                                  NUMBER 13-13-00593-CV

                                     COURT OF APPEALS

                           THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


                      IN THE INTEREST OF I. O. G. R., A CHILD


                        On appeal from the 53rd District Court
                              of Travis County, Texas.


                                  MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Perkes and Longoria
             Memorandum Opinion by Chief Justice Valdez

        Appellant, J.R., appeals the trial court’s granting of a motion to modify a final

divorce decree filed by appellee, his child’s mother.1 By two issues, appellant contends

that the trial court erroneously relied on inadmissible testimony that was not presented at

a bench trial. We affirm.




        1 This appeal was transferred from the Third Court of Appeals in Austin, Texas pursuant to a docket
equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West,
Westlaw through 2013 3d C.S.).
                                            I.      BACKGROUND

       Appellant and appellee were divorced and in the divorce decree, they were

appointed joint managing conservators of the child. Appellant was granted the right to

designate the primary residence of the child. On July 25, 2012, appellee filed a petition

to modify the final decree of divorce requesting that the right to designate the primary

residence of the child be given to her. The trial court held a bench trial on January 7,

2013 through January 10, 2013. On March 6, 2013, the trial court “re-opened” evidence

for further hearing, issued interim orders regarding the modification, and ordered the

parties to return for a status hearing prior to issuance of the final order. On July 17, 2013,

the trial court reconvened and issued its final order finding that there had been a material

and substantial change in the circumstances surrounding the child and the parties

sufficient to justify modification of the final divorce decree.                   The trial court granted

appellee’s motion and ordered that the exclusive right to designate the child’s residence

be switched from appellant to appellee.2 This appeal followed.3

                                      II.        STANDARD OF REVIEW

       We review a trial court’s order regarding child custody, control, possession, and

visitation for an abuse of discretion. Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex. App.—

Dallas 1999, no pet.). “The trial court is vested with broad discretion to determine which

conservator will have the exclusive right to establish the child’s primary residence.”

Strong v. Strong, 350 S.W.3d 759, 764–65 (Tex. App.—Dallas 2011, pet. denied) (citing

In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas 2009, no pet.)). And we will not



       2   Appellant and appellee remain joint managing conservators of the child.
       3   Appellant only requested that a partial reporter’s record be filed with this Court.


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disturb the trial court’s judgment unless the record as a whole shows that the trial court

abused its discretion. Id. (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982);

In re K.L.W., 301 S.W.3d at 424). A trial court abuses its discretion when it acts arbitrarily

and unreasonably or without reference to any guiding principles. Id.

                                         III.    DISCUSSION

        By his first and second issues, appellant contends that the trial court erroneously

relied on inadmissible evidence. In his first issue, appellant argues that the complained-

of evidence was inadmissible pursuant to rule of evidence 804. See TEX. R. EVID. 804

(setting out the hearsay exceptions when a declarant is unavailable). In his second issue,

appellant argues that the complained-of evidence was inadmissible because it constituted

conduct occurring prior to the divorce. Specifically, appellant complains that the trial court

stated the following:

                And [appellant], probably what has caused the Court the most
        concern related to what has happened, and to try to determine what is in
        the best interest of your child, [], is some of the allegations that have been
        made against you, and then some that—it is a good thing that courts keep
        cases, so that we know the history of the case and we know—we know what
        happened. Part of it is the issues related to domestic violence as related to
        Mom. The issues of domestic violence as related to a past partner. The
        issue or the allegations of a date rape. And now we have allegations that
        you—you know—and, again they are allegations. There are two individuals
        that came before the court that—last time around—that I kept out, that I did
        not let go in front of the jury, but had been raised here and obviously—and
        I heard testimony last time. But I kept it out, and the jury did not hear it.[4]

        It appears that appellant argues that the above-quoted statement proves that the

trial court relied on the testimony of witnesses who did not actually testify at the bench

trial held on January 7, 2013 through January 10, 2013. Appellant maintains that at a


        4 The trial court made the complained-of statement on January 10, 2010, at a proceeding entitled,

“Court’s Ruling.” This is the only portion of the reporter’s record filed with this Court.


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prior trial, the trial court excluded evidence from several witnesses “about these types of

allegations” and only heard the allegations in a hearing held outside the presence of the

jury.5 According to appellant, the trial court should not have relied on those witnesses’

statements because the statements were inadmissible under rule of evidence 804 and

because appellee failed to show that the conduct occurred after the divorce decree was

entered.6

        We disagree with appellant’s interpretation of the judge’s statement. The record

shows that when making this statement, the judge was explaining her ruling on whether

modification of the divorce decree would be in the child’s best interest. The judge stated

in relevant part, “And now we have allegations that you—you know—and, again they are

allegations. There are two individuals that came before the court that—last time around—

that I kept out, that I did not let go in front of the jury, but had been raised here. . . .”

(Emphasis added). We interpret the judge’s statement as documenting that at the prior

jury trial, she excluded certain witnesses’ testimony, but that during the bench trial,

evidence was raised regarding the allegations that those witnesses made.7 However, we

are unable to determine exactly what evidence was raised at the bench trial because


        5   The record from that proceeding has not been filed with this Court.
        6 Appellant claims that the complained-of witnesses did not testify at the bench trial. However, he

then argues that the witnesses’ testimony would have been inadmissible under rule of evidence 804.
        7   Later, the judge stated:

                But here we have allegations of the fact that you may be a person of interest in two
        cars that have been burned of an ex-girlfriend.

                We’ve got Dr. Dublin’s concern. We’ve got the therapist’s concern. We’ve got the
        guardian ad litem’s concern. And all of that combined together, all of that combined
        together that affects the court’s ruling.

The judge then granted appellee’s motion to modify the divorce decree. Thus, it appears that the judge
may have relied on the testimony of the above-mentioned witnesses when she made her ruling.


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appellant has not provided the Court with the reporter’s record. Thus, as we interpret the

judge’s remarks, the evidence regarding the witnesses’ allegations may have been

admitted at the bench trial by other means. See In re E.A.K., 192 S.W.3d 133, 148 (Tex.

App.—Houston [14th Dist.] 2006, pet. denied) (explaining that any error in the admission

of evidence is generally deemed harmless if the same or similar evidence is subsequently

introduced without objection). In addition, we are unable to determine if transcripts of the

complained-of witnesses’ testimony were properly authenticated and entered into

evidence. Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.]

2011, no pet.) (“In order for testimony from a prior hearing or trial to be considered in a

subsequent proceeding, the transcript of that testimony must be properly authenticated

and entered into evidence.”).

       As previously stated, we will not disturb the trial court’s judgment unless the record

as a whole shows that the trial court abused its discretion. See Strong, 350 S.W.3d at

764–65. And, here we have not been provided with the entire record. We must presume

that the omitted portions of the record are relevant to this appeal and that the missing

evidence supports the trial court’s judgment. See CMM Grain Co. v. Ozgunduz, 991

S.W.2d 437, 440 (Tex. App.—Fort Worth 1999, no pet.). Moreover, assuming without

deciding that the trial court relied on the complained-of testimony, appellant failed to

object on any basis when the trial court made its ruling, and appellant has not shown that

he objected at any other time. See TEX. R. APP. P. 33.1 (requiring specific and timely

objection to preserve alleged error).

       Finally, appellant has not argued that he was harmed or explained how he was

harmed by the trial court’s alleged error. See In re D.O., 338 S.W.3d 29, 37 (Tex. App.—



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Eastland 2011, no pet.) (explaining that once error has been found, the appellate court

must determine whether the error is harmful). To show that he was harmed, the appellant

has the burden of demonstrating that the complained-of error probably caused the

rendition of an improper judgment. Id. To obtain reversal for the improper admission of

evidence, the appellant must demonstrate that the judgment turns on the particular

evidence admitted, and we review the entire record to make this determination. Id. at 38.

Appellant has not met his appellate burden of demonstrating that he was harmed, thus,

even assuming error, we are unable to make such a finding without reviewing the entire

record. See id. We overrule appellant’s first and second issues.

                                   IV.     CONCLUSION

      We affirm the trial court’s order.

                                                        /s/ Rogelio Valdez
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Delivered and filed the
7th day of August, 2014.




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