                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
 IN THE MATTER OF                                                No. 08-16-00034-CV
                                                 §
 THE ESTATE OF                                                      Appeal from the
                                                 §
 JOSE LIDIO ROMO, DECEASED.                                       Probate Court No. 1
                                                 §
                                                               of El Paso County, Texas
                                                 §
                                                                  (TC#2009-P00624)
                                                 §

                                          OPINION

       During the testimony of the first witness in a bench trial to set aside one of two wills

executed by Jose Lidio Romo, the probate court heard evidence that the will sought to be set aside

did not comport with the statutory requirements for a valid will. Without hearing further

testimony from other available witnesses, the trial court granted judgment to the party contesting

the will, Alma Luisa Romo Castillo, and entered an order setting aside the will on the ground it was

“void” and “of no cause and effect[.]” Louise Merhy Elizabeth Torres, the proponent of the will,

appeals. Finding no error, we affirm.

                                        BACKGROUND

       Jose Lidio Romo executed a will on May 1, 2001 (the 2001 Will), in which he named his

brother, Lorenzo, both beneficiary and executor of his estate. Jose Romo died on April 10, 2009.
On June 23, 2009, Lorenzo filed an application to probate Romo’s 2001 will. Lorenzo was later

found unqualified to serve as independent administrator, and his daughter, Appellee Alma Luisa

Castillo, was designated as successor administrator.

        Approximately nine months later, on March 17, 2010, Lorena Ibarra, the guardian of

Appellant Louise Merhy Elizabeth Torres, filed an application to probate as a muniment of title

another will executed by Jose Lidio Romo on June 19, 2006 (the 2006 Will). This 2006 Will

named Romo’s “friend” Louise Merhy Elizabeth Torres as sole beneficiary of the Romo estate,

and named Lorena Ibarra as a substitute trustee and executor. The probate court issued an order

admitting the 2006 Will to probate as a muniment of title on June 2, 2010.

        The witness attestation page of the 2006 Will does not bear the signatures of the two

required witnesses, but rather contains only the typed names of Regina Giner and Maria Frausto

and their addresses. The self-proving affidavit that follows, however, bears the signatures of Jose

Lidio Romo, Maria Frausto, and Regina Giner, as witnessed by notary public Oralia D. Lopez.

        On April 12, 2011, Lorenzo filed an application contesting and seeking to set aside the

2006 Will. Lorenzo’s application was filed pursuant to Section 93 of the Texas Probate Code,

now Section 256.204 of the Texas Estates Code, which provides for the contest of probated wills.1

See TEX. EST. CODE ANN. § 256.204 (West 2014). Lorenzo alleged that the 2006 Will “was

attained under testamentary incapacity or undue influence.” Lorenzo’s application noted that he

was contesting the 2006 Will “based on Section 93 of the Texas Probate Code which allows for

any interested person to bring suit to contest the validity thereof within two years after such will

shall have been admitted to probate.” The probate court consolidated the two probate cases.


1
 The Texas Estates Code became effective on January 1, 2014. Acts 2009, 81st Leg., ch. 680, § 1, eff. Jan. 1, 2014.
We will refer to the current provisions of the Texas Estates Code, which supplanted the Texas Probate Code.
                                                        2
         A bench trial on the contest to set aside the 2006 Will was held on June 3, 2013.2 Counsel

for Torres informed the court that the case involved only “the issue of capacity and undue

influence” and that he did not believe there was “any issue that the [2006] will was executed with

the formalities and solemnities and under the circumstances required by law to make it a valid

will[.]” Counsel also informed the court that he believed Torres had the burden to show Romo

had the capacity to execute the 2006 Will and that he would “like to go first on the issue of

capacity.” The trial court allowed Torres to proceed first on the issue of Romo’s capacity to

execute the 2006 Will. Before proceeding, Torres’ counsel informed the court he had eight

witnesses to present.

         Torres then called as her first witness Oralia Duran Lopez, the notary public who notarized

the execution of the signatures on the 2006 Will. Lopez testified that she did not read the 2006

Will but had only notarized Romo’s signature. She explained that Romo “only took the last page”

of the 2006 Will “where he was going to sign,” and that she did not witness Romo initial any other

pages of the 2006 will.

         Lopez further testified that Romo had appeared by himself and that no one else was present

with Romo when he signed the document. Lopez did not specifically remember the witnesses to

the 2006 Will, but agreed that both Maria Frausto and Regina Giner were registered in her

notary-public book indicating that she had seen them on June 19, 2006. She later recalled,


2
   A bench trial on the contest initially began on June 20, 2012. Alma Luisa Castillo appeared and testified that Jose
Lidio Romo, her uncle, had at some point developed Alzheimer’s and that the proponents of the 2006 Will had taken
advantage and used undue influence to secure his execution of the 2006 Will. Romo’s sister-in-law also testified that
Romo has suffered from Alzheimer’s. Neither Lorena Ibarra nor Louise Merhy Elizabeth Torres appeared at this
hearing. Rather, their former attorney appeared briefly to announce to the court that he no longer represented them.
At the conclusion of the hearing, the judge did not issue a ruling but instead requested that additional evidence be
provided substantiating the diagnosis of Alzheimer’s and its onset. On January 24, 2013, the probate court entered an
order granting the contest. Subsequently, however, the court ruled it was going to rehear the case because a new
attorney for Torres had entered an appearance before she had signed the order granting the contest.
                                                          3
however, that Frausto “went after,” and that Frausto and Giner “went separate.” Lopez testified

that Giner “was there separate” and Romo was not present when she “showed up,” that Frausto

also went “afterwards,” and that Giner was not present with either Frausto or Romo.

       Castillo moved for “directed verdict” on the ground that Lopez had testified that neither

witness was present when Romo signed the 2006 Will making the will “invalid on its face.”

Castillo also argued the 2006 Will was invalid because neither Frausto nor Giner had signed the

witness attestation, which preceded the self-proving affidavit. The probate court asked Lopez

whether Romo was present when Frausto and Giner signed the document, and Lopez answered,

“No.” The trial court then granted Castillo’s motion for directed verdict.

       Torres’ counsel, who had informed the court at the outset of the trial that Torres would be

calling eight witnesses, asked “to make a bill . . . on the issue with subscribing witnesses,” but

called only Regina Giner to testify. Giner testified that she had signed the 2006 Will in the

presence of both Romo and the notary public. On cross-examination, Giner agreed that her

signature was not on the witness attestation page and that she did not remember how many pages

she had signed. Giner initially stated that she signed also in the presence of Maria Frausto, but

immediately admitted that: “I don’t know who’s Maria Frausto, but some people was [sic] there,

Mr. Romo, the notary. I don’t know who is this lady. Maybe I know, but I don’t know the name.

… This lady, I don’t know who – maybe she was there. I don’t know.”

       Torres’ counsel then informed the court he had no further questions “[o]n our bill.” The

trial court reaffirmed its ruling granting “directed verdict on the validity of” the 2006 Will.

Torres’ counsel did not seek to supplement the bill with the testimony of any of Torres’ remaining

witnesses, nor did he inform the probate court of the substance of their expected testimony. The


                                                4
trial court subsequently issued an amended order setting aside the 2006 will as “null and void and

of no cause and effect[.]” Torres appeals.3

                                                APPLICABLE LAW

           We first turn to the relevant law to be applied in determining the validity of a will. To

admit a will to probate, a trial court must find that it is valid. In re Estate of Livingston, 999

S.W.2d 874, 876 (Tex.App. – El Paso 1999, no pet.); see also In re Estate of Arrington, 365

S.W.3d 463, 466 (Tex.App. – Houston [1st Dist.] 2012, no pet.). To be admitted to probate, a will

must comply with the statutory provisions governing the formalities to be observed during a will

execution. See Brown v. Traylor, 210 S.W.3d 648, 684 (Tex.App. – Houston [1st Dist.] 2006, no

pet.) (the proponent for the admission of a will to probate must establish that “the testator executed

the will with the formalities and solemnities and under the circumstances required by law to make

it a valid will”). A will not executed in accordance with the prescribed statutory requirements is

of no force or effect. In re Estate of Hutchins, 829 S.W.2d 295, 299 (Tex.App. – Corpus Christi),

writ denied sub nom. Triestman v. Kilgore, 838 S.W.2d 547 (Tex. 1992) (per curiam); Belgarde v.

Carter, 146 S.W. 964, 965 (Tex.Civ.App. – San Antonio 1912, writ ref’d). Section 251.051 of

the Texas Estates Code provides in relevant part that, except as otherwise provided by law, a last

will and testament must be in writing, signed by the testator, and “attested by two or more credible

witnesses who are at least 14 years of age and who subscribe their names to the will in their own

handwriting in the testator’s presence.”4 TEX. EST. CODE ANN. § 251.051 (West 2014) (emphasis


3
  Torres previously attempted to appeal the probate court’s order setting aside the 2006 Will before the probate court
admitted the 2001 Will to probate in December 2015. We dismissed Torres’ first appeal for want of jurisdiction due
to the lack of a final appealable order because Section 256.101(a) of the Texas Estates Code required the probate court
to also determine the validity of the 2001 Will before the order setting aside the 2006 Will would be considered a final
order for purposes of appeal. In re Estate of Romo, 469 S.W.3d 260, 263 (Tex.App. – El Paso 2015, no pet.).
4
    “[A]ttestation of a will is the act of witnessing the performance of the statutory requirements to a valid execution of
                                                             5
added).

          The Texas Estates Code allows a will to be admitted to probate without the testimony of

any subscribing witnesses if the testator and witnesses execute a self-proving affidavit or the will is

simultaneously executed, attested, and made self-proved as provided by Section 251.1045. TEX.

EST. CODE ANN. § 251.102(a) (West 2014). A self-proved will can be prima facie evidence that

the will was properly executed. See Guthrie v. Suiter, 934 S.W.2d 820, 829 (Tex.App. – Houston

[1st Dist.] 1996, no pet.); see also Bracewell v. Bracewell, 20 S.W.3d 14, 26 (Tex.App. – Houston

[14th Dist.] 2000, no pet.). However, a self-proved will cannot otherwise be treated differently

than a will that is not self-proved, and may be contested in the same manner as a will that is not

self-proved. TEX. EST. CODE ANN. §§ 251.102(b), 251.106 (West 2014).

                                                 Analysis

          Torres does not challenge the sufficiency of the evidence to support the trial court’s ruling.

Rather, Torres complains in Issue One that the trial court erred because it granted a directed verdict

on the validity of the 2006 Will after the 2006 Will had already been admitted to probate, and

because it did so during a trial that was being held to set aside the 2006 Will on the basis of

testamentary incapacity and undue influence.

          Section 256.204 of the Texas Estates Code specifically provides that a probated will may

be contested provided the contest is filed not later than the second anniversary of the date the will

was admitted to probate. TEX. EST. CODE ANN. § 256.204(a) (West 2014). Torres contends the

2006 Will was admitted to probate “three . . . years earlier[.]” However, the record on appeal

shows the probate court issued its order admitting the 2006 Will to probate as a muniment of title


the will.” See Brown v. Traylor, 210 S.W.3d 648, 661 (Tex.App. – Houston [1st Dist.] 2006, no pet.) (quoting
Zaruba v. Schumaker, 178 S.W.2d 542, 543 (Tex.Civ.App. – Galveston 1944, no writ)).
                                                     6
on June 2, 2010, and Lorenzo’s will contest was filed on April 12, 2011, less than two years after

the 2006 Will was admitted to probate. Consequently, the contest of the 2006 Will was timely

filed and was properly before the probate court.

       Torres also complains that the probate court erred in finding the 2006 Will invalid on a

basis other than the basis expressly raised in the will contest. While the purpose of the trial of the

will contest was to determine whether the 2006 Will was invalid based on Romo’s testamentary

incapacity and as a result of undue influence, the trial court’s determination that the 2006 Will was

invalid for other reasons provides no basis for granting Torres relief, because only a valid will can

be probated. See In re Estate of Livingston, 999 S.W.2d at 876; Guthrie, 934 S.W.2d at 829.

Although not expressly stated, it is evident based on the record before us that the probate court

determined from the evidence that both witnesses failed to subscribe their names to the attestation

page of Romo’s 2006 Will in Romo’s presence as required for both a valid will and a self-proving

affidavit. See TEX. EST. CODE ANN. § 251.051(3) (West 2014) (will must be attested by two or

more credible witnesses who are at least 14 years of age and subscribe their names to will in their

own handwriting in testator’s presence); see also id. at §§ 251.104(e) (West 2014) (requiring

self-proving affidavit to state that will was signed by testator in presence of witnesses); 251.1045

(West Supp. 2016) (same). Finding no error, we overrule Issue One.

       In Issue Two, Torres complains the trial court erred in granting a directed verdict after

hearing the testimony of only one of her eight witnesses who were present and ready to testify.

Torres has failed to preserve this issue for our review. Torres did not seek to make an offer of

proof of the testimony of any of her remaining witnesses, nor did she inform the probate court of

the substance of their expected testimony. Lopez was the only witness Torres called during trial


                                                   7
of the will contest. When Torres sought to make an offer of proof, she called only one additional

witness, Giner, and the trial court considered Giner’s testimony in reaffirming its directed verdict.

At that point, Torres did not inform the probate court that she wished to call any other witness for

her offer of proof, nor did she attempt to show what testimony the other witnesses would have

provided.

       First, Torres failed to preserve error because she did not make a request at trial to present

any additional testimony, nor did she complain to the trial court that she had additional witnesses

who could present testimony relevant to the execution of the will. See TEX. R. APP. P. 33.1(a) (to

preserve a complaint for appeal, a party must show, in part, that “the complaint was made to the

trial court by a timely request, objection, or motion”).

       Second, to preserve a claim of error regarding a trial court’s exclusion of evidence, the

party must inform the trial court of the substance of that evidence by an offer of proof, unless the

substance was apparent from the context. TEX. R. EVID. 103(a)(2); see Bobbora v. Unitrin Ins.

Servs., 255 S.W.3d 331, 334 (Tex.App. – Dallas 2008, no pet.) (to preserve error concerning

exclusion of evidence, complaining party must actually offer evidence and secure adverse ruling).

In the absence of an offer of proof, any error in excluding the testimony of the uncalled witnesses

is not preserved for review. See Katy Intern., Inc. v. Jinchun Jiang, 451 S.W.3d 74, 96 (Tex.App.

– Houston [14th Dist.] 2014, pet. denied); Bobbora, 255 S.W.3d at 334.

       Even if we were able to discern from the record the general nature of the testimony of

Torres’ proposed witnesses, without an offer of proof, we are unable to determine whether the trial

court’s alleged exclusion of the evidence was harmful.          To preserve error concerning the

exclusion of evidence, the complaining party must actually offer the evidence and secure an


                                                  8
adverse ruling from the court. Perez v. Lopez, 74 S.W.3d 60, 66 (Tex.App. – El Paso 2002, no

pet.); see Johnson v. Garza, 884 S.W.2d 831, 834 (Tex.App. – Austin 1994, writ denied). While

the reviewing court may be able to discern from the record the nature of the evidence and the

propriety of the trial court’s ruling, without an offer of proof, we can never determine whether

exclusion of the evidence was harmful. See Perez, 74 S.W.3d at 66-67; see also In re A.M., 418

S.W.3d 830, 840 (Tex.App. – Dallas 2013, no pet.); Anderson v. Higdon, 695 S.W.2d 320, 325

(Tex.App. – Waco 1985, writ ref’d n.r.e.) (without an offer of proof of the excluded testimony,

“there is nothing before the appellate court to show reversible error in the trial court’s ruling”).

Thus, when evidence is excluded by the trial court, the proponent of the evidence must preserve

the evidence in the record in order to complain of the exclusion on appeal. TEX. R. EVID.

103(a)(2); Perez, 74 S.W.3d at 66; see Weng Enterprises, Inc. v. Embassy World Travel, Inc., 837

S.W.2d 217, 221 (Tex.App. – Houston [1st Dist.] 1992, no writ).

       Because Torres failed to request that the trial court allow her to offer additional proof and

failed to make an offer of proof regarding the anticipated witness testimony, she has not preserved

this issue for our consideration. Issue Two is overruled.

                                         CONCLUSION

       The trial court’s judgment is affirmed.


                                              STEVEN L. HUGHES, Justice
November 3, 2016

Before McClure, C.J., Hughes, J., and Larsen, J. (Senior Judge)
Larsen, J. (Senior Judge), sitting by assignment




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