                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00249-CV

MILTON L. GARDNER,
                                                             Appellant
v.

KIMBERLY REINDOLLAR,
                                                             Appellee


                            From the 77th District Court
                             Limestone County, Texas
                              Trial Court No. 30,200-A


                           MEMORANDUM OPINION


       Milton L. Gardner appeals the trial court’s final protective order issued against

Gardner and for the protection of Kimberly M. Reindollar. Because the trial court did

not err in issuing the protective order, we affirm the trial court’s judgment.

       Initially we note that Gardner, who is representing himself on appeal, presents a

rambling 22 page brief from which it is difficult to determine what issues he complains

about on appeal. The Court did not grant a motion to dismiss the appeal for fatally
defective briefing and instead, instructed Reindollar to make a good faith effort to

respond to the arguments of Gardner. Reindollar has complied with that instruction.

       We gave Gardner time to respond to Reindollar’s brief and to supplement

Gardner’s issues which Reindollar contended were inadequately briefed. See Gardner v.

Reindollar, No. 10-13-00249-CV (Tex. App.—Waco Jan. 16, 2014, order). We did not give

Gardner permission to raise additional issues in his response. Id. Gardner filed a 44

page response to Reindollar’s brief. We address the issues we believe Gardner has

raised including those identified and responded to by Reindollar and further clarified

by Gardner’s response.     We do not, however, address the additional issues raised by

Gardner in his response. See TEX. R. APP. P. 38.7; 10TH TEX. APP. (WACO) LOC. R. 12.

       Gardner first argues that the trial court erred in not appointing an attorney to

represent him at the protective order hearing. Gardner does not have the automatic

right to appointment of counsel in this case because it is a civil protective order

proceeding in which Reindollar sought to have Gardner restrained but not imprisoned.

See Aguilar v. Aguilar, No. 02-11-00370-CV, 2012 Tex. App. LEXIS 10600, *10 (Tex.

App.—Fort Worth Dec. 21, 2012, no pet.) (mem. op.) (protective order recipient not

entitled to appointed counsel); Lopez v. State, No. 12-02-00380-CV, 2003 Tex. App. LEXIS

10788, *8 (Tex. App.—Tyler Dec. 23, 2003, pet. denied) (mem. op.) (same). See also

Gibson v. Tolbert, 102 S.W.3d 710, 712-713 (Tex. 2003); Travelers Indem. Co. v. Mayfield, 923

S.W.2d 590, 594 (Tex. 1996) (“…we have never held that a civil litigant must be


Gardner v. Reindollar                                                                  Page 2
represented by counsel in order for a court to carry on its essential, constitutional

function.”). Gardner’s first issue is overruled.

       Gardner next contends that his 6th Amendment right to confront witnesses was

violated when the trial court sustained Reindollar’s objection to Gardner’s question to

Reindollar about Reindollar’s past drug use. Specifically, after Reindollar admitted on

cross-examination to a problem with drug use in the past, Gardner wanted to ask what

type of drugs she used. The State objected to the relevance of the question. The trial

court sustained the objection; but informed Gardner that if the question pertained to a

recent timeframe, he would allow it. Gardner did not present a Confrontation Clause

argument to the trial court; thus, he failed to preserve this issue for our review. See TEX.

R. APP. P. 33.1(a)(1); see Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004)

(overruling appellant's constitutional confrontation clause issues because he did not

preserve issues related to Confrontation Clause at trial).

       Further, Gardner informed the trial court that he actually wanted to show that

both he and Reindollar had an addiction to “Norco 10s.” Gardner was permitted to ask

Reindollar about an addiction to “Norco 10s,” but instead, he asked her whether “all of

this” was fabricated so that she could receive a prescription “of Norcos.” Gardner

received all of the relief he requested. See TEX. R. APP. P. 44.1(a) (“No judgment may be

reversed on appeal on the ground that the trial court made an error of law unless the

court of appeals concludes that the error complained of:         (1) probably caused the


Gardner v. Reindollar                                                                 Page 3
rendition of an improper judgment; or (2) probably prevented the appellant from

properly presenting the case to the court of appeals.”). His second issue is overruled.

       Gardner also complains that the trial court erred by considering hearsay

testimony. Gardner made no objection to any testimony at the hearing on the protective

order. Further, it is difficult to tell from Gardner’s brief what specific testimony he

contends was inadmissible hearsay. See TEX. R. CIV. P. 802. Much of what he discusses

in his brief was admissible under other rules or exceptions to the general hearsay rule.

Finally, Gardner essentially argues the trial court erred in believing Reindollar’s

testimony. The trial court, as the finder of fact, is the exclusive judge of the credibility

of the witnesses and the weight to be given their testimony. See City of Keller v. Wilson,

168 S.W.3d 802, 819 (Tex. 2005). Thus, Gardner’s third issue is not preserved and is

overruled. See TEX. R. APP. P. 33.1(a)(1).

       Gardner further complains that the trial court erred in finding Gardner and

Reindollar had a dating or family relationship because Reindollar had said Gardner was

Reindollar’s “ex-boyfriend.” From all the testimony on the topic, it is clear that Gardner

and Reindollar had a prior relationship and the characterization of Gardner at any point

in time as an “ex-boyfriend” does not mean that, as a matter of law, they were not

within a “dating or family relationship” within the meaning of the statute. See TEX.

FAM. CODE ANN. § 71.0021 (West Supp. 2013). Further, Gardner provides no citations to

case authority to support his argument under this issue.              Thus, this issue is


Gardner v. Reindollar                                                                 Page 4
inadequately briefed and presents nothing for review.         See TEX. R. APP. P. 38.1(i).

Gardner’s fourth issue is overruled.

       Gardner next argues that the trial court erred in failing to grant Gardner’s motion

for new trial based on newly discovered evidence. Gardner would be entitled to have

his motion for new trial granted if (1) the newly discovered evidence was unknown to

him at the time of trial; (2) his failure to discover the new evidence was not due to his

lack of due diligence; (3) the new evidence is admissible and not merely cumulative,

corroborative, collateral, or impeaching; and (4) the new evidence is probably true and

will probably bring about a different result in a new trial. Wallace v. State, 106 S.W.3d

103, 108 (Tex. Crim. App. 2003). The trial court has discretion to decide whether to

grant a new trial based on newly discovered evidence, and its ruling will not be

reversed absent an abuse of discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App.

2002). A trial court abuses its discretion in denying a motion for new trial only when no

reasonable view of the record could support the trial court's ruling. Holden v. State, 201

S.W.3d 761, 763 (Tex. Crim. App. 2006).

       Gardner provides no relevant case authority to support this issue. Further, the

evidence referred to in his brief is not “newly discovered” evidence as it is the evidence

of the condition of Reindollar’s body (cuts, bruises, etc.) and the cause thereof. This was

the issue at trial. Thus, the trial court did not abuse its discretion in not granting

Gardner’s motion for new trial. Gardner’s fifth issue is overruled.


Gardner v. Reindollar                                                                Page 5
         Lastly, Gardner argues that the trial court erred in considering as evidence

Reindollar’s affidavit in support of the application for protective order. The affidavit

was attached to the application for protective order and was necessary for Reindollar to

receive a temporary ex parte protective order. See TEX. FAM. CODE ANN. § 82.009 (West

Supp. 2013). It was not marked, offered, or admitted into evidence, and there is nothing

to suggest that the trial court relied upon it in any way in making its judgment.

Gardner’s sixth issue is overruled.

         Having overruled each issue on appeal, we affirm the trial court’s final protective

order.

         Absent a specific exemption, the Clerk of the Court must collect filing fees at the

time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP.

P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R.

APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b); 51.208; §

51.941(a) (West 2013). Under these circumstances, we suspend the rule and order the

Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2. The write-off of

the fees from the accounts receivable of the Court in no way eliminates or reduces the

fees owed.



                                           TOM GRAY
                                           Chief Justice




Gardner v. Reindollar                                                                 Page 6
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 27, 2014
[CV06]




Gardner v. Reindollar                        Page 7
