                            NUMBER 13-13-00268-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

OVIDIO GARCIA JR.,                                                         Appellant,

                                           v.

OMAR ESCOBAR, RAMON DE LA CRUZ
AND UNKNOWN PERSONS AND/OR ENTITIES,                                       Appellees.


                  On appeal from the 93rd District Court of
                         Hidalgo County, Texas.


                        MEMORANDUM OPINION
              Before Justices Rodriguez, Garza, and Perkes
                 Memorandum Opinion by Justice Garza
      In this restricted appeal, appellant Ovidio Garcia Jr., pro se, challenges the trial

court’s summary judgment rendered in favor of appellees, Omar Escobar et al., in a

declaratory judgment action. We affirm.
                                             I. BACKGROUND

         In 1991, Garcia and Eustorgio Guzman Resendez were indicted for the capital

murders of Ruben Piña, Gregorio Piña, Alejandro Garcia, and Juan Arguelles. Garcia

pleaded guilty to capital murder and was sentenced to life imprisonment.1 Garcia v. State,

75 S.W.3d 493, 495 (Tex. App.—San Antonio 2002, pet. ref’d) (affirming conviction).

         Garcia and Resendez filed the instant declaratory judgment action on January 20,

2011, in the 93rd Judicial District Court of Hidalgo County, Texas. 2 They sought a

declaration

         stating that Defendants, Starr County Justice of the Peace Antonia Treviño,
         Starr County Justice of the Peace Ramon de la Cruz and Starr County
         District Attorney Heriberto Silva, have a duty, pursuant to Texas Code of
         Criminal Procedure Chapter 49, to exhume the remains alleged to have
         been those of Ruben Piña, Gregorio Piña, Alejandro Garcia and Juan
         Arguelles and to re-open an inquest, in conjunction thereto, for identification
         and investigatory purposes . . . .

The petition alleged that the remains of the four victims were found “inside a burned

vehicle” in Starr County, Texas,3 and that the remains “had no hands, no legs and no

distinguishable features” and were “burned beyond recognition.” Garcia and Resendez

argued that an inquest should be reopened because an initial inquest was not performed



         1 Garcia pleaded guilty in 1992 to the murder of two of the victims as alleged in the indictment, and
the murder counts as to the remaining victims were dismissed. Garcia v. State, 75 S.W.3d 493, 496 (Tex.
App.—San Antonio 2002, pet. ref’d). Resendez was convicted of capital murder after a trial and was
sentenced to life imprisonment. Resendez v. State, 860 S.W.2d 605, 606 (Tex. App.—Corpus Christi 1993,
pet. ref’d).

         The lawsuit named Antonia Treviño, Ramon de la Cruz, Heriberto de la Silva, and “Unknown
         2

Persons and/or Entities” as defendants. Escobar was not named as a defendant in the original petition, but
was named as a defendant in an amended petition filed after summary judgment was rendered. The original
petition—which was signed by Garcia and Resendez—named Garcia, Resendez and “Unknown Persons
and/or Entities” as plaintiffs.

         3   The petition stated that venue was proper in Hidalgo County because the remains are buried
there.


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and because the remains “have not been identified as that of human origin, male or

female much less as those of specific individuals as it is alleged in the indictment . . . .”

See TEX. CODE CRIM. PROC. ANN. ch. 49 (West Supp. 2011).4

        Garcia also filed a motion for notice by publication, which the trial court granted by

order dated March 2, 2011. On June 6, 2011, Garcia filed a “Motion to Compel Issuance

of Citation” asserting the following:

        The District Cler[k] erroneously issued citation by notice by publication to
        the KNOWN Defendants named in the petition for declaratory [judgment].
        Plaintiff [l]ater requested that the District Clerk issued [sic] citation pursuant
        to Texas Rule of Civil Procedure 106. The District Clerk has failed to issue
        citation and the Defendants have not been served in this case.

The record does not reflect that the trial court ruled on this motion. Garcia then filed two

petitions for writ of mandamus with this Court seeking to compel the trial court to rule on

the motion. We denied the petitions. See In re Garcia, No. 13-12-00485-CV, 2012 WL

3136113 (Tex. App.—Corpus Christi Aug. 1, 2012, orig. proceeding) (mem. op. per

curiam); In re Garcia, No. 13-11-00731-CV, 2011 WL 5855110 (Tex. App.—Corpus

Christi Nov. 22, 2011, orig. proceeding) (mem. op. per curiam).

        Escobar, the District Attorney for the 229th Judicial District, then filed an answer

and motion for summary judgment on behalf of the defendants on January 11, 2013. The

motion argued that Garcia’s petition was moot under the doctrine of res judicata. In



        4  Under chapter 49 of the code of criminal procedure, “[a] justice of the peace shall conduct an
inquest into the death of a person who dies in the county served by the justice if,” among other things, “the
body or a body part of a person is found, the cause or circumstances of death are unknown, and . . . the
person is unidentified.” TEX. CODE CRIM. PROC. ANN. art. 49.04(a)(3)(B) (West 2006). “A justice of the
peace may reopen an inquest if, based on information provided by a credible person or facts within the
knowledge of the justice of the peace, the justice of the peace determines that reopening the inquest may
reveal a different cause or different circumstances of death.” Id. art. 49.041 (West 2006). “If a body or
body part subject to investigation . . . is interred and an authorized person has not conducted an inquest
required under this subchapter, a justice of the peace may direct the disinterment of the body or body part
in order to conduct an inquest.” Id. art. 49.09(a) (West 2006).

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particular, Escobar noted that the San Antonio court of appeals ruled in a 2010 case

involving the same underlying offense that Garcia’s request for DNA testing pursuant to

code of criminal procedure article 64 was properly denied. See Garcia v. State, 327

S.W.3d 269, 271–73 (Tex. App.—San Antonio 2010, pet. ref’d). The San Antonio court

noted that the term “identity” as used in article 64.03(a)(1)(B)—which permits DNA testing

only if, among other requirements, “identity was or is an issue in the case,” see TEX. CODE

CRIM. PROC. ANN. art. 64.03(a)(1)(B) (West Supp. 2011)—“means the identity of the

perpetrator, not the identity of the victim.”           Garcia, 327 S.W.3d at 273.             Because

uncertainty as to the identity of the victims—not the perpetrator—was the basis of

Garcia’s motion, he was not entitled to DNA testing. See id. Escobar argued that this

ruling compels summary judgment dismissing Garcia’s declaratory judgment action.

        Escobar also filed a separate motion to quash citation on January 11, 2013 making

the same argument as his motion for summary judgment. The two motions, which were

verified by an assistant district attorney, stated that Garcia previously filed a motion to

exhume the remains of the victims “as a companion” to the motion for DNA testing at

issue in the San Antonio case. According to Escobar, Garcia’s prior motion argued that,

“because of the burned condition of the [victims’ remains], the State, as a matter of fact

or law, or both, could not prove beyond a reasonable doubt that [Garcia] murdered the

three (3) persons he confessed to having murdered by way of a jury trial in the early

1990’s.”5 Escobar argued that Garcia “did not raise this claim on direct appeal, and the

Plaintiffs’ purported 2011 original Petition for declaratory judgment does not show this



        5
        As noted, a 2002 opinion by the San Antonio court stated that Garcia in fact pleaded guilty to two
murders and two other murder counts were dismissed. See Garcia, 75 S.W.3d at 496.


                                                    4
Court how it can be properly[ ]used to establish legal insufficiency of evidence” or “to

establish one’s right to an exhumation under any extant theory of law.”

        On January 14, 2013, the trial court rendered two separate orders: one granting

Escobar’s summary judgment motion and another granting Escobar’s motion to quash

citation.6

        Garcia filed a notice of restricted appeal on May 22, 2013, specifically challenging

the trial court’s order granting Escobar’s motion to quash citation. The notice states that

Garcia and Resendez were not served with a copy of the motion to quash and that the

trial court did not notify them that the “motion to quash was filed and would be considered

and ruled upon.”7 Garcia filed an unsworn “Affidavit and/or Bill of Exceptions” on June

14, 2013 in which he stated that he first received a copy of Escobar’s motion to quash

citation on January 23, 2013, some nine days after the motion was granted.


        6
        On February 28, 2013, Garcia filed a motion for default judgment based on Texas Rule of Civil
Procedure 122, which states:

        If the citation or service thereof is quashed on motion of the defendant, such defendant
        shall be deemed to have entered his appearance at ten o’clock a.m. on the Monday next
        after the expiration of twenty (20) days after the day on which the citation or service is
        quashed, and such defendant shall be deemed to have been duly served so as to require
        him to appear and answer at that time, and if he fails to do so, judgment by default may be
        rendered against him.

TEX. R. CIV. P. 122. Garcia argued that, since the trial court’s order quashing citation was rendered on
January 14, 2013, the defendants were “deemed to have been duly served” at 10:00 a.m. on Monday,
February 4, 2013. Garcia further argued that default judgment should be awarded in his favor because the
defendants did not file an answer after the motion to quash was granted.

         The record contains no ruling by the trial court on Garcia’s motion for default judgment; nor does it
show that Garcia complained about the trial court’s failure to rule. Accordingly, to the extent Garcia
contends on appeal that the trial court should have granted default judgment in his favor, no issue has been
preserved for our review. See TEX. R. APP. P. 33.1(a)(2) (“As a prerequisite to presenting a complaint for
appellate review, the record must show that . . . the trial court: (A) ruled on the request, objection, or motion,
either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining
party objected to the refusal.”).

        7On appeal, Escobar states that Garcia filed a motion on July 26, 2013, for leave to file an amended
notice of restricted appeal in which Garcia also challenged the trial court’s order granting summary
judgment. No such motion or amended notice appears in the record.

                                                        5
                               II. IDENTITY OF APPELLANTS

       As an initial matter, we note that Garcia, the only signatory to the notice of appeal

and appellant’s brief, purports to bring this appeal on behalf of himself and Resendez, his

co-plaintiff. Garcia is not an attorney and is appearing pro se. Accordingly, Garcia may

not seek relief on behalf of Resendez. See, e.g., TEX. GOV’T CODE ANN. § 81.101–.102

(West 2005) (defining unauthorized practice of law); TEX. PENAL CODE ANN. § 38.123

(West 2003) (explaining that the unauthorized practice of law is a Class A misdemeanor);

Crain v. Unauthorized Practice of Law Comm. of the Sup. Ct. of Tex., 11 S.W.3d 328,

332–34 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (explaining that a person who

is not a licensed attorney may not represent other persons in legal matters); see also In

re Garcia, 2011 WL 5855110, at *1. Resendez is therefore not a party to this appeal.

                                 III. RESTRICTED APPEAL

       To attack an order by restricted appeal, the appellant must show: (1) he was a

party who did not participate in the hearing that resulted in the judgment complained of;

(2) he filed a notice of appeal within six months after the order was signed; (3) he did not

timely file a post-judgment motion or request findings of fact and conclusions of law; and

(4) error is apparent on the face of the record. TEX. R. APP. P. 26.1(c), 30; Tex. Dep’t of

Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.—Corpus Christi 2007, no pet.).

                                      IV. DISCUSSION

       On appeal, Garcia identifies three issues: (1) the trial court erred by granting

summary judgment with no notice to him; (2) his suit is not barred by mootness, res

judicata, or collateral estoppel; and (3) the trial court erred by granting Escobar’s motion

to quash citation.



                                             6
        The only notice of appeal that appears in the record, Garcia’s May 22, 2013 notice

of restricted appeal, specifically limits the scope of the appeal to the trial court’s order

granting Escobar’s motion to quash citation. No appeal has been perfected regarding the

trial court’s order granting Escobar’s motion for summary judgment. Accordingly, we

overrule Garcia’s first and second issues.

        By his third issue, Garcia appears to argue that the trial court erred in granting

Escobar’s motion to quash citation because “[i]t is well established that the only relief

available under [Texas Rule of Civil Procedure] 122 is additional time to answer; dismissal

of the action is not available.”8 Onda Enters. v. Pierce, 750 S.W.2d 812, 813 (Tex. App.—

Tyler 1988, no writ). However, the trial court’s order granting the motion to quash did not

state that Garcia’s action was dismissed. In any event, Garcia has not shown that there

was a hearing on the motion, that he was not provided notice of any such hearing, or that

he was entitled to a hearing. We therefore cannot say that the first element required in a

restricted appeal has been met with respect to the motion to quash citation.                             See

Fredricks, 235 S.W.3d 275, 278. Accordingly, we overrule Garcia’s third issue.

                                             V. CONCLUSION

        Because no error is apparent on the face of the record, we affirm the trial court’s



          8 Garcia does not complain on appeal that the trial court’s order granting the motion to quash

citation was erroneous because Garcia was not served with the motion. We note that, even if he did make
that argument, it would lack merit. “An appellant who alleges error apparent from the face of the record
due to the absence of notice carries a heavy burden because the record will usually be barren of affirmative
proof of the error claimed.” Robert S. Wilson Invs. No. 16 Ltd. v. Blumer, 837 S.W.2d 860, 861 (Tex. App.—
Houston [1st Dist.] 1992, no writ); see Prihoda v. Marek, 797 S.W.2d 170, 171 (Tex. App.—Corpus Christi
1990, writ denied) (en banc); see also In re S.T.A., No. 13-10-00180-CV, 2011 WL 1204009, at *1 (Tex.
App.—Corpus Christi Mar. 31, 2011, no pet.) (mem. op.). As noted, Garcia filed a document entitled
“Plaintiff’s Affidavit and/or Bill of Exceptions” on June 14, 2013, stating that he was not timely served with
Escobar’s motion to quash citation. However, this document was not sworn and did not comply with the
requirements of unsworn declarations as provided by statute. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 132.001(c)(2), (e) (West Supp. 2011). The document therefore cannot be considered in evaluating
whether error was shown on the face of the record.

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judgment. See Diles v. Henderson, 76 S.W.3d 807, 811 (Tex. App.—Corpus Christi 2002,

no pet.) (affirming judgment on restricted appeal upon concluding that no error was

apparent on the face of the record); LCS Corr. Serv. Inc. v. Chavera, No. 13-12-00591-

CV, 2013 WL 1384884, at *3 (Tex. App.—Corpus Christi Apr. 4, 2013, no pet.) (mem.

op.) (same); but see In re Baby Girl S., 353 S.W.3d 589, 591 (Tex. App.—Dallas 2011,

no pet.) (dismissing restricted appeal for lack of jurisdiction upon concluding that no error

was apparent on the face of the record).




                                                  DORI CONTRERAS GARZA,
                                                  Justice

Delivered and filed the
20th day of February, 2014.




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