                           NUMBER 13-09-00579-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

      IN THE ESTATE OF MYRTLE MARIE BROOKS, DECEASED


              On appeal from the County Court at Law No. 2
                       of Nueces County, Texas.


                        MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Benavides
      This is a will contest case.      By seven issues, pro se appellant, Melta

Brooks-Cannon, contends the trial court erred when it:   (1) failed to recognize the last

will and testament of her grandmother, Myrtle Marie Brooks; (2) allowed jurors to hear

testimony about Myrtle‘s physical and mental capacity from a non-expert witness; (3)

allowed Melta‘s medical history and certain character evidence to be admitted into
evidence; (4) failed to provide clear instructions to the jurors regarding the jury charge;

(5) appointed a guardian ad litem; (6) allowed testimony regarding alleged undue

influence; and (7) did not accept certain medical records regarding Myrtle‘s health and

well-being into evidence. We modify the trial court‘s judgment and affirm as modified.

                                    I. BACKGROUND

       Myrtle died at the age of ninety-three in Corpus Christi, Texas.        Myrtle was

survived by two sons: Henry Clayton Brooks and Winston Gene Brooks.             After their

mother‘s death, Henry and Winston jointly filed an application to be dependent

co-administrators and for issuance of letters of dependent administration.           In the

application, Henry and Winston represented that they were Myrtle‘s only living children;

their brothers Connie O‘Neal Brooks and Bobby Joe Brooks had pre-deceased their

mother. Henry and Winston‘s motion also declared that Myrtle died without leaving a

valid will and ―owned real and personal property . . . cash, bank accounts, an automobile,

household furniture, and other personal effects of a probable value in excess of

$50,000.‖ They sought to be joint co-administrators of her estate because there were at

least two debts against the estate, including expenses for Myrtle‘s final illness.   Henry

and Winston were appointed co-administrators on October 24, 2006.

       On January 11, 2007, Melta filed a motion for new trial.         Melta is Myrtle‘s

grand-daughter; her father was the late Connie, brother of Henry and Winston.        In her

motion, Melta contended that Myrtle had executed a valid will that named Melta the sole

independent administrator of Myrtle‘s estate. Melta requested that the court set aside


                                            2
the order deeming Henry and Winston co-dependent administrators. In response to

Melta‘s motion, Henry and Winston filed a second application to be appointed dependent

co-administrators. In this second application, Henry and Winston re-urged that their

mother died intestate and argued that Melta possessed an invalid will.                                   In the

alternative, they argued that if Melta in fact possessed a valid will that it was procured

through undue influence.

       The trial court denied Melta‘s motion for new trial. However, pursuant to section

83(a) of the Texas Probate Code, the court held a jury trial to consider the will Melta

possessed, along with Henry and Winston‘s application, to determine whether Myrtle

indeed died intestate.       See TEX. PROB. CODE ANN. § 83(a) (West 2010).1 During the

trial, Henry testified that Myrtle suffered a slip-and-fall in February 2004 which partially

paralyzed the left side of her body.             Upon her doctor‘s recommendation, the family

admitted Myrtle to The Palms Center in Corpus Christi for rehabilitation and daily

assisted life care after her fall.         Myrtle was upset about this recommendation and

wanted to simply return home.                 However, she was ultimately admitted for health

reasons.



       1
           The statute provides as follows:

       If, after an application for the probate of a will or for the appointment of a general personal
       representative has been filed, and before such application has been heard, an application
       for the probate of a will of the decedent, not theretofore presented for probate, is filed, the
       court shall hear both applications together and determine what instrument, if any, should
       be admitted to probate, or whether the decedent died intestate.

TEX. PROB. CODE ANN. § 83(a) (West 2010) (emphasis added).

                                                     3
        Henry stated that he and his wife Ninfa visited his mother at The Palms daily,

because they lived in Corpus Christi.            His brother Winston lived in Harker Heights,

Texas, which was about five hours away, so Winston could not visit as often.                      Henry

soon began to worry about his mother‘s mental health when she mentioned seeing

relatives who had already died and could not remember if she had eaten on a particular

day.   He stated that they never discussed a will because Myrtle said her boys would ―do

what‘s right‖ and that her ―boys always [did] the right thing.‖ She treated all of her sons

equally.    Henry‘s wife, and Melta‘s aunt, Ninfa Salazar, corroborated this testimony.

She testified that Myrtle told her that she did not need a will because ―everything was for

her boys.‖

        Henry testified that he learned his mother had executed a will approximately eight

months before her death.         He received a phone call from Winston informing him about

the alleged will.    He was ―in awe and shock‖ about the will‘s existence and believed that

the will was his niece Melta‘s idea.           He stated that his niece Melta acted ―strange‖

toward him when she first arrived from California to visit his ailing mother at The Palms.

Shortly after that encounter, he found Melta at his mother‘s house reviewing Myrtle‘s car

ownership papers and insurance policies.                He soon became concerned about the

purpose of Melta‘s visit when he called The Palms for an update on his mother‘s health

and they refused to release information to him due to HIPAA laws. 2 Apparently, Melta



        2
          HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. Pub. L. No.
104-191, 110 Stat. 1936 (1996) (codified as amended at 42 U.S.C.A. §§ 1320d-1320d-8 (2007)). The law
provides, among other things, federal protections for personal health information held by covered entities
                                                    4
had had Myrtle sign a power of attorney which allowed only Melta and another cousin

access to Myrtle‘s medical records and denied access to anyone else.                  Henry testified

that Melta moved into his mother‘s home while Myrtle was recovering at The Palms and

that he paid for repairs to the refrigerator and water heater at his mother‘s house during

this time.     He also loaned Melta his vehicle and gave her money for food.                    After

Myrtle‘s death, Henry explained that someone from American Bank called him. The

bank representative stated that Melta was at the bank trying to liquidate Myrtle‘s account

with a power of attorney document.

        Winston testified next.        He stated that he was very close to his mother and that,

although he lived further away, he spoke to her on a daily basis and would spend long

weekends with her. He testified that she treated all of her children equally and did not

favor anyone in particular. Winston testified that his mother was progressing nicely at

The Palms until Melta visited from California.                 At that point, he stated that ―it just

snowballed downhill.‖          He stated that Palms nurses complained that Melta was

interfering with their care of Myrtle—she complained about what they were feeding

Myrtle and left constant harassing notes on a blackboard in Myrtle‘s room.               He testified

that Melta was ―hostile‖ toward him and the nursing staff—she ―scream[ed], hollered[ed]‖

and was ―belligerent.‖ He was very upset when Melta obtained the power of attorney,

which prevented him from receiving information about his mother‘s medical care.




and gives patients an array of rights with respect to that information.
                                                      5
       Winston testified that he confronted Melta about her behavior at The Palms and

said that she needed to stop being a ―paranoid schizophrenic‖ regarding Myrtle‘s care.

He was surprised when Melta responded, ―how did you find out about my medical

record?‖ Winston also discussed how he learned about Myrtle‘s will at trial:

          WINSTON:          She [Melta] calls me up and she‘s going—she‘s all—I
                            don‘t know if her meds were off or what. But she‘s
                            like, I‘m leaving here, goddamn it, and you‘re going to
                            take care of your own mother. I‘m like, what? Hold
                            on. Hold on. What are you talking about? [She
                            said] I‘m leaving and I‘m going to go get this will
                            changed back and I‘m going to put it back in you and
                            Henry‘s name. I said, wait a minute, what will?
                            Well, I have a will and I‘m going to—and then she
                            hung up.

       Winston stated that he was surprised because his mother never discussed a will

with him or his brother.   He felt ―if she would have wanted to write a will, Henry and I

would have been notified by [his] mom in some kind of way.‖ At one point, Winston also

stated that he received a call from his mother that concerned him:

       WINSTON:             She [Myrtle] calls up. It was a strange call because
                            she was on the other end of the line. She said,
                            Poochie, Melta is trying to kill me. I‘m like, what?
                            She‘s messing with my medications. I said, oh, mom.
                            I‘ll check into it.

       Winston also testified that he was disturbed one day when he arrived at his

mother‘s home after she had been released from the Palms.           His mother was home

alone with Melta.   He testified that his mother had seven to eight duragesic medicine

patches all over her body, and he accused Melta of placing them on her body. Winston

also testified that, over the years, Melta frequently called him for money.   She would say

                                             6
she was hungry, so he would wire her money via Western Union.

       Minerva Brooks, the late Connie‘s wife and Melta‘s stepmother, testified.            She

stated that Melta primarily grew up with her mother in California. Melta later moved to

Texas briefly when her father became ill with cancer. Minerva recalled that during this

time, Melta discussed being treated by a psychiatrist and would have ―split personalities‖

at times.    She left four days before her father died but later called to see if her father left

a will and if she was in the will. Minerva also claimed that Melta stole items from her

household, always needed money, and was concerned about Social Security benefits.

A neighbor, Dorothy Frances, testified that she saw Melta moving furniture and boxes

out of Myrtle‘s house while Myrtle was still being treated at The Palms.

       Sandra Larson, a licensed social worker who worked at The Palms in 2004,

testified about Myrtle‘s medical condition upon admission.                 Reviewing Myrtle‘s

admission sheet, Larsen reported that Myrtle suffered from a previous cardiovascular

accident or stroke, was paralyzed on the left side of her body, had hypertension,

osteoarthrosis, reflux sympathetic dystrophy, pleural refusion, and was constipated due

to her pain medications.       Larsen testified that she noticed some ―strong signs and

symptoms of depression‖ approximately one month after Myrtle was admitted to the

Palms.      Myrtle was also in constant pain because of her arthritis.       Larson described

Melta as ―one of the most difficult people that I have ever dealt with.‖ She stated that

several certified nurse assistants requested to be reassigned from caring for Myrtle

because they did not want to suffer Melta‘s ―abuse.‖


                                                7
        Melta testified that she grew up in California for most of her life, but lived with her

father and Myrtle in Corpus Christi at one point during high school. At the time of

Myrtle‘s death, she lived in California with her husband and children.          Melta left her

family when Myrtle allegedly called her to come and care for her at The Palms.           Melta

explained that the reason she was so direct and forthright with the caregivers at The

Palms was because they were giving sub-par care to Myrtle.          She alleged that they fed

Myrtle food to which she was allergic, failed to take her to the toilet when requested, and

did not regularly move her which led to bed sores.         Melta explained that she did not

attend Myrtle‘s funeral because no one in her family told her when or where it was to be

held.   Upon cross-examination, though, she admitted that she left for California the

same day Myrtle died.       She also admitted that she left a copy of Myrtle‘s will at a

lawyer‘s office before she left on the plane to California.

        Myrtle‘s will named Melta the sole independent executor of her estate.           Melta

was also the primary beneficiary of the will:      Myrtle bequeathed Melta her furnished

home and vehicle, valued at approximately $50,000.         Myrtle‘s only living sons received

less—Henry was left a table, chair, and lamp, while Winston was left a china cabinet.

Other relatives also received certain household items.

        The jury found that Myrtle lacked the testamentary capacity to execute a will and

that the will was procured through undue influence.      Melta then filed this appeal.




                                               8
                                        II. ANALYSIS

A.     The Last Will and Testament of Myrtle

       By her first issue, Melta argues that the trial court erred when it ―failed to

recognize the last will and testament of Myrtle Marie Brooks.‖ We construe this issue

as a challenge to the legal and factual sufficiency of the jury‘s findings that Myrtle lacked

the testamentary capacity to execute a will and that her will was procured through undue

influence.

       1.    Standard of Review and Applicable Law

       We may sustain a legal sufficiency challenge only when (1) the record discloses a

complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact; (3) the

evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence

conclusively establishes the opposite of a vital fact.   See King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 751 (Tex. 2003).        In determining whether there is legally sufficient

evidence to support the finding under review, we must consider evidence favorable to

the finding if a reasonable fact finder could and disregard evidence contrary to the finding

unless a reasonable fact finder could not.   See City of Keller v. Wilson, 168 S.W.3d 802,

807, 827 (Tex. 2005).

       In reviewing an appellant‘s factual sufficiency challenge to an adverse jury finding

on which the other party had the burden of proof, we will consider all of the evidence in

the record, both in support of and contrary to the finding.       See Dow Chem. Co. v.


                                             9
Francis, 46 S.W.3d 237, 242 (Tex. 2001). We will set aside the district court‘s finding

only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong

and manifestly unjust.      Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Where there

are disputed issues of fact, we give deference to the fact-finder as they are the ―sole

judges of credibility of the witnesses and the weight to be given to their testimony.‖

Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex. 1993).

         2.   Analysis

         The evidence shows that Myrtle was ninety-three years old at the time of her

death.    She was recovering from a fall that had left her partially paralyzed, and had

several underlying illnesses such as hypertension, osteoarthrosis, and reflux

sympathetic dystrophy to complicate the recovery from her fall. According to various

witnesses, Myrtle was depressed about being admitted to a nursing home to recuperate.

Henry testified that he worried about his mother‘s state of mind when she could not recall

whether she had eaten on a particular day and reported seeing dead relatives.       In light

of the foregoing evidence, we hold that a reasonable fact finder could find that Myrtle

lacked the testamentary capacity to execute a will.        Myrtle‘s physical and mental

well-being were fragile due to her health problems and medications. The evidence was

legally sufficient to support the jury‘s finding that Myrtle lacked testamentary capacity.

City of Keller, 168 S.W.3d at 827. This finding is also factually sufficient, because it is

not ―so contrary to the overwhelming weight of the evidence as to be clearly wrong and

manifestly unjust.‖      Cain, 709 S.W.2d at 176.


                                              10
       Further, the evidence shows that Myrtle‘s two sons, Henry and Winston, were

close to her. They and their wives visited Myrtle at The Palms as often as they could

while she was recuperating.      Myrtle had never discussed creating a will because,

according to Henry and Winston, Myrtle knew that her boys would ―do what‘s right.‖

Winston said that Myrtle treated all of her children equally and did not favor any of them.

The testimony regarding Melta indicated that she had financial troubles and frequently

asked for money from her uncles.        The evidence also showed that Melta had her

grandmother sign a power of attorney and that Myrtle‘s will left the bulk of the estate to

Melta. There was also testimony that Melta tried to liquidate her grandmother‘s bank

account after her death and that Melta had allegedly stolen items from her stepmother‘s

and grandmother‘s homes.

       We hold that a reasonable fact finder could deduce that Melta unduly influenced

her grandmother Myrtle to create a will to devise a disproportionate amount of her estate

to Melta. The evidence showed that Melta isolated Myrtle from her sons and their wives

through a power of attorney document.            Melta‘s finances, based on the record,

appeared to be strained, and she received the bulk of Myrtle‘s estate in the will, whereas

Henry received a table, chair, and lamp and Winston received a china cabinet. We

conclude that the evidence was legally sufficient to support the jury‘s finding on undue

influence.   City of Keller, 168 S.W.3d at 827. We also conclude that, after considering

all of the evidence in the record, the finding of undue influence is not ―so contrary to the

overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.‖


                                            11
Cain, 709 S.W.2d at 176.       Accordingly, the jury‘s finding of undue influence was also

factually sufficient. We overrule Melta‘s first issue.

B.     Evidentiary Issues

       By issues two, three, six, and seven, Melta challenges the trial court‘s decision

regarding certain evidentiary issues.         The admission or exclusion of evidence is a

matter within the trial court‘s discretion.    In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005)

(citing State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001)). To obtain

reversal of a judgment based on error in the admission or exclusion of evidence, an

appellant must show that the trial court‘s ruling was in error and that the error was

calculated to cause and probably did cause the rendition of an improper judgment.

Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004).                  ―Erroneous

admission of evidence requires reversal only if the error probably (though

not necessarily) resulted in [the rendition of] an improper judgment.‖     Id.; see also TEX.

R. APP. P. 61.1(a). We address each of Melta‘s evidentiary issues in turn.

       1.   Evidence on Myrtle’s Physical and Mental Capacity

       In issue two, Melta argues that the trial court inappropriately allowed jurors to hear

testimony about Myrtle‘s physical and mental capacity from a non-expert witness,

Sandra Larson.     Melta specifically complains Larson ―is not a [sic] RN, and is not able to

make a diagnosis‖ regarding whether Myrtle may have lacked the mental capacity to

execute a will.

       Pro se litigants must abide by the same standards as licensed attorneys and


                                                12
comply with applicable laws and rules of procedure.          See Mansfield State Bank v.

Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Giddens v. Brooks, 92 S.W.3d 878, 880-81

(Tex. App.––Beaumont 2002, pet. denied).          ―There cannot be two sets of procedural

rules, one for litigants with counsel and the other for litigants representing themselves.‖

Mansfield, 573 S.W.2d at 185 (citing Stein v. Lewisville Ind. Sch. Dist., 481 S.W.2d 436

(Tex. Civ. App.––Fort Worth 1972, writ ref'd n. r. e.)).   Here, Melta failed to object when

Larson testified at length about Myrtle‘s physical and mental capacity.    See TEX. R. APP.

P. 38.1 (―As a prerequisite to presenting a complaint for appellate review, the record

must show that the complaint was made to the trial court by a timely request, objection,

or motion . . . .‖). Accordingly, Melta failed to preserve error on this point, and we

overrule this issue.   Id.

       2. Melta’s Medical History and Character Evidence

       In issue three, Melta argues that the trial court erred when it allowed Melta‘s

personal medical history and certain character evidence to be admitted into evidence.

Again, though, Melta failed to timely object when testimony regarding her character was

admitted.   Id.   For example, while at a bench conference during the testimony of

witness Larson, the following exchange occurred:

       [MELTA]:                    While we‘re here, can I just ask a question?
                                   This evidence, the continuing of evidence
                                   regarding my character, that‘s just all going one
                                   way and is this—

       [THE COURT]:                You‘re going to have a chance to ask her
                                   questions and you will also have an opportunity
                                   to testify as well.

                                             13
      [MELTA]:                    Okay. But my question is, is this relevant to
                                  the case with regards to her being
                                  incapacitated or undue influence?

      [THE COURT]:                Well, it‘s already in. So that was something
                                  that should have been brought up before I
                                  admitted it.

      Although Melta later timely objected to the admission of certain testimony about

her character evidence, the evidence had already been admitted.         To preserve error,

appellant could have requested a running objection or objected to all the testimony

deemed objectionable.    See Schwartz v. Forest Pharmaceuticals, Inc., 127 S.W.3d 118,

124-25 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). ―Error in admitting evidence

is cured where the same evidence comes in elsewhere without objection.‖ Id. at 124

(holding that error was waived when the appellant failed to timely object to repeated

references about his alleged litigious nature).    Because Melta failed to timely object to

preserve this issue, we overrule issue three.

      3.   Testimony Regarding Undue Influence

      In issue six, Melta contends that the trial court erred when it admitted testimony

regarding alleged undue influence over the creation and execution of Myrtle‘s will. We

overrule this issue on the same basis that we overruled issues two and three.        Melta

failed to timely object and thus preserve error when testimony regarding her alleged

undue influence was admitted into evidence.       See TEX. R. APP. P. 33.1.

      4.   Exclusion of Records

      In her seventh issue, Melta complains that the trial court did not accept certain

                                            14
documents regarding Myrtle‘s health and well-being into evidence.               Based on our

review of the record, we presume that Melta is referring to the medical records from

Jordan Health Services.         The record indicates that Melta called the custodian of records

from Jordan Health Services, Patricia Nunez, onto the stand during trial. Henry and

Winston‘s    counsel     objected      to   these    documents    because    they   were   not

self-authenticated.    Melta could not establish the proper predicate to authenticate the

documents and, thus, could not offer them into evidence.          On the record, Melta stated,

―I just—Your Honor, at this point I think I‘ll just dismiss the witness because I don‘t know

what . . . the predicate is.‖

       To complain on appeal that the trial court improperly excluded evidence, the party

must have first preserved error by offering the evidence and securing an adverse ruling

from the trial court. See Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.––El Paso 2002,

no pet.); see also Dean-Groff v. Groff, No. 13-06-085-CV, 2007 Tex. App. LEXIS 8881,

at *14 (Tex. App.––Corpus Christi Nov. 8, 2007, no pet.) (mem. op.). The complaining

party must have complied with Texas Rule of Evidence 103(a)(2) which states that error

may not be predicated upon a ruling that excludes evidence unless, ―the substance of

the evidence was made known to the court by offer, or was apparent from the context

within which questions were asked.‖           TEX. R. EVID. 103(a)(2); see TEX. R. APP. P.

33.1(a)(1); Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex.

App.––Houston [1st Dist.] 1997, no pet.). Without an offer of proof, this Court cannot

determine whether exclusion of the evidence was harmful.          Perez, 74 S.W.3d at 66-67.


                                                15
       Melta made no offer of proof.      Further, she did not offer the excluded evidence

into the record by filing a formal bill of exception within thirty days of filing the notice of

appeal.   See TEX. R. APP. P. 33.2.       Because we cannot consider the records and

because the substance of the records is not apparent from the record, Melta has failed to

preserve error regarding these reports. See Wade, 961 S.W.2d at 374 (holding that, in

the absence of offer of proof, an appellate court has no basis to review a contention that

the trial court committed reversible error by preventing defendant from introducing

documents).    Accordingly, we overrule this issue.

C.     Issues Regarding the Jury Charge and Closing Arguments

       By her fourth issue, Melta complains that the jury charge ―was not relevant or

consistent to the issues presented in opposition to a will contest.‖ However, during the

charge conference, the trial court specifically asked Melta:    ―Do you have any objections

[to the charge]?‖, and Melta replied, ―No. That‘s fine.‖ Accordingly, we hold that Melta

failed to preserve error on this issue.   See TEX. R. APP. P. 33.1.

       Melta also argues that counsel for Henry and Winston ―continued to give incorrect

and confusing interpretations of the law, and to the jurors regarding ‗yes or no‘ answers,

and the Jurors were still confused when they rendered their decision.‖ We presume

that Melta refers to opposing counsel‘s closing arguments, where counsel offered

guidance on how to answer the jury charge.           Melta did not object during counsel‘s

closing arguments, so this sub-issue has also been waived.        Id.




                                              16
       Melta finally contends that ―the prepared Final Judgment was not consistent with

the juror‘s verdict.‖ The jury charge posed two questions to the jurors in this case.

Question 1 asked the jury the following:       ―Do you find from a preponderance of the

evidence that Myrtle Marie Brooks lacked the testamentary capacity to make and sign

her Last Will and Testament?‖ The jurors answered ―Yes‖ to this question. Question 2

asked, ―Do you find from a preponderance of the evidence that the Last Will and

Testament of Myrtle Marie Brooks, dated May 14, 2004, was made as the result of undue

influence exercised by Melta Brooks-Cannon over Myrtle Marie Brooks?‖ The jurors

answered in the affirmative to this question, as well.        However, the Final Judgment

states that ―the jury . . . answered ‗No‘ to Question 1, and ‗Yes‘ to Question 2 . . . .‖

       This error did not cause the rendition of an improper judgment.       See TEX. R. APP.

P. 44.1.   The jury found two bases upon which to invalidate the will, but the judgment,

because of a clerical error, only refers to one.      Pursuant to Texas Rule of Appellate

Procedure 43.2(b), the remedy for this challenged inconsistency is not to reverse the

judgment, as Melta urges, but to modify the trial court‘s judgment to reflect that the ―jury

answered ‗Yes‘ to Question 1, and ‗Yes‘ to Question 2.‖           See TEX. R. APP. P. 43.2.

Having addressed all of the sub-issues in issue four, we overrule it.

D.     The Appointment of an Attorney Ad Litem

       Melta‘s fifth issue complains that the court appointed attorney Joe A. Flores as an

attorney ad litem on October 16, 2007, when Henry and Winston filed their application for

determination of heirship.     In her brief, Melta argues that Flores‘s ―duties were to


                                              17
represent [Myrtle‘s] heirs.‖ She complains that Flores instead ―reported to the court

regarding [Melta‘s] medical background, and referred to information again that was

obtained illegally . . . i.e. 10-year-old bankruptcy issues and psychiatric medical

background wit to [sic] Bi-polar.‖

       Melta‘s appellate point of error is unclear in this regard. See TEX. R. APP. P.

38.1(i). It appears that Melta disagrees with Flores‘s testimony and report in the case.

We note that the only time Flores appears in the record is outside the presence of the

jury when he discussed his appointment with reference to the application for

determination of heirship and his compensation for work done in that regard.      Melta also

references a report that Flores submitted to the trial court as part of that appointment, but

Flores‘s report is not in the appellate record.    Because neither Flores‘s testimony nor

his report were preserved for this Court to review, we overrule Melta‘s fifth issue.    See

TEX. R. APP. P. 33.1.

                                     III. CONCLUSION

       Having overruled all of Melta‘s issues on appeal, we modify the clerical error in

the judgment and affirm the judgment of the trial court, as modified.



                                                         ________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Delivered and filed the
23rd day of June, 2011.


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