                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION

                                              No. 04-19-00203-CV

                                       IN THE INTEREST OF L.A.V.

                      From the 166th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2018EM506059
                        Honorable Eric J. Rodriguez, Associate Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Luz Elena D. Chapa, Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: April 29, 2020

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

           Robert B. 1 appeals from the trial court’s order establishing the parent-child relationship. In

his pro se brief, he argues (1) the trial court erred in setting the amount of his child-support

payments because it used his past income and did not consider that he was no longer employed

and was receiving SSI benefits, and (2) the trial court erred in establishing parentage because

neither L.A.V. nor L.A.V.’s mother submitted to DNA testing. We affirm in part, and reverse and

remand in part.




1
 To protect the identity of the minor child, we refer to the parties by fictitious names, initials, or aliases. See TEX.
FAM. CODE § 109.002(d).
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                                           BACKGROUND

       The clerk’s record reflects that on September 6, 2018, the Office of the Attorney General

(“the OAG”) filed a petition to establish the parent-child relationship and named Robert B. as the

father of sixteen-year-old L.A.V. The clerk’s record also reflects that Robert B. was served by

substituted service as authorized by the trial court. On November 8, 2018, the trial court set a “final

hearing on the merits of the parentage action or temporary orders, if appropriate,” for January 30,

2019, “notif[ying] all parties that refusal to submit to testing as ordered above may result in the

adjudication of paternity by the court at the above-scheduled hearing, and/or a finding of contempt,

pursuant to Texas Family Code § 160.622.” At the end of the order appears the signatures of the

parties involved, including Robert B.’s signature.

       On January 31, 2019, the trial court reset the “trial on the merits” for April 2, 2019. The

trial court again notified the parties that “failure to appear may result in the issuance of a default

order.” The trial court ordered Robert B. “to appear before this court at the date and time stated

above.” Robert B.’s signature, however, is not found at the end of this reset order. The reporter’s

record of the April 2, 2019 trial reflects that Robert B. did not appear, and trial proceeded without

him being present.

       The only witness to testify was L.A.V.’s mother, Erika V. She testified that Robert B. is

L.A.V.’s father and that there is no possibility of another man being his father. According to Erika

V., L.A.V. resides primarily with her, and she has been responsible for making all the day-to-day

decisions regarding his care. She explained that Robert B. had known about L.A.V. since L.A.V.

“was really young.” When asked about the last time Robert B. had seen L.A.V., Erika V. replied,

“He’s really never seen him.” According to Erika V., Robert B. has spoken to L.A.V. on the phone

and has messaged him in the past, but had never visited with L.A.V. in person.




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        With regard to Robert B.’s employment, Erika V. testified Robert B. was employed but she

did not know where he was working or the amount of his income. Indeed, the only evidence

relating to Robert B.’s income at trial appears to have been “State’s Exhibit A,” which the OAG

described at trial as “an investigative review that was done by one of our child support officers.”

The reporter’s record reflects that State’s Exhibit A was admitted in evidence; however, it is not

included in the reporter’s record. The reporter’s record reflects that at the end of trial, the trial court

handed State’s Exhibit A back to the attorney representing the OAG.

        The Judge’s Notes of the April 2, 2019 trial indicate that “default [was] granted on petition

to establish [parent-child] relationship.” On April 3, 2019, the trial court signed an order

establishing the parent-child relationship. The trial court’s order states that (1) it held a hearing on

April 2, 2019; (2) L.A.V.’s mother appeared in person; and (3) Robert B., L.A.V.’s father,

“although duly notified, did not appear.” The trial court found that Robert B. “is the biological

father of [L.A.V.]” and “ordered that the parent-child relationship is established” between Robert

B. and L.A.V. The trial court appointed L.A.V.’s mother as managing conservator and Robert B.

as possessory conservator. The trial court found that Robert B.’s gross monthly resources are

$2,279.00 and that his net monthly resources are $1,919.34. The trial court ordered him to pay

$283.00 each month in child support and ordered $10,188.00 in retroactive child support. On April

4, 2019, Robert B. filed his notice of appeal.

                                  ASSESSMENT OF CHILD SUPPORT

        Robert B. first argues in his pro se brief that the trial court erred in assessing child support

because the trial court considered his previous income and not his current income. He claims that

before the date of the hearing, he informed “the child support officers” that he was unemployed

and receiving SSI benefits. We review a trial court’s order relating to child support for abuse of

discretion. Melton v. Toomey, 350 S.W.3d 235, 238 (Tex. App.—San Antonio 2011, no pet.).


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Although not independent grounds of error, legal and factual sufficiency are relevant factors in

assessing whether the trial court abused its discretion. Cruz v. Cruz, No. 04-17-00594-CV, 2018

WL 6793847, at *4 (Tex. App.—San Antonio Dec. 27, 2018, no pet.) (mem. op.); Newberry v.

Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

        In reviewing the appellate record, it appears the only evidence at trial relating to Robert

B.’s income was State’s Exhibit A, “an investigative review performed by one of the child support

officers.” However, as noted, State’s Exhibit A is not included in the reporter’s record, and the

reporter’s record reflects that it was given back to the attorney for the OAG at the end of trial.

Further, the person who created this report was not called as a witness at trial. Thus, there is no

other evidence in the record relating to this “investigative review” other than the exhibit itself.

Because the reporter’s record indicates State’s Exhibit A was handed back to the attorney for the

OAG, we ordered the OAG to deliver State’s Exhibit A to the trial court clerk. See TEX. R. APP.

P. 34.6(g) (“If someone other than the trial court clerk possesses an original exhibit, either the trial

court or the appellate court may order that person to deliver the exhibit to the trial court clerk.”).

In response to our order, the OAG represented that it is no longer in possession of State’s Exhibit

A and has been unable to locate an electronic copy of it. Thus, the OAG concedes that State’s

Exhibit A cannot be located and is lost.

        When “a significant exhibit” is lost “without the appellant’s fault,” “is necessary to the

appeal’s resolution,” and “cannot be replaced by agreement of the parties or with a copy

determined by the trial court to accurately duplicate with reasonable certainty the original exhibit,”

an appellant is “entitled to a new trial.” See TEX. R. APP. P. 34.6(f). In this case, it is clear that

State’s Exhibit A was lost without fault of Robert B. See id. Normally when faced with a lost

exhibit, we would order the trial court to conduct a hearing on whether the parties could replace

the exhibit by agreement or with a copy determined by the trial court to accurately duplicate the


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exhibit. See id. However, ordering the trial court to conduct a hearing on whether the parties could

agree as to the substance of State’s Exhibit A is futile in this case as Robert B. was not present for

the hearing. Further, the OAG has already represented in its written response that it cannot locate

a copy of State’s Exhibit A. Therefore, we conclude that State’s Exhibit A is lost and cannot be

replaced. See id. Further, as there is no other evidence in the appellate record relating to Robert

B.’s income, we conclude that State’s Exhibit A is “necessary” to the resolution of Robert B.’s

first issue. 2 See id. Accordingly, we hold Robert B. is entitled to a new trial on the issue of child

support. See id.

                                       DETERMINATION OF PARENTAGE

         In his second issue, Robert B. argues that the trial court erred in determining parentage

because L.A.V. and Erika V. did not submit to DNA testing and no DNA testing was performed.

The clerk’s record reflects that the trial court ordered Robert B., L.A.V., and Erika V. to submit to

DNA testing. At the hearing, Erika V. testified she was certain that Robert B. was L.A.V.’s father

and that there was no possibility that anyone else was the father. When asked about the DNA

testing, Erika V. testified Robert B. asked for DNA testing but did not appear for the testing. Given

this evidence that Robert B. did not appear for DNA testing, we find no error by the trial court in

determining Robert B. is L.A.V.’s father. See TEX. FAM. CODE ANN. § 160.622(b) (“A court may

adjudicate parentage contrary to the position of an individual whose paternity is being determined


2
 We note that Rule 34.6(f) also provides that an appellant should have timely requested a reporter’s record. See TEX.
R. APP. P. 34.6(f). However, an appellant’s failure to timely request the record does not preclude his right to a new
trial under all circumstances. For example, in Gavrel v. Rodriguez, 225 S.W.3d 758, 763 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied), the court of appeals determined that a significant portion of the record necessary to the
appeal’s resolution had been lost through no fault of appellant. The court held that the appellant’s failure to timely
request the record did not preclude his right to a new trial because, even if he had made a timely request, it would not
have prevented the inaccuracies in the record. Id. Thus, the court reversed the judgment of the trial court and remanded
the case for a new trial. Id. Similarly, here, Robert B.’s failure to timely request the record did not contribute to the
State losing the exhibit in its possession. See id. Robert B. was not even present at the hearing in question and was
thus unaware if a court reporter was taking a record. As stated in Gavrel, “[t]o hold appellant responsible for failing
to request a reporter’s record when, by all indications, such a request would not have prevented the loss of testimony
is to elevate form over substance.” Id.


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on the grounds that the individual declines to submit to genetic testing as ordered by the court.”).

Thus, we affirm the trial court’s order as it relates to establishing parentage between Robert B. and

L.A.V.

                                               CONCLUSION

         Because a significant exhibit necessary to the resolution of this appeal was lost through no

fault of Robert B., we reverse in part the trial court’s Order Establishing the Parent-Child

Relationship and remand this cause for a new trial on the issue of child support. In all other

respects, we affirm the trial court’s order.

                                                        Liza A. Rodriguez, Justice




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