Order issued October 29, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-19-00287-CV

———————————

XOCHYTL DIANE GREER, Appellant

V.

WESLEY MICHAEL MELCHER, Appellee

On Appeal from the 245th District Court

Harris County, Texas

Trial Court Case No. 2017-41808

MEMORANDUM ORDER

Appellant, Xochytl Diane Greer, has filed a motion to review the trial court’s 

order sustaining the court reporter’s contest to Greer’s sworn statement of inability 

to afford payment of court costs.1

 

1 See TEX. R. CIV. P. 145 (“Payment of Costs Not Required”).
2

We grant Greer’s motion to review and affirm the trial court’s order.

Background

Greer has filed a notice of appeal of the trial court’s order, adjudicating 

parentage, establishing conservatorship and visitation, and requiring payment of 

child support, in a suit affecting the parent-child relationship. After filing her notice 

of appeal, Greer filed in the trial court a sworn statement of inability to afford 

payment of court costs.2

In her statement, Greer stated that she was not represented by legal aid, did 

not apply for such representation, and she did not receive needs-based public 

benefits, but she received monthly net income as an attorney at a law firm of $4,408. 

Greer listed an additional source of monthly income of $3,850 in child support. 

Greer listed her assets including a home that she valued at $2,000,3 a Nissan Armada

sport utility vehicle that she valued at negative $5,000,4 and a bank account with zero 

funds. And Greer listed monthly expenses, including a house payment of $1,806, a 

car payment of $912, a credit card payment of $1,224, and a student loan payment 

 

2 See id.

3 During a hearing on the court reporter’s contest to Greer’s statement, Greer agreed 

that the Harris County Appraisal District records show that her home has a value of 

$200,000, but she stated that she listed its value at $2,000 because that is the value 

of the property less the amount she still owes on it.

4 Greer did not provide the actual value of the Nissan Armada, but listed a negative 

amount representing the value of the car less the amount that she owes on it.
3

of $701, for total expenses exceeding her monthly income. Based on these expenses, 

Greer claimed that she could not afford to pay court costs.

A court reporter, Barbara K. Nagji, filed a contest to Greer’s statement, and 

the trial court held a hearing at which Greer testified. During the hearing, Greer 

admitted that she left out assets and other sources of funds in her statement, though 

she claimed that the statement was accurate when it was made. For instance, Greer 

testified that she left out a second vehicle, a Chevrolet truck, the value of which she 

claimed to be $15,000. However, Greer also stated that she owed more on the truck 

than it was worth. Greer also admitted that she had failed to include in her statement 

a tax refund, which in previous years had been in excess of $6,000, and any value 

related to her 401(k) account. Greer admitted that she made a monthly, voluntary 

contribution of 3% of her gross salary5to a 401(k) account. Greer further testified 

that she had received a performance bonus of more than $3,000, but claimed that she 

did not include it in her statement because it was not guaranteed. 

Greer also stated that she was voluntarily supporting a nephew, for whom she 

had previously received child support payments from the nephew’s father, but the 

child support payments had stopped when the nephew turned eighteen years old. 

Greer also admitted that she had received plastic surgery valued at $25,000–$35,000, 

but she claimed that she did not pay for her surgery because the surgeon accepted 

 

5 Greer estimated her gross monthly salary to be approximately $7,000.
4

her agreement to provide publicity in lieu of payment. Although various media 

sources stated that Greer only received her plastic surgery at a discounted rate and 

not for free, Greer insisted that those accounts were inaccurate. Finally, Greer 

admitted to having made material misrepresentations of fact to the Office of the 

Attorney General that were later incorporated into an order.

On May 3, 2019, the trial court signed an order sustaining the court reporter’s 

contest, making numerous findings of fact, and ordering Greer to pay court costs. 

Ultimately, the court concluded that Greer did not lack funds to pay for court costs 

based on the following: (1) the receipt of a tax refund, (2) an additional vehicle that 

could be sold, (3) an ability to increase her income by ceasing her voluntary 401(k) 

contribution, and (4) an ability to increase her income by ceasing voluntary support 

of her nephew. The trial court further concluded that Greer’s representations 

regarding her financial condition were not credible given the following: (1) her 

claimed lack of knowledge about certain facts, (2) her admission that her statement 

was inaccurate and omitted information, and (3) her admission that she had made 

material misrepresentations to the Office of the Attorney General that was 

subsequently incorporated into an order. 

Thereafter, Greer filed a motion in this Court requesting that we review the 

trial court’s order. In her motion, she raises four grounds for reversing the trial 

court’s order: (1) the court reporter’s contest to her statement was defective, (2) the 
5

court reporter’s contest was premature as Greer had not requested the reporter’s 

record, (3) the trial court erred in excluding evidence, and (4) the trial court erred in 

concluding that she had not established her inability to afford payment of court costs. 

Inability to Afford Payment of Court Costs

Texas Civil Rule of Procedure 145 requires a party claiming an inability to 

afford payment of court costs to file a statement of inability. See TEX. R. CIV. P. 145 

(“Payment of Costs Not Required”). The party must provide evidence in the 

statement, or in the attachments to it, that she does not have the funds to afford 

payment of court costs. TEX. R. CIV. P. 145(a), (e). In deciding whether a party is 

indigent or unable to afford payment of court costs, the trial court determines 

whether the preponderance of the evidence shows that she is unable, despite a good 

faith effort, to pay all or part of the costs. See Moreno v. Perez, 363 S.W.3d 725, 742 

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (quoting Higgins v. Randall Cnty. 

Sheriff’s Off., 257 S.W.3d 684, 686–87 (Tex. 2008)). However, if a party has assets 

from which she could secure funds to pay court costs without depriving her family 

of the necessities of life, she should be required to dispose of those assets, or 

mortgage them to pay court costs or give security for costs. See White v. Bayless, 40 

S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied) (failure to use assets 

to provide funds to pay for court costs was “opposite of a good-faith effort”); see 

also Balistreri-Amrhein v. AHI, Nos. 05-09-01377-CV & 05-10-01347-CV, 2011 
6

WL 2624146, at *3 (Tex. App.—Dallas July 6, 2011, no pet.) (mem. op.) (house and 

car were assets from which party could secure necessary funds for costs of appeal). 

We review a trial court’s order under Rule 145 for an abuse of discretion. 

Moreno, 363 S.W.3d at 735. The trial court abuses its discretion when it acts without 

reference to any guiding rules or principles; the facts and law permit only one 

decision, which is the opposite of the trial court’s decision; or the ruling is so 

arbitrary and unreasonable as to be clearly wrong. See id.; Jackson v. Tex. Bd. of 

Pardons & Paroles, 178 S.W.3d 272, 275 (Tex. App.—Houston [1st Dist.] 2005, no 

pet.).

Court Reporter’s Contest Sufficient

Greer first argues that the contest to her statement filed by the court reporter 

was inadequate and improper because she cited to the wrong rule. The court reporter, 

in her contest, cited to Texas Rule of Appellate Procedure 20.1, which was the 

applicable rule concerning a party’s indigence before certain rule changes in 2016. 

See TEX. R. APP. P. 20.1 cmt (Texas Rule of Appellate Procedure 20.1 “has been 

rewritten so that it only governs filing fees and any other fee charged by the appellate 

court”; Texas Rule of Civil Procedure 145 “governs a party’s claim that the party is 

unable to afford costs for preparation of the appellate record”); Basaldua v. Hadden, 

298 S.W.3d 238, 241 (Tex. App.—San Antonio 2009, no pet.) (decided before rules 

were amended in 2016 and indicates affidavit of indigence and contest were filed 
7

pursuant to Texas Rule of Appellate Procedure 20.1). Texas Rule of Civil Procedure 

145 now governs when a party claims an inability to afford the payment of costs of 

a record on appeal. See TEX. R. CIV. P. 145(a), (c); see also TEX.R. APP. P. 20.1 cmt. 

In any event, the court reporter’s citation to Rule 20.1 in her contest does not prevent 

the trial court from addressing the contest because the burden of showing an inability 

to afford payment of court costs is on Greer, as she was the party who filed a 

statement. See In re Sosa, 980 S.W.2d 814, 815 (Tex. App.—San Antonio 1998, 

orig. proceeding); see also TEX. R. CIV. P. 145(f)(5).

Contest May Be Filed Even if Record Not Yet Requested

Greer next argues that the trial court erred in sustaining the court reporter’s 

contest to her statement because Greer had not yet requested the reporter’s record. 

Greer admits that she inquired about the cost of the record but asserts that she had 

not yet requested it and “does not need th[e] record for appeal.” This argument has 

no merit.

Greer filed a statement of inability on April 18, 2019, and the court reporter 

filed her contest soon thereafter. Once a statement is filed, Rule 145 permits a court 

reporter to contest it. See TEX. R. CIV. P. 145(f)(3). Rven if Greer had not yet 

requested a reporter’s record, the filing of her statement indicated that she was 

invoking Rule 145; and thus, the court reporter’s filing of a contest in response to 

Greer’s statement was appropriate. See id.
8

No Error in Excluding of Evidence

Greer next argues that the trial court erred in refusing to permit her to 

introduce evidence at the hearing. Greer attaches to her motion the evidence that she 

wanted to introduce at the hearing, which includes spreadsheets that she had created, 

showing monthly expenses, and two recent bank statements showing withdrawals 

greater than her monthly income and reflecting the extent of her credit card and 

student loan debt. 

Exclusion of evidence is reviewed under an abuse-of-discretion standard. See 

Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 142 (Tex. 2016). To show a trial court 

abused its discretion in excluding evidence, the party must preserve error by offering 

the evidence and obtaining an adverse ruling. See TEX. R. EVID. 103(a)(2); TEX. R.

APP. P. 33.2; In re Marriage of Harrison, 557 S.W.3d 99, 121 (Tex. App.—Houston 

[14th Dist.] 2018, pet denied). We must uphold the trial court’s ruling excluding this 

evidence if there is any legitimate basis for the ruling. See Owens-Corning Fiberglas 

Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). If the trial court excludes evidence, 

the party must make an offer of proof, unless the substance of the evidence is 

apparent from the context. TEX.R. EVID. 103(a)(2). The primary purpose of the offer 

of proof is to enable the reviewing court to determine whether the exclusion of 

evidence was erroneous and, if so, whether it was harmful. Lone Starr 
9

Multi-Theatres, Ltd. v. Max Interests, Ltd., 365 S.W.3d 688, 703 (Tex. App.—

Houston [1st Dist.] 2011, no pet.). 

Greer, who was representing herself at the hearing on the court reporter’s 

contest, stated on the record that she had brought with her “a shorthand rendition” 

which she had marked as an exhibit. She did not explain what the “shorthand 

rendition” contained. Greer stated that she was also offering into evidence bank 

statements and proof of an attempt to take out a loan.

Although Greer made no formal offer of proof in the trial court, she described 

the evidence as proof that her expenses exceeded her income. The trial court 

sustained the objections to Greer’s offer of documentary evidence and to her attempt 

to read some of the unadmitted evidence into the record. Without an offer of proof, 

we cannot determine what information the “shorthand rendition” included. Although 

Greer described the evidence she intended to offer as further proof that her expenses 

exceeded her income, the trial court sustained the objections to Greer’s evidence on 

the grounds that it was not attached to her statement, it violated the best evidence 

rule, and it was cumulative.

Greer has not established that the trial court abused its discretion in excluding 

her evidence. She has not shown that the evidence she sought to introduce differed 

from that contained in her statement. The Texas Rules of Evidence permit exclusion 

of the “needless presentation of cumulative evidence.” TEX. R. EVID. 403. The 
10

inclusion of the modifier “needless” necessarily means that the mere fact that the 

evidence is cumulative is not decisive. See In re N.R.C., 94 S.W.3d 799, 807 (Tex. 

App.—Houston [14th Dist.] 2018, pet. denied). Instead, the trial court must 

determine whether the excluded evidence would have added “substantial weight to 

the complainant’s case.” Id. Because the purported “proof that her expenses 

exceeded her income” that Greer attempted to offer into evidence was, based on 

Greer’s own admission, already included in her statement, the evidence would not 

have added substantial weight to her case; and, thus, the trial court did not err in 

excluding Greer’s evidence on the ground that it was cumulative. See JBS Carriers, 

Inc. v. Washington, 564 S.W.3d 830, 840 (Tex. 2018) (exclusion of evidence is likely 

harmless if evidence was cumulative).

Under the “best evidence” rule, an original writing is “required to prove its 

content” unless the rules permit otherwise. TEX. R. EVID. 1002. This rule applies 

only if a party is seeking to prove the contents of a document. See White v. Bath, 825 

S.W.2d 227, 231 (Tex. App.—Houston [14th Dist.] 1992, writ denied). But even if 

the best evidence rule cannot be used to exclude evidence related to a statement of 

inability to afford payment of court costs, Greer has not shown that any error in 

excluding her evidence was harmful. See Gunn v. McCoy, 554 S.W.3d 645, 668 

(Tex. 2018) (holding excluded evidence likely harmless if cumulative or, if after 

reviewing entire record, it did not likely cause rendition of improper judgment);
11

LBSP, Inc. v. Forest Dale, Inc., No. 05-14-01295-CV, 2016 WL 3165621, at *5 

(Tex. App.—Dallas June 7, 2016, no pet.) (mem. op.) (holding no harm shown in 

exclusion of evidence summarizing original contract based on best evidence rule 

because original contract was in evidence).

No Error in Trial Court’s Conclusion Greer Failed to Establish Inability to 

Afford Payment of Court Costs 

Finally, Greer argues that the trial court erred in concluding that she had not 

established her inability to afford payment of court costs because the court failed to 

“look at [her] expenses and debts and only made speculative [and inaccurate] 

findings.” In doing so, Greer challenges all but one of the specific fact findings on 

which the trial court expressly based its conclusion.

The trial court concluded that Greer had not established her inability to afford 

payment of court costs based on five grounds: (1) Greer had available funds from 

receipt of a tax refund, (2) Greer had an ability to obtain funds by selling a vehicle, 

(3) Greer had an ability to increase her income by ceasing her voluntary 401(k) 

contribution, (4) Greer had an ability to increase her income by ceasing voluntary 

support of her nephew, and (5) Greer lacked credibility. In holding that Greer’s 

representations regarding her financial condition were not credible, the trial court 

emphasized: (1) Greer’s claimed lack of knowledge about certain facts, (2) her 

admission that her statement was inaccurate and omitted information, and (3) her 
12

admission that she had made material misrepresentations to the Office of the 

Attorney General that were subsequently incorporated into an order.

Significantly, to establish that the trial court abused its discretion and thus 

erred in concluding that Greer had not established her inability to afford payment of 

court costs, Greer has to show in her motion that the five grounds relied on by the 

trial court did not support its ultimate conclusion. See Britton v. Tex. Dep’t of Crim. 

Justice, 95 S.W.3d 676, 680–81 (Tex. App.—Houston [1st Dist.] 2002, no pet.) 

(appellant must attack all independent bases or grounds that fully support a 

complained-of ruling or judgment; if appellant does not do so, we must affirm trial

court’s ruling because no abuse of discretion). However, a review of Greer’s motion 

shows that she did not challenge all of the trial court’s grounds for concluding that 

she had not shown an inability to afford payment of court costs. Specifically, Greer 

does not challenge the trial court’s finding about her voluntary 401(k) contribution. 

Absent a challenge to this basis, we cannot conclude that the trial court abused its 

discretion. See id.

Moreover, we note that Greer has not challenged the trial court’s conclusion 

that she lacked credibility. Greer argued, in evaluating credibility, that the trial court 

could not ignore evidence establishing her inability to afford payment of court costs, 

particularly when that evidence was not rebutted, citing Koehne v. Koehne, 

No. 01-17-00016-CV, 2017 WL 2375789 (Tex. App.—Houston [1st Dist.] June 1, 
13

2017, order). In Koehne, the trial court ignored evidence that the party was 

unemployed, had no assets, and was unable to obtain loans, and thus, this Court held 

that the trial court’s conclusion that the party was not indigent could not be supported 

on unsubstantiated concerns that he lacked credibility. Koehne, 2017 WL 2375789, 

at *3–4.

But here, the trial court included specific reasons for concluding that Greer 

lacked credibility and Greer has not challenged those reasons. Further, the evidence 

in the record shows that Greer had filed an inaccurate and incomplete statement, yet 

Greer, in her testimony, stated that her statement was accurate. Greer also admitted 

that she had not included other income and assets, such as a bonus, a tax refund 

(which had been substantial in past years), and a second vehicle. Moreover, Greer 

admitted that she had made a misrepresentation to the Office of the Attorney General 

that was incorporated into an order. 

We must defer to the fact-finder’s determination concerning credibility if it is 

reasonable. See id. at *2. Inconsistent statements and admitted inaccuracies in a 

statement of inability to afford payment of court costs support a trial court’s 

credibility concerns. See In re A.L.S., No. 05-14-01104-CV, 2014 WL 4674277, at 

*2 (Tex. App.—Dallas Sept. 22, 2014, no pet.) (mem. op.). Here, the trial court based 

its credibility determination on facts in the record, i.e., Greer’s admitted 

misrepresentations to the Office of the Attorney General, Greer’s filing of an 
14

admittedly inaccurate statement, and Greer’s inability to recall her most recent bonus 

or tax refund. These inaccuracies, admitted misrepresentation, and selective 

recollections support the reasonableness of the trial court’s credibility determination 

and no error is shown.

Conclusion

We affirm the trial court’s order. 

PER CURIAM

Panel consists of Justices Kelly, Hightower, and Countiss.