
NO. 07-02-0341-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 20, 2003

______________________________


MARGARITO MARTINEZ, APPELLANT

V.

CHERRY AVENUE MOBILE HOME PARK, APPELLEE


_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

NO. 89,815-1; HONORABLE W. F. ROBERTS, JUDGE

_______________________________

OPINION (1)

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


	By this appeal, Margarito Martinez challenges the judgment of the trial court
awarding Cherry Avenue Mobile Home Park immediate possession of the premises at
issue, money damages, court costs, and attorney's fees in the amount of $1,500.00.  By
his first issue, Martinez contends the trial court erred in granting judgment and in
overruling his motion for new trial because he was not provided a meaningful opportunity
to be heard, to present evidence on his behalf, to confront witnesses, or to argue his legal
position in violation of his state and federal constitutional rights.  By his second issue,
Martinez alleges the trial court erred in denying his motion for new trial after he presented
evidence of: (1) his lack of English comprehension; and (2) a meritorious defense.  Such
denial, Martinez maintains, constitutes fundamental error and denial of due process
because Cherry Avenue failed to rebut his claims by competent evidence.  Based upon the
rationale expressed herein, we affirm.
	In June of 2001, Martinez entered into a written lease with Cherry Avenue to rent
a duplex for $375 per month.  The original term of the lease was for slightly less than six
months, but provided for a month-to-month lease thereafter.  On April 6, 2002, Cherry
Avenue provided a written notice of its intent to evict Martinez on the basis of non-payment
of rent.  The eviction notice provided Martinez three days to vacate the premises.  Five
days later, Cherry Avenue filed an affidavit for forcible detainer in Precinct One Potter
County Justice of the Peace Court.  When Martinez failed to appear for the hearing on the
forcible detainer, the court entered a default judgment in favor of Cherry Avenue for back
rent and possession of the premises.  
	Martinez posted an appeal bond, and the case was placed upon the Potter County
Court at Law Number One docket and set for trial on May 10, 2002.  In a handwritten pro
se general denial filed on May 7, 2001, Martinez requested the court to "be patient w/me
as I am not a Texas resident and English is hard for me."  He concluded the letter by
stating, "[I] will bring my own translator."  Cherry Avenue filed a supplemental petition
seeking the award of attorney's fees and additional damages.  
	At a bench trial, the court heard evidence from Cherry Avenue, by and through its
attorney, and Martinez, who appeared pro se along with his estranged wife, who acted as
a translator.  At the conclusion of the evidence, the trial court awarded Cherry Avenue
immediate possession of the duplex, money damages, and attorney's fees.  Martinez's
attorney, hired after trial, filed a motion for new trial, which was overruled by operation of
law.  In response to Martinez's request, the trial court entered the following findings of fact:
	1.  	Defendant was over one month in arrears in rent on the date of the
hearing.

	2.  	Plaintiff was entitled via lease contract to reasonable attorney fees,
damages and court costs.

	3.  	Reasonable attorney fees in this case were $1,500.00.

	4.  	Rent was owed in the amount of $375.00 by Defendant at the time of
hearing, plus late fees in the amount of $55.00 as well as an unpaid
electric bill in the amount of $18.75.
 
	5. 	Defendant owes Plaintiff additional accrued rent in the amount of
$125.00.


	Findings of fact in a case tried to the court have the same force and dignity as a
jury's verdict upon questions.  Anderson v. City of Seven Points, 806 S.W.2d 791, 794
(Tex. 1991).  Findings of fact are reviewable for legal and factual sufficiency of the
evidence by the same standards applicable in the review of the sufficiency of the evidence
to support a jury finding.  Hatteberg v. Hatteberg, 933 S.W.2d 522, 529 (Tex.App.--Houston [1st Dist] 1994, no writ).  Because the findings of fact of the trial court are not
challenged on appeal, however, we must accept them as conclusive.  See Looney v.
Gibraltar Sav. Ass'n, 695 S.W.2d 336, 340 (Tex.App.--Amarillo 1985, no writ).
	By his first issue, Martinez contends the trial court erred in overruling his motion for
new trial and in granting judgment because he was not provided a meaningful opportunity
to be heard, to present evidence, to confront witnesses or to argue his position in violation
of his state and federal constitutional rights. (2)  We disagree.
	To preserve a complaint for review on appeal, the action or omission alleged as
error by the trial court must have been the basis of a timely request, objection, or motion
specifying the action the trial court was requested to take, or to forebear from taking, and
an adverse ruling must have been obtained.  See Tex. R. App.  P. 33.1(a); see also In re
United Supermarkets, Inc., 36 S.W.3d 619, 622 (Tex.App.--Amarillo 2000, no pet.).  This
rule also applies to the preservation of a constitutional claim of denial of due process. 
State Bar of Texas v. Leighton, 956 S.W.2d 667, 671 (Tex.App.--San Antonio 1997), pet.
denied, 964 S.W.2d 944 (Tex. 1998).  Because the record does not show Martinez's
contention was timely presented to the trial court, the issue presents nothing for review.
	Our review of the record reveals that during Cherry Avenue's presentation of
evidence, Ms. Martinez was permitted to cross examine Cherry Avenue's only witness. (3) 
After sustaining Cherry Avenue's objection to one of her questions, the trial court
remarked, "You should have hired a lawyer."  The record also shows that after Cherry
Avenue rested, Martinez's wife was sworn and testified as a witness.  Among other things,
she averred, "[w]e are living in a motel and it's costing us daily, $40.00 a day.  We don't
have a problem with the eviction.  We're happy.  We're going.  We want a week to finish
taking the rest of the stuff out."
	In his brief, Martinez directs us to no reference in the record demonstrating his
contention that he was not provided an opportunity to be heard.  Indeed, our review of the
record demonstrates the contrary.  After the court asked Ms. Martinez if she wanted to call
any witnesses, she announced she desired to testify, but made no mention of calling
Martinez.   Martinez had the right to appear and defend the action "either in person or by
an attorney of the Court." Tex. R. Civ. P. 7.  Having waived the right to appear by an
attorney, however, he is held to the same standards as a licensed attorney.  See Holt v.
F.F. Enterprises, 990 S.W.2d 756, 759 (Tex.App.--Amarillo 1998, pet. denied).  
	By asserting his opportunity to be heard should have been tailored to his capacity
and circumstances, and referring to the trial as a "sham," Martinez implies the trial court
erred in failing to appoint an interpreter sua sponte.  Public policy, however, demands a
judge try a case with absolute impartiality, and not act as an advocate for any party. 
Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex.App.--Houston [14th Dist.] 1997, pet. denied). 
We conclude, therefore, the trial court did not abuse its discretion in denying Martinez's
motion for new trial.  See Kirk v. Farmers Aerial Spraying Service, Inc., 496 S.W.2d 739,
743 (Tex.Civ.App.--Amarillo 1973, no writ).  Martinez's first issue is overruled.
	By his second his issue, Martinez asserts the trial court erred in denying his motion
for new trial because he adequately demonstrated a lack of English skills along with a
meritorious defense.  Such denial, he maintains, constitutes fundamental error and a
denial of due process.   We disagree.
	Conceding this issue presents a question of first impression in a civil case, Martinez
cites Rule 183 of the Rules of Civil Procedure for the proposition that the trial court should
have appointed an interpreter for him.  However, Martinez does not cite us to any
reference in the record where a motion for the appointment of an interpreter was presented
to the trial court, or where any complaint about the trial court's failure to appoint an
interpreter was preserved for our review.  See Tex. R. App. P. 33.1(a); see also In re
United Supermarkets, Inc., 36 S.W.3d at 622.  Furthermore, his status as a pro se litigant
does not excuse his failure to preserve the complaint for consideration on appeal.  See
Holt, 990 S.W.2d at 759.
	Finally, in his pro se written answer to the court, Martinez stated he would provide
his own interpreter.  The reporter's record demonstrates his bilingual wife examined the
witness and testified as a witness. (4)  Accordingly, we conclude the trial court did not abuse
its discretion in denying the motion for new trial.  See Kirk, 496 S.W.2d at 743.  Martinez's
second issue is overruled. 
	Accordingly, the judgment of the trial court is affirmed.

						Don H. Reavis
						    Justice




 
 
1. Tex.  R.  App.  P.  47.2(a).
2. To the extent appellant's argument under this issue is grounded upon his claimed
inability to speak and understand the English language, that argument will be considered
in our analysis of his second issue.   
3. Our review of the record reveals Ms. Martinez is bilingual.
4.  Cherry Avenue did not request that a neutral interpreter be appointed.


he purported expert to merely state that the methodology has been accepted and is
reliable.  Id. at 559-60.   Rather, the proponent must illustrate same through substantive
evidence, id., sufficient to allow the trial court to "evaluate the methods, analysis, and
principles relied upon in reaching the opinion."  Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713, 725-26 (Tex. 1998), quoting, Watkins v. Telsmith, Inc., 121 F.3d 984, 991
(5th Cir. 1997).   And, while a myriad of factors have been mentioned as pertinent in
assessing reliability, see, E.I. du Pont de Memours & Co. v. Robinson, 923 S.W.2d at 557
(listing six and stating that the list is not exclusive), common sense demands that the
evidence proffered to show reliability include the actual methods and principles being
debated.  Indeed, a trial court can hardly determine if a supposed theory, methodology or
principle is reliable if evidence of the particular theory, method, or principle is withheld
from it.  And, therein lies the problem at bar.
	In describing the Abel Assessment, Mack mentions two components.  They consist
of a supposed "objective" aspect involving reaction time to sexually laced pictures and a
subjective aspect involving self-analysis through the completion of a questionnaire.   Also
discussed is what the person administering the test does with it once it is completed by the
subject; the raw data is sent to Dr. Abel in Atlanta, Georgia. (4)  Mack then describes what
he does with the information returned by Dr. Abel.  Yet, the sum and substance of
evidence describing what Dr. Abel does to the data he receives consists of Mack's
testifying that the doctor applies some "formulas" to it and plots the results on graphs.  This
is of particular import because it is the sum of Abel's work which is then interpreted by
individuals such as Mack to derive the subject's sexual deviancy and dangerousness via
the "danger registry" and like concepts.  
	In short, of what the formulas applied by Abel consist, how they were derived, and
whether they have ever been subjected to analysis or testing goes utterly unmentioned by
Mack or anyone else.  For all we know, they and their components could be
mathematically based, founded upon indisputable empirical research, or simply the magic
of young Harry Potters' mixing potions at the Hogwarts School of Witchcraft and Wizardry. (5)
 
Again, Mack simply interpreted the "information" returned from Atlanta.  How that
undeniably pivotal "information" was contrived or applied by those in Atlanta remains a
mystery, given the record before us and the trial court.
	Nor did the CPS proffer any evidence explaining the "danger registry" and like
concepts utilized by Mack to conclude that Marshall and the youths around him were at
"significant" risk.  What they were, how they were contrived, and whether they were
subjected to critical analysis are also subjects completely left to the imagination of the
court.  Maybe they too have indisputable scientific basis.  Or, maybe they simply
accompanied the prophesies of Macbeth's demise floating from the cauldron of the three
blind witches. (6)  We do not know.  Nor was the trial court provided with evidence allowing
it to make that determination. (7) 
	Simply put, the gatekeeper at bar could not "evaluate the methods, analysis, and
principles relied upon [by Mack] in reaching [his] opinion" about Marshall Keys without
evidence of the various crucial methods and principles underlying that opinion and their
accuracy.  And, by admitting the alleged expert evidence without that evidence, the trial
court abused its discretion. (8) 
	Having found error, we next determine its harm, if any.  And, in doing so, we cannot
deny the emotional effect evidence of pedophilic behavior has on rational human beings. 
Nor can we deny the emotive effect upon a sane jury of evidence illustrating that the
children of the supposed pedophile were at "significant" risk.  And, it was this theme of
pedophilia and risk to children that comprised a major basis for the relief sought by the
CPS.  That this is undoubtedly true is exemplified by the agencies opening and closing
argument.  During the former, it told the jurors about how the Abel Assessment would
establish Marshall to be sexually deviant while in its summation it urged how it proved he
posed "a significant risk of sexual abuse to these three kids . . . ." 
	And, that the evidence in question had impact upon Rose Keys is similarly
unquestionable.  Admittedly, Mack said nothing about her having undergone Abel
Assessment.  Nevertheless, the CPS used the assessment of Marshall to facilitate their
argument that:
	[w]hat we showed you and what we told you that we would show you is these
children are in danger.  They are in danger of sexual abuse by Mr. Keys and
Mrs. Keys, one, because he is a perpetrator that is untreated and denies
doing anything wrong, and she because she doesn't believe he did anything
wrong and she never took any steps to protect her kids from him and
wouldn't today.

(Emphasis added).  Simply put, the contention that Rose is bad because she would not
today protect her children from the sexual predations of Marshall would have no basis
without evidence of Marshall's present and future sexual deviancy.  And, it was the Abel
Assessment, as discussed by Mack, which provided the evidence.   At the very least, jurors
could reasonably surmise from the testimony of Mack that because Marshall posed a
significant risk of sexually preying on his children and Rose would do nothing about it, she
too 1) knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endangered their physical or emotional well-being or 2) engaged in
conduct or knowingly placed the children with persons who engaged in conduct which
endangered their physical or emotional well-being.  
	In sum, reasonable minds could debate whether a jury would have voted to
terminate the parental rights of the Keys had the alleged expert testimony at issue been
excluded.  Yet, we have no doubt that using the Abel Assessment to categorize Marshall
as all but a pedophile who posed "significant" risk to his children (a risk his wife
supposedly would not protect them against) assured the outcome desired by the CPS. 
See Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 737-38
(Tex. App.--Houston [14th Dist.] 2000, no pet.) (holding that an appellant suffers reversible
harm when the judgment turns on improperly admitted evidence).   So, the inadmissible
evidence before us probably caused the rendition of the judgment at bar and resulted in
the Keys suffering harm.  See Tex. R. App. Proc. 44.1(a)(1) (stating that error warrants
reversal when it probably caused the rendition of an improper judgment).   
	Having sustained the Keys' point regarding Mack's expert testimony, we need not
address whether the trial court erred in admitting evidence of Marshall's 1977 conviction. 
Instead, we reverse the judgment and remand the cause for further proceedings.   

								Brian Quinn
								   Justice


Publish.
1. The State offered no evidence indicating that Marshall Keys ever sexually assaulted a male
child, adolescent or adult.  He had, however, sexually assaulted his minor daughter in 1977.
2. Mack defined an adolescent as a minor between the ages of 13 to 17.
3. His words were: "[n]ow, if I'm not able to say that's pedophilic, I won't say its pedophilic, but it's
not a situational offender . . . [t]hose are primary sexual interests."
4. Mack testified that he did not administer the test to Marshall Keys.   Nor could he say with certainty
that the results which he reviewed were actually those of Keys, though he did indicate that the number
assigned to the Keys test comported with the results he analyzed.
5. J. K. Rowling, Harry Potter and the Sorcerer's Stone (1998).
6. William Shakespeare, Macbeth, act 4, sc. 1.
7. Indeed, that those who developed the Abel Assessment believe adult heterosexual males who show
sexual interest in adolescent females and adult homosexual males who express interest in adolescent males
are normal or non-deviant (as Mack so testified) makes the explanation of their methodology and formulas
all the more important.      
8. In so holding, we do not categorize the Abel Assessment as inadmissible junk science.  We simply
conclude that the CPS failed to satisfy Robinson and its progeny in offering testimony about how it illustrated
that Marshall posed a "significant" risk of sexually abusing his children.  
