      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00033-CV



                                    Arnold Macias, Appellant

                                                  v.

   Texas Department of Criminal Justice Parole Division, Tammy Boddy, Paul Morales,
                 Lana Rhodes, Pat Ivy, and Brian Collier, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
      NO. D-1-GN-04-002558, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Arnold Macias, proceeding pro se, sued the Texas Department of Criminal

Justice, along with certain individual employees of the Department, alleging violations of the Texas

Penal Code, as well as a charge of civil assault against Department employee Tammy Boddy. The

Department and individual employees specially excepted, arguing that Macias’s petition did not

plead with sufficient specificity to place them on notice about what actions or omissions were

attributed to them. The trial court granted the special exceptions and Macias filed an amended

petition, bringing suit against the Department and the individual employees for assault, stalking,

abuse of office, abuse of official capacity, official oppression, failure to report assault to a police

officer, and removal of government documents.

               On August 4, 2005, the trial court dismissed all of Macias’s claims other than the

claim for civil assault as frivolous under chapter 13 of the civil practices and remedies code. Boddy
filed a motion for summary judgment regarding the assault claim, which the trial court granted on

October 23, 2006. Macias appeals the dismissal of his claims and the granting of the summary

judgment. We affirm the trial court’s judgment.


                                         BACKGROUND

               Macias’s assault claim arises from an incident that took place on March 8, 2004,

when Macias visited the parole office to meet with his parole officer, Paul Morales. Macias claims

that Boddy, a unit supervisor in the parole office, struck him as he was walking down a hallway to

Morales’s office. According to Boddy’s characterization of the incident, she spoke with Macias in

the hallway and then “tapped him on his shoulder and continued to walk down the hall.” She asserts

that “[t]he tap was a sign of encouragement” and was “meant to be a friendly gesture.” Morales, who

witnessed the incident, stated that Boddy merely “placed her hand on [Macias’s] shoulder for a

second” in a gesture that was “not a slap or a punch.”

               Macias’s remaining claims, which he attempted to bring under the Texas Penal Code,

arise from other behavior by Department employees, namely Macias’s allegations that Paul Morales

and Matt Smith refused to allow him access to the law library, that Llana Rhodes removed certain

documents related to his electronic-monitoring device from his record, that Morales failed to record

Macias’s work schedule in his supervised program daily schedule, and that Morales failed to meet

the statutory requirements for employment as a parole officer.

               Macias, proceeding pro se, asserts that the trial court erred in dismissing a portion of

his claims under chapter 13 of the civil practice and remedies code and in granting Boddy’s motion

for summary judgment on the remaining claim for civil assault. On appeal, Macias also makes a

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number of procedural complaints, including claims that he was denied assistance of counsel, that he

was denied an opportunity for discovery, and that no court reporter was available at his summary-

judgment hearing.


                                            DISCUSSION

Dismissal Under Chapter 13

                Because Macias is proceeding in forma pauperis, his claims are subject to chapter 13

of the civil practice and remedies code. When an affidavit of inability to pay has been filed, a trial

court may dismiss the action on a finding that it is frivolous or malicious. Tex. Civ. Prac. & Rem.

Code Ann. § 13.001(a)(1) (West 2002). In determining whether an action is frivolous, the trial court

may consider whether (1) the action’s realistic chance of ultimate success is slight, (2) the claim has

no arguable basis in law or fact, or (3) it is clear that the party cannot prove a set of facts in support

of the claim. Id. § 13.001(b). Because the Texas Supreme Court has discouraged reliance on the

chances of ultimate success or the party’s inability to prove a set of facts in support of the claim, we

will focus on whether the claim lacks an arguable basis in law or in fact. See Johnson v. Lynaugh,

796 S.W.2d 705, 706 (Tex. 1990); Brewer v. Collins, 857 S.W.2d 819, 822 (Tex. App.—Houston

[1st Dist.] 1993, no writ).

                The trial court has broad discretion in determining whether to dismiss a claim as

frivolous under § 13.001. Brewer, 857 S.W.2d at 822. A court abuses its discretion when it “acts

arbitrarily, capriciously, and without reference to any guiding rules or principles.” Id.

                Macias attempted to bring his claims, other than his claim for civil assault, under the

Texas Penal Code. However, “the Texas Penal Code does not create private causes of action,” and

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as a result, “these allegations fail to state a viable claim for relief.” Spurlock v. Johnson, 94 S.W.3d

655, 658 (Tex. App.—San Antonio 2002, no pet.). Because those claims brought by Macias under

the penal code lack an arguable basis in law, we hold that the trial court did not abuse its discretion

by dismissing such claims as frivolous.


Civil Assault

                In relation to Macias’s civil-assault claim, Boddy filed a joint traditional and no-

evidence motion for summary judgment under Texas Rules of Civil Procedure 166a and 166a(i).

When multiple grounds for summary judgment are raised and the trial court does not specify the

grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the grounds

advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). A no-

evidence summary judgment is properly granted when there is no evidence of one or more essential

elements of a claim on which an adverse party would have the burden of proof at trial. Tex. R. Civ.

P. 166a(i). In reviewing a no-evidence summary judgment, “the task of the appellate court is to

determine whether the plaintiff has produced any evidence of probative force to raise fact issues on

the material questions presented.”         Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70

(Tex. App.—Austin 1998, no pet.).

                In order to establish a claim of civil assault, the complainant must establish the same

elements required for criminal assault.            Johnson v. Davis, 178 S.W.3d 230, 240

(Tex. App.—Houston [14th Dist.] 2005, pet. denied). There are three avenues by which an assault

can occur. See Tex. Penal Code Ann. § 22.01(a) (West Supp. 2006). An assault occurs under

§ 22.01(a)(1) if a person intentionally, knowingly, or recklessly causes bodily injury to another.

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Macias presented no evidence that he suffered bodily injury. Under § 22.01(a)(2), an assault occurs

when a person intentionally or knowingly threatens another with imminent bodily injury. Again,

Macias has not presented evidence that Boddy threatened him with imminent bodily injury. Under

§ 22.01(a)(3), an assault occurs when a person intentionally or knowingly causes physical contact

with another when the person knows or should reasonably believe that the other will regard the

contact as offensive or provocative. Macias’s evidence regarding the alleged assault consists solely

of his statement that “Tammy Boddy strikes Arnold Macias [sic] Mar. 8, 2004.” Boddy described

this contact as a “tap on his arm” that was “meant to be a friendly gesture,” and Morales, who

witnessed the incident, also described the contact as “friendly” and stated, “I did not believe Macias

would consider a simple tap on his should[er] an assault.” Macias has not presented evidence that

Boddy knew or should have reasonably believed that her contact with Macias would be regarded as

offensive or provocative. Because Macias has failed to present evidence of an essential element of

his claim, we hold that the trial court did not err by granting Boddy’s motion for summary judgment.


Failure to Appoint Counsel

               Macias further complains on appeal that he was denied assistance of counsel. The

trial court denied Macias’s request for appointed counsel, but it is within a trial court’s discretion

to do so in a civil case. See Tex. Gov’t Code Ann. § 24.016 (West 2004); Travelers Indemn.

Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996) (holding that there is no constitutional right to

counsel in civil proceedings); Lassiter v. Department of Soc. Servs., 452 U.S. 18, 26-27 (1981)

(“[A]n indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived

of his physical liberty.”). There is no danger that the outcome of this litigation will cause Macias

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to be deprived of his physical liberty. As a result, we hold that the trial court did not abuse its

discretion in denying Macias appointed counsel.


Lack of a Court Reporter

               Macias also complains that there was no court reporter available to record his

summary-judgment hearing. However, Macias failed to preserve this issue for appeal. When a party

objects to a court reporter’s failure to make a record of proceedings, the objection “must be preserved

by filing a motion or other written objection.”                   Reyes v. Credit Based Asset

Servicing & Securitization, 190 S.W.3d 736, 740 (Tex. App.—San Antonio 2005, no pet.).

Furthermore, “litigants who represent themselves must comply with the applicable procedural rules.”

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978). Because the clerk’s record does

not contain a written motion or other objection regarding the court reporter’s failure to record the

summary-judgment hearing, Macias failed to preserve this issue for appeal.

               Even if Macias had properly preserved the issue for appeal, the creation of a reporter’s

record is “a practice neither necessary nor appropriate to the purposes of such a hearing.”

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993). At a summary-

judgment hearing, a trial court’s decision is based solely on written pleadings and evidence, rather

than live testimony. Tex. R. Civ. P. 166a(c). Because a reporter’s record is not necessary for a

summary-judgment hearing, no error is presented.


Miscellaneous Additional Issues

               Macias makes a number of additional complaints on appeal, none of which are

adequately briefed. He contends that the trial judge and opposing counsel “introduced fabricated or


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manufactured evidence,” that he was denied the opportunity for discovery, and that the trial judge

violated various provisions of the Texas Code of Judicial Conduct. Because Macias does not explain

or support these contentions, we consider them inadequately briefed and decline to address them.

See Tex. R. App. P. 38.1(h). It is well-settled law that “a pro se litigant is held to the same standards

as licensed attorneys and must comply with applicable laws and rules of procedure.”

Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet. denied). Where,

as here, an issue on appeal is inadequately briefed, “we cannot speculate as to the substance of the

specific issues appellant claims we must address.” Id. at 678. Accordingly, we resolve Macias’s

remaining issues against him.


                                           CONCLUSION

                Because the trial court did not err in dismissing a number of Macias’s claims under

chapter 13 of the civil practices and remedies code or in granting summary judgment on the

remaining claim, we affirm the trial court’s judgment.



                                                __________________________________________

                                                Diane Henson, Justice

Before Chief Justice Law, Justices Puryear and Henson

Affirmed

Filed: August 21, 2007




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