                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                §
                                                                No. 08-11-00213-CV
 IN THE MATTER OF                               §
                                                                    Appeal from
 THE GUARDIANSHIP                               §
                                                                    Probate Court
 OF JODI TYLER,                                 §
                                                              of Denton County, Texas
 AN INCAPACITATED PERSON                        §
                                                               (TC # PR-2010-00559)


                                          OPINION

       Garrod Tyler appeals an order finding him unsuitable to serve as the guardian of Jodi

Tyler, an incapacitated person, and appointing Julie Alonzo-Calteaux as guardian. For the

reasons that follow, we affirm.

                                    FACTUAL SUMMARY

       On March 25, 2010, Garrod Tyler filed a divorce petition against his wife, Jodi Tyler, in

the 393rd District Court of Denton County (Cause Number 2010-60775-393. The district court

granted Garrod’s motion to appoint a guardian ad litem for Jodi and appointed Camille S.

Milner. Milner filed a petition in the probate court for a court-initiated guardianship pursuant to

Section 683 of the Probate Code. The probate court appointed Derbha Jones as the guardian ad

litem for Jodi and appointed Jean Manion as the probate court investigator. The probate court

later entered an order transferring the divorce action pursuant to Section 608 of the Probate
Code. Jodi’s sister, Julie Alonzo-Calteaux, filed an application to be appointed the permanent

guardian. Garrod subsequently non-suited the divorce and on the same date filed an application

to be appointed Jodi’s permanent guardian. On December 16, 2010, the probate court entered an

order vacating any prior do-not-resuscitate orders pending further order of the court. Following

a three-day bench trial occurring on March 21-23, 2011, the probate court determined that

Garrod was disqualified and unsuitable to be appointed guardian and the court appointed

Alonzo-Calteaux as Jodi’s permanent guardian. The probate court filed written findings of fact

and conclusions of law.

                           INCOMPLETE REPORTER’S RECORD

       Garrod Tyler contends in three issues that the probate court erred by giving certain rights

to Alonzo-Calteaux (Issue One), by vacating all previously executed powers of attorney and do-

not-resuscitate orders (Issue Two), and by finding him unsuitable and disqualified to serve as

guardian (Issue Three). Alonzo-Calteaux responds that Tyler has waived all three issues because

he has not provided a reporter’s record of the three-day trial.

       Under Rule 34.6(b) of the Rules of Appellate Procedure, an appellant must request in

writing that the official court reporter prepare the reporter’s record and designate the portions of

the portions of the proceedings to be included. TEX.R.APP.P. 34.6(b). If the appellant requests a

partial reporter’s record, the appellant must include in the request a statement of the points or

issues to be presented on appeal and will then be limited to those points or issues. TEX.R.APP.P.

34.6(c)(1). This gives other parties the opportunity to designate additional exhibits and portions

of the testimony to be included in the reporter’s record.         TEX.R.APP.P. 34.6(c)(2).   If the

appellant complies with these requirements, the appellate court must presume that the partial




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reporter’s record constitutes the entire record for purposes of reviewing the stated points or

issues. TEX.R.APP.P. 34.6(c)(4).

       The probate court’s findings of fact and conclusions of law recite that the case was tried

on March 21, 22, and 23, 2011, and the court heard the evidence and testimony of witnesses in

support of the various applications for appointment of guardian of the person and estate of Jodi.

The record does not include any request by Garrod for the reporter’s record nor does it include

any portion of the reporter’s record from the trial on the merits conducted in March of 2011. We

have been presented only with the reporter’s record from a hearing on May 4, 2011 during which

the probate court announced its ruling. The record also does not include any statement of the

points or issues Garrod intended to raise on appeal as required by Rule 34.6(b).            Absent

compliance with Rule 34.6(c)’s requirements, we will not apply Rule 34.6(c)(4)’s presumption,

and will instead presume that the omitted portions of the reporter’s record are relevant and

support the trial court’s judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002); In

re A.W.P., 200 S.W.3d 242, 244-45 (Tex.App.--Dallas 2006, no pet.). We will now consider the

impact of this presumption on the issues presented on appeal.

                                            Issue One

       In Issue One, Garrod contends that the probate court erred by taking away certain rights

from Jodi and giving them to Alonzo-Calteaux because the decision was contrary to findings

made by the physician who examined her. In support of this argument, Garrod directs our

attention to a document titled “Physician’s Certificate of Medical Examination” which was

attached as an exhibit to his amended application for appointment of a permanent guardian. The

probate court conducted a three-day trial on the merits and received evidence and testimony on

the issues, but the reporter’s record of the trial has not been included in the appellate record. We



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are required to presume that the omitted portions of the record are relevant to this issue and

support the trial court’s judgment. See Bennett, 96 S.W.3d at 229; In re A.W.P., 200 S.W.3d at

244-45. Consequently, Issue One is overruled.

                                              Issue Two

       In his second issue, Garrod argues that the probate court erred by vacating all previously

executed powers of attorney and do-not-resuscitate orders. These are two separate orders. The

record reflects that the probate court entered an order on December 16, 2010 vacating all existing

do-not-resuscitate orders regarding Jodi. The order was entered without a hearing. An appellate

court is required to examine the entire record to determine whether an error probably caused the

rendition of an improper judgment.         TEX.R.APP.P. 44.1; see Christiansen v. Prezelski, 782

S.W.2d 842, 843 (Tex. 1990). Even if we determined that the probate court erred by entering the

December 16, 2010 order, a matter we do not decide, we are unable to find reversible error due

to the absence of the reporter’s record.

       The second part of this issue concerns an order entered on April 6, 2011 granting a

motion filed by Jodi’s guardian ad litem to suspend all medical powers of attorney executed by

Jodi. The order also granted injunctive relief requested by the guardian ad litem. The order

recites that the probate court considered the argument of counsel and prior sworn testimony. We

are required to presume that the omitted portions of the reporter’s record are relevant to the order

and support it. Further, as was the case with the other order addressed in this same issue, the

absence of the record prevents us from determining that any error is harmful. For these reasons,

we overrule Issue Two.




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                                            Issue Three

       In his third issue, Garrod challenges the trial court’s ruling on the competing applications

to be appointed guardian.     An appellate court reviews a probate court’s appointment of a

guardian for an abuse of discretion. In re Guardianship of Alabraba, 341 S.W.3d 577, 579

(Tex.App.--Amarillo 2011, no pet.). We engage in a two-pronged inquiry: (1) Did the trial court

have sufficient information upon which to exercise its discretion, and (2) did the trial court err in

its application of discretion? Hodson v. Keiser, 81 S.W.3d 363, 367 (Tex.App.--El Paso 2002,

no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). The

traditional sufficiency inquiry applies to the first question. Hodson, 81 S.W.3d at 367; Lindsey,

965 S.W.2d at 592. Once we have determined whether sufficient evidence exists, we must then

decide whether the trial court made a reasonable decision. Hodson, 81 S.W.3d at 367. In other

words, we must conclude that the ruling was neither arbitrary nor unreasonable. Hodson, 81

S.W.3d at 367.

       In this case, the trial court has entered written findings of fact and conclusions of law in

support of its determination that Garrod is unsuitable and disqualified from serving as the

permanent guardian and that Alonzo-Calteaux is qualified and suitable to serve as the permanent

guardian of the person of Jodi Tyler. Garrod challenges certain aspects of the findings and the

probate court’s ruling. In the absence of a reporter’s record, we presume that sufficient evidence

was introduced to support the findings of fact and the judgment. Nelkin v. Panzer, 833 S.W.2d

267, 268 (Tex.App.--Houston [1st Dist.] 1992, writ dism’d w.o.j.), citing Mays v. Pierce, 154

Tex. 487, 281 S.W.2d 79, 82 (1955). This is the same presumption applied to the judgment

when the reporter’s record is incomplete and the appellant has failed to comply with Rule

34.6(c).   The probate court’s findings of fact support its ruling on the applications for



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appointment of a guarding. Accordingly, we find that the probate court did not abuse its

discretion. Issue Three is overruled. Having overruled each issue, we affirm the judgment of the

probate court.



April 17, 2013
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating




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