Opinion issued August 22, 2013




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-10-01003-CV
                         ———————————
                LEON ANTHONY BENJAMIN, Appellant
                                   V.
                BARBARA LAVON BENJAMIN, Appellee



                 On Appeal from the 247th District Court
                         Harris County, Texas
                     Trial Court Case No. 1011421
               MEMORANDUM OPINION ON REHEARING 1

      Appellant Leon Anthony Benjamin appeals from a divorce decree.              He

challenges the trial court’s reliance on his ex-wife’s testimony in determining the

award of some property, but he failed to obtain a record of that testimony.

Accordingly, we conclude that he waived the issue on appeal. We affirm.

      After remaining separated for 25 years, Leon Benjamin filed a petition for

divorce from his wife Barbara Lavon Benjamin in 2010. In his petition, Leon

stated that the divorce was uncontested and that there was no community property.

He requested that the court divide the parties’ property that was “in each of the

parties possession, or in a manner that the court deems just.”            Leon was

incarcerated throughout the divorce process. The divorce decree awarded each

party the community property in each party’s possession. Both Leon and Barbara

signed the decree.

      On the day the decree was signed, Leon filed a “motion to amend alternative

dispute resolution,” requesting an “equal” division of all of Barbara’s property,

including any cars, jewelry, bank accounts, or real property. Alternatively, Leon

requested $900 or the property that he had requested during the alternative dispute


1
      We originally issued a memorandum opinion in which we dismissed the
      appeal for appellant’s failure to provide proof of notice to all parties to the
      proceeding. Appellant filed a motion for rehearing, which we granted. We
      withdraw our previous memorandum opinion, vacate our prior judgment,
      and issue this memorandum opinion and the related judgment in their stead.
                                         2
resolution proceeding. A week later, Leon filed a notice of appeal. In his appeal,

Leon complains that the trial court failed to award him several pieces of jewelry he

requested when it granted the divorce, specifically a silver and diamond ring, a

silver chain, and a silver cross. He alleges that Barbara lied and told the trial court

that he had “burned up” his jewelry. He raises two points of error. First, he asserts

that the trial court erred in failing to award him the jewelry when there was “no

evidence” to support Barbara’s allegations that he had destroyed the jewelry.

Barbara had testified when asked by the trial court that Leon had “burned up” the

jewelry, and Leon challenges the lack of anything besides Barbara’s statements to

support this allegation. Second, he asserts that the trial court erred by failing to

decide whether he was obligated to pay the clerk’s fee, although he had filed an

affidavit of indigence.

      As the clerk’s record on indigence does not reflect that the trial court timely

conducted a hearing or signed an order on the matter, we allowed Leon to proceed

without the payment of costs. See TEX. R. APP. P. 20.1(i)(4) (deeming the party’s

indigence to be true unless the trial court signs an order sustaining the contest to

indigence within the prescribed period of time). Accordingly, we overrule his

second issue as moot and we turn to consider his first issue concerning the trial

court’s failure to award him the jewelry.




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      Litigants appearing on their own behalf are held to the same standards as are

licensed attorneys, and they must comply with all applicable and mandatory rules

of pleading and procedure. De Mino v. Sheridan, 176 S.W.3d 359, 369 n.17 (Tex.

App.—Houston [1st Dist.] 2004, no pet.); see also Mansfield State Bank v. Cohn,

573 S.W.2d 181, 184–85 (Tex. 1978). A pro se litigant is required to properly

present his case on appeal, as we do not make allowances or apply different

standards for litigants appearing without the advice of counsel. See Morris v. Am.

Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex. App.—Houston [1st Dist.]

2011, no pet.). Although we construe briefs liberally, appellate briefs must contain

clear and concise arguments with appropriate citations to the record and supporting

authorities or the argument is waived. TEX. R. APP. P. 38.1(i); see also Morris, 360

S.W.3d at 36.

      Leon’s brief offers no citation to the record or appropriate authorities to

support his argument that the trial court erred by not awarding the jewelry to him.

To the extent he presents an argument, it is that the trial court had insufficient

evidence on which to support the award of property in the divorce decree when it

relied on Barbara’s allegedly untrue testimony. We construe this argument as a

challenge to the sufficiency of the evidence to support the judgment.

      As the appellant, Leon bears the burden to bring forward a sufficient record

to show that the trial court erred. Nicholson v. Fifth Third Bank, 226 S.W.3d 581,

                                         4
583 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Christiansen v.

Prezelski, 782 S.W.2d 842, 843 (Tex. 1990)). He cannot prevail in any evidentiary

challenge without first meeting his burden to present a sufficient record on appeal.

Id. The division of marital property will not be reversed on appeal unless the

complaining party shows that the trial court abused its discretion.         See, e.g.,

O’Connor v. O’Connor, 245 S.W.3d 511, 518 (Tex. App.—Houston [1st Dist.]

2007, no pet.). Failure to obtain a reporter’s record of the hearing makes it

impossible to establish that the trial court abused its discretion. Brown Mech.

Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 n.1 (Tex. App.—Houston

[1st Dist.] 2012, no pet.). When there is no reporter’s record and there are no

findings of fact, we assume that the trial court heard sufficient evidence to make all

necessary findings in support of its judgment. Nicholson, 226 S.W.3d at 583.

      Although Leon requested a reporter’s record in support of his appeal, the

court reporter did not record the divorce proceeding. 2 The appellate record also

does not reflect that Leon made a request to record the divorce proceeding. Even if

the court reporter is required to report the proceeding without Leon’s request, an

objection would still be required to preserve the failure to record for appellate

review. Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 162 (Tex.

2
      The final decree of divorce includes a form recital that the court reporter
      made a record: “The record of the testimony was duly reported by the court
      reporter for the 247th Judicial District Court.” However, the court reporter
      represented to our court that no record was made.
                                          5
App.—Texarkana 2005, no pet.) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex.

Crim. App. 2003)); Morin-Spatz v. Spatz, No. 05-00-01580-CV, 2002 WL 576513,

at *8 (Tex. App.—Dallas Apr. 18, 2002, no pet.). In order to present such a

complaint for review, the record must show that (1) the complaint was made to the

trial court by a timely request, objection, or motion with such specificity as to

make the trial court aware of the complaint and that (2) the trial court ruled or

refused to rule on the complaint. TEX. R. APP. P. 33.1. No request, objection, or

motion challenging the failure to make a record appears in the appellate record.

      Thus, by failing to request that the court reporter record the divorce hearing

or to object to the reporter’s failure to record, Leon has failed to preserve his issue

for review. See Nabelek v. Dist. Attorney of Harris Cnty., 290 S.W.3d 222, 231

(Tex. App.—Houston [14th Dist.] 2005, pet. denied) (failing to object to a

reporter’s failure to record fails to preserve issues for review that rely on evidence

found in the reporter’s record).

                                     Conclusion

      We affirm the order of the trial court. All pending motions are denied.



                                              Michael Massengale
                                              Justice

Panel consists of Justices Jennings, Bland, and Massengale.



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