10, 2014

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Appellant, the Estate of Jessie Gray, appeals the decision of the County Court of

Bailey County, Texas, to grant to appellee, Celia Gray, a homestead exemption in the

residence occupied by Celia and the decedent prior to his death. The Estate raises

three issues on appeal. We will affirm.


                          Factual and Procedural Background


       The decedent was married to Celia Gray at the time of his death. At that time, he

and Celia resided in the home that is the subject of this dispute. Prior to his marriage to

Celia, decedent was married to Phebe Gray.          During that marriage, decedent and
Phebe resided in the home that is the subject of this dispute. The allegations of both

the Estate and Celia are that decedent and Phebe executed a trust and caused the

property at issue to be transferred to an inter vivos trust. The parties likewise agree that

the children of decedent and Phebe are the beneficiaries of the trust and that decedent

and Phebe continued to live in the residence after the transfer.


       Upon the death of decedent, Celia continued to live in the residence until asked

to move by the beneficiaries. Subsequently, Celia filed an application for an allowance

in lieu of exempt property pursuant to Texas Probate Code, section 273. See TEX.

PROB. CODE ANN. § 273 (West Supp. 2013) (repealed and currently codified as TEX.

EST. CODE ANN. § 353.053 (West 2013) (effective Jan. 1, 2014)).


       Initially, we note that the hearing on the application for an allowance was not

recorded by a court reporter and we have no record of that proceeding to examine. At

the hearing on the application, the trial court, instead of acting upon the application for

an allowance in lieu of exempt property, appears to have sua sponte ordered delivery of

the homestead to the surviving spouse, Celia. The Estate filed a motion for new trial

that challenges the sufficiency of the evidence to support the trial court’s action. The

trial court overruled the Estate’s motion for new trial by order entered July 30, 2012, and

this appeal followed.


       In its brief, the Estate alleges three grounds for reversal of the trial court’s ruling.

First, the trial court entered its order without first providing proper notice to the Estate of

the nature and scope of the hearing and this lack of notice violated the Estate’s right to

due process under the United States Constitution and the Constitution of the State of



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Texas. Second, the Estate contends the evidence was legally and factually insufficient.

Finally, the Estate contends that the trial court abused its discretion by ordering delivery

of the homestead to Celia. We will affirm.


                                   Due Process Claim


       Before we can address the Estate’s issue on due process grounds, we must first

examine whether this complaint has been preserved for appeal.           In re M.M.L., 241

S.W.3d 546, 552 (Tex. App.—Amarillo 2006, pet. denied). (holding that, “[p]reservation

of error is a systemic requirement that a first-level appellate court should review on its

own motion.”) While we acknowledge that the trial court is alleged to have acted sua

sponte in the granting of the homestead rights to Celia, this does not necessarily

alleviate the Estate of its duty to preserve this issue for appellate purposes. See TEX. R.

APP. P. 33.1(a). This is so because the purpose of the rule is to allow the trial court the

opportunity to correct any perceived error. See Lewis v. Tex. Employer’s Ins. Ass’n,

151 Tex. 95, 246 S.W.2d 599, 601 (Tex. 1952).


       A review of the clerk’s record reveals that there was no motion for continuance

proffered by the Estate at the time the trial court embarked upon the alleged sua sponte

consideration of the homestead issue. More importantly, for our purposes, the motion

for new trial filed by the Estate simply alleges insufficient evidence as a ground for a

new trial. Our review of the limited record before us demonstrates that the trial court

was never presented with the allegation of denial of due process. See id.


       To the extent the Estate may be claiming that the fact that the allegation of error

is of a constitutional dimension and therefore is, or should be, exempt from the


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preservation rules, the case law is against it. See In re B.L.D., 113 S.W.3d 340, 354

(Tex. 2003) (holding that, as a general rule, due process does not mandate that

appellate courts review unpreserved complaints of charge error). The analysis therein

provided has application to the facts before this Court.


        In the final analysis, the trial court has not had this issue presented to it.

Accordingly, if there was error, the trial court was not given the opportunity to correct it.

The result of this action is that the issue has not been preserved for appellate review.

See TEX. R. APP. P. 33.1(a).1 The Estate’s first issue is overruled.


                                     Sufficiency of the Evidence


        The Estate next contends that the evidence was legally and factually insufficient.

The Estate fails to specify in what respect the evidence is insufficient. However, the

only fair reading of the Estate’s sufficiency issue is that it contests the sufficiency of the

evidence to support the finding of the trial court granting Celia possession of the

homestead.        As noted previously, there was no recording of the hearing and,

accordingly, there is no statement of facts for our review. Additionally, there was no

request for findings of fact and conclusions of law. In such a situation, we presume all

facts necessary to support the judgment have been found by the trier of fact. See Fults

v. Benincasa, No. 07-97-0426-CV, 1999 Tex. App. LEXIS 4193, at *4 (Tex. App.—

Amarillo June 2, 1999, pet. denied) (citing Roberson v. Robinson, 768 S.W.2d 280, 281

(Tex. 1989)). The only exception to this rule is when an appellant presents fundamental


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           Even were we to decide that the Estate’s due process issue was preserved for appeal, the
“Application for Allowance In Lieu of Exempt Property,” the pleading before the trial court, clearly sets out
that the Estate was put on notice that Celia contended that Jessie had a homestead interest in the
residence the couple occupied prior to Jessie’s death.

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error. Id. (citing Trevino & Gonzalez Co. v. R. F. Muller Co., 949 S.W.2d 39, 41 (Tex.

App.—San Antonio 1997, no writ)). The Estate’s claim of insufficiency of the evidence

is not a claim of fundamental error. The Estate’s second issue is overruled.


                     Abuse of Discretion By The Trial Court in Entering Order


         The Estate’s third issue complains that the trial court abused its discretion by

entering the order to set aside the residence as a homestead for Celia. The Estate’s

brief goes through a detailed explanation of the factual background of the execution of

the inter vivos trust and, ultimately, of the deeds to the trust and then to the children, as

beneficiaries. In the final analysis, what the Estate is complaining about appears to be

the evidentiary underpinning of the trial court’s order. Specifically, the Estate points out

that the deeds were delivered to the trust beneficiaries prior to Jessie’s marriage to

Celia.    According to the Estate’s brief, the potentially defeasible interest of the

beneficiaries became indefeasible upon Phebe Gray’s death. Whether or not such a

statement is true would depend upon the terms of the trust agreement, which was not

presented to the trial court and, therefore, is not before us. Again, we are faced with a

situation where the record has not been sufficiently developed to allow us to make the

determination that the Estate asks us to make. Instead of assuming what the terms of

the trust are, we must assume the record before us supports the trial court’s

determination, in the absence of any facts to the contrary. See Fults, 1999 Tex. App.

LEXIS 4193, at *4. Accordingly, the Estate’s third issue is overruled.




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                                       Conclusion


       Having overruled the Estate’s three issues, the trial court’s judgment is affirmed.




                                                 Mackey K. Hancock
                                                     Justice

Pirtle, J., concurring.




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