NUMBER 13-09-00579-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

IN THE ESTATE OF MYRTLE MARIE BROOKS, DECEASED

 

On appeal from the County Court at Law No. 2

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides

This is a will contest case. By seven issues, pro se appellant, Melta 

Brooks-Cannon, contends the trial court erred when it: (1) failed to recognize the last 

will and testament of her grandmother, Myrtle Marie Brooks; (2) allowed jurors to hear 

testimony about Myrtle‘s physical and mental capacity from a non-expert witness; (3) 

allowed Melta‘s medical history and certain character evidence to be admitted into 
2

evidence; (4) failed to provide clear instructions to the jurors regarding the jury charge; 

(5) appointed a guardian ad litem; (6) allowed testimony regarding alleged undue 

influence; and (7) did not accept certain medical records regarding Myrtle‘s health and 

well-being into evidence. We modify the trial court‘s judgment and affirm as modified.

I. BACKGROUND

Myrtle died at the age of ninety-three in Corpus Christi, Texas. Myrtle was 

survived by two sons: Henry Clayton Brooks and Winston Gene Brooks. After their 

mother‘s death, Henry and Winston jointly filed an application to be dependent 

co-administrators and for issuance of letters of dependent administration. In the 

application, Henry and Winston represented that they were Myrtle‘s only living children; 

their brothers Connie O‘Neal Brooks and Bobby Joe Brooks had pre-deceased their 

mother. Henry and Winston‘s motion also declared that Myrtle died without leaving a 

valid will and ―owned real and personal property . . . cash, bank accounts, an automobile, 

household furniture, and other personal effects of a probable value in excess of 

$50,000.‖ They sought to be joint co-administrators of her estate because there were at 

least two debts against the estate, including expenses for Myrtle‘s final illness. Henry 

and Winston were appointed co-administrators on October 24, 2006.

On January 11, 2007, Melta filed a motion for new trial. Melta is Myrtle‘s 

grand-daughter; her father was the late Connie, brother of Henry and Winston. In her 

motion, Melta contended that Myrtle had executed a valid will that named Melta the sole 

independent administrator of Myrtle‘s estate. Melta requested that the court set aside 
3

the order deeming Henry and Winston co-dependent administrators. In response to 

Melta‘s motion, Henry and Winston filed a second application to be appointed dependent 

co-administrators. In this second application, Henry and Winston re-urged that their 

mother died intestate and argued that Melta possessed an invalid will. In the 

alternative, they argued that if Melta in fact possessed a valid will that it was procured 

through undue influence. 

The trial court denied Melta‘s motion for new trial. However, pursuant to section 

83(a) of the Texas Probate Code, the court held a jury trial to consider the will Melta 

possessed, along with Henry and Winston‘s application, to determine whether Myrtle 

indeed died intestate. See TEX. PROB. CODE ANN. § 83(a) (West 2010).1 During the 

trial, Henry testified that Myrtle suffered a slip-and-fall in February 2004 which partially 

paralyzed the left side of her body. Upon her doctor‘s recommendation, the family 

admitted Myrtle to The Palms Center in Corpus Christi for rehabilitation and daily 

assisted life care after her fall. Myrtle was upset about this recommendation and 

wanted to simply return home. However, she was ultimately admitted for health 

reasons. 

 

1

 The statute provides as follows: 

If, after an application for the probate of a will or for the appointment of a general personal 

representative has been filed, and before such application has been heard, an application 

for the probate of a will of the decedent, not theretofore presented for probate, is filed, the 

court shall hear both applications together and determine what instrument, if any, should 

be admitted to probate, or whether the decedent died intestate.

TEX. PROB. CODE ANN. § 83(a) (West 2010) (emphasis added). 
4

Henry stated that he and his wife Ninfa visited his mother at The Palms daily, 

because they lived in Corpus Christi. His brother Winston lived in Harker Heights, 

Texas, which was about five hours away, so Winston could not visit as often. Henry 

soon began to worry about his mother‘s mental health when she mentioned seeing 

relatives who had already died and could not remember if she had eaten on a particular 

day. He stated that they never discussed a will because Myrtle said her boys would ―do 

what‘s right‖ and that her ―boys always [did] the right thing.‖ She treated all of her sons 

equally. Henry‘s wife, and Melta‘s aunt, Ninfa Salazar, corroborated this testimony. 

She testified that Myrtle told her that she did not need a will because ―everything was for 

her boys.‖

Henry testified that he learned his mother had executed a will approximately eight 

months before her death. He received a phone call from Winston informing him about 

the alleged will. He was ―in awe and shock‖ about the will‘s existence and believed that 

the will was his niece Melta‘s idea. He stated that his niece Melta acted ―strange‖ 

toward him when she first arrived from California to visit his ailing mother at The Palms. 

Shortly after that encounter, he found Melta at his mother‘s house reviewing Myrtle‘s car 

ownership papers and insurance policies. He soon became concerned about the 

purpose of Melta‘s visit when he called The Palms for an update on his mother‘s health 

and they refused to release information to him due to HIPAA laws.2 Apparently, Melta 

 

2 HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. Pub. L. No.

104-191, 110 Stat. 1936 (1996) (codified as amended at 42 U.S.C.A. §§ 1320d-1320d-8 (2007)). The law 

provides, among other things, federal protections for personal health information held by covered entities 
5

had had Myrtle sign a power of attorney which allowed only Melta and another cousin 

access to Myrtle‘s medical records and denied access to anyone else. Henry testified 

that Melta moved into his mother‘s home while Myrtle was recovering at The Palms and 

that he paid for repairs to the refrigerator and water heater at his mother‘s house during 

this time. He also loaned Melta his vehicle and gave her money for food. After 

Myrtle‘s death, Henry explained that someone from American Bank called him. The 

bank representative stated that Melta was at the bank trying to liquidate Myrtle‘s account 

with a power of attorney document. 

Winston testified next. He stated that he was very close to his mother and that, 

although he lived further away, he spoke to her on a daily basis and would spend long 

weekends with her. He testified that she treated all of her children equally and did not 

favor anyone in particular. Winston testified that his mother was progressing nicely at 

The Palms until Melta visited from California. At that point, he stated that ―it just 

snowballed downhill.‖ He stated that Palms nurses complained that Melta was 

interfering with their care of Myrtle—she complained about what they were feeding 

Myrtle and left constant harassing notes on a blackboard in Myrtle‘s room. He testified 

that Melta was ―hostile‖ toward him and the nursing staff—she ―scream[ed], hollered[ed]‖ 

and was ―belligerent.‖ He was very upset when Melta obtained the power of attorney,

which prevented him from receiving information about his mother‘s medical care. 

 

and gives patients an array of rights with respect to that information.
6

Winston testified that he confronted Melta about her behavior at The Palms and 

said that she needed to stop being a ―paranoid schizophrenic‖ regarding Myrtle‘s care. 

He was surprised when Melta responded, ―how did you find out about my medical 

record?‖ Winston also discussed how he learned about Myrtle‘s will at trial:

WINSTON: She [Melta] calls me up and she‘s going—she‘s all—I 

don‘t know if her meds were off or what. But she‘s 

like, I‘m leaving here, goddamn it, and you‘re going to 

take care of your own mother. I‘m like, what? Hold 

on. Hold on. What are you talking about? [She 

said] I‘m leaving and I‘m going to go get this will 

changed back and I‘m going to put it back in you and 

Henry‘s name. I said, wait a minute, what will? 

Well, I have a will and I‘m going to—and then she 

hung up.

Winston stated that he was surprised because his mother never discussed a will 

with him or his brother. He felt ―if she would have wanted to write a will, Henry and I 

would have been notified by [his] mom in some kind of way.‖ At one point, Winston also 

stated that he received a call from his mother that concerned him:

WINSTON: She [Myrtle] calls up. It was a strange call because 

she was on the other end of the line. She said, 

Poochie, Melta is trying to kill me. I‘m like, what? 

She‘s messing with my medications. I said, oh, mom. 

I‘ll check into it.

Winston also testified that he was disturbed one day when he arrived at his 

mother‘s home after she had been released from the Palms. His mother was home 

alone with Melta. He testified that his mother had seven to eight duragesic medicine 

patches all over her body, and he accused Melta of placing them on her body. Winston 

also testified that, over the years, Melta frequently called him for money. She would say 
7

she was hungry, so he would wire her money via Western Union.

Minerva Brooks, the late Connie‘s wife and Melta‘s stepmother, testified. She 

stated that Melta primarily grew up with her mother in California. Melta later moved to 

Texas briefly when her father became ill with cancer. Minerva recalled that during this 

time, Melta discussed being treated by a psychiatrist and would have ―split personalities‖ 

at times. She left four days before her father died but later called to see if her father left 

a will and if she was in the will. Minerva also claimed that Melta stole items from her 

household, always needed money, and was concerned about Social Security benefits. 

A neighbor, Dorothy Frances, testified that she saw Melta moving furniture and boxes 

out of Myrtle‘s house while Myrtle was still being treated at The Palms. 

Sandra Larson, a licensed social worker who worked at The Palms in 2004, 

testified about Myrtle‘s medical condition upon admission. Reviewing Myrtle‘s 

admission sheet, Larsen reported that Myrtle suffered from a previous cardiovascular 

accident or stroke, was paralyzed on the left side of her body, had hypertension, 

osteoarthrosis, reflux sympathetic dystrophy, pleural refusion, and was constipated due 

to her pain medications. Larsen testified that she noticed some ―strong signs and 

symptoms of depression‖ approximately one month after Myrtle was admitted to the 

Palms. Myrtle was also in constant pain because of her arthritis. Larson described 

Melta as ―one of the most difficult people that I have ever dealt with.‖ She stated that 

several certified nurse assistants requested to be reassigned from caring for Myrtle 

because they did not want to suffer Melta‘s ―abuse.‖
8

Melta testified that she grew up in California for most of her life, but lived with her 

father and Myrtle in Corpus Christi at one point during high school. At the time of 

Myrtle‘s death, she lived in California with her husband and children. Melta left her 

family when Myrtle allegedly called her to come and care for her at The Palms. Melta 

explained that the reason she was so direct and forthright with the caregivers at The 

Palms was because they were giving sub-par care to Myrtle. She alleged that they fed 

Myrtle food to which she was allergic, failed to take her to the toilet when requested, and 

did not regularly move her which led to bed sores. Melta explained that she did not 

attend Myrtle‘s funeral because no one in her family told her when or where it was to be 

held. Upon cross-examination, though, she admitted that she left for California the 

same day Myrtle died. She also admitted that she left a copy of Myrtle‘s will at a 

lawyer‘s office before she left on the plane to California. 

Myrtle‘s will named Melta the sole independent executor of her estate. Melta 

was also the primary beneficiary of the will: Myrtle bequeathed Melta her furnished 

home and vehicle, valued at approximately $50,000. Myrtle‘s only living sons received 

less—Henry was left a table, chair, and lamp, while Winston was left a china cabinet. 

Other relatives also received certain household items.

The jury found that Myrtle lacked the testamentary capacity to execute a will and 

that the will was procured through undue influence. Melta then filed this appeal.
9

II. ANALYSIS

A. The Last Will and Testament of Myrtle 

By her first issue, Melta argues that the trial court erred when it ―failed to 

recognize the last will and testament of Myrtle Marie Brooks.‖ We construe this issue 

as a challenge to the legal and factual sufficiency of the jury‘s findings that Myrtle lacked 

the testamentary capacity to execute a will and that her will was procured through undue 

influence. 

1. Standard of Review and Applicable Law

We may sustain a legal sufficiency challenge only when (1) the record discloses a 

complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of 

evidence from giving weight to the only evidence offered to prove a vital fact; (3) the 

evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence 

conclusively establishes the opposite of a vital fact. See King Ranch, Inc. v. Chapman, 

118 S.W.3d 742, 751 (Tex. 2003). In determining whether there is legally sufficient 

evidence to support the finding under review, we must consider evidence favorable to 

the finding if a reasonable fact finder could and disregard evidence contrary to the finding 

unless a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 

807, 827 (Tex. 2005). 

In reviewing an appellant‘s factual sufficiency challenge to an adverse jury finding 

on which the other party had the burden of proof, we will consider all of the evidence in 

the record, both in support of and contrary to the finding. See Dow Chem. Co. v. 
10

Francis, 46 S.W.3d 237, 242 (Tex. 2001). We will set aside the district court‘s finding 

only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong 

and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Where there 

are disputed issues of fact, we give deference to the fact-finder as they are the ―sole 

judges of credibility of the witnesses and the weight to be given to their testimony.‖ 

Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex. 1993).

2. Analysis

The evidence shows that Myrtle was ninety-three years old at the time of her 

death. She was recovering from a fall that had left her partially paralyzed, and had 

several underlying illnesses such as hypertension, osteoarthrosis, and reflux 

sympathetic dystrophy to complicate the recovery from her fall. According to various 

witnesses, Myrtle was depressed about being admitted to a nursing home to recuperate. 

Henry testified that he worried about his mother‘s state of mind when she could not recall 

whether she had eaten on a particular day and reported seeing dead relatives. In light 

of the foregoing evidence, we hold that a reasonable fact finder could find that Myrtle 

lacked the testamentary capacity to execute a will. Myrtle‘s physical and mental 

well-being were fragile due to her health problems and medications. The evidence was 

legally sufficient to support the jury‘s finding that Myrtle lacked testamentary capacity. 

City of Keller, 168 S.W.3d at 827. This finding is also factually sufficient, because it is 

not ―so contrary to the overwhelming weight of the evidence as to be clearly wrong and 

manifestly unjust.‖ Cain, 709 S.W.2d at 176. 
11

Further, the evidence shows that Myrtle‘s two sons, Henry and Winston, were 

close to her. They and their wives visited Myrtle at The Palms as often as they could 

while she was recuperating. Myrtle had never discussed creating a will because, 

according to Henry and Winston, Myrtle knew that her boys would ―do what‘s right.‖ 

Winston said that Myrtle treated all of her children equally and did not favor any of them. 

The testimony regarding Melta indicated that she had financial troubles and frequently 

asked for money from her uncles. The evidence also showed that Melta had her 

grandmother sign a power of attorney and that Myrtle‘s will left the bulk of the estate to 

Melta. There was also testimony that Melta tried to liquidate her grandmother‘s bank 

account after her death and that Melta had allegedly stolen items from her stepmother‘s 

and grandmother‘s homes. 

We hold that a reasonable fact finder could deduce that Melta unduly influenced 

her grandmother Myrtle to create a will to devise a disproportionate amount of her estate 

to Melta. The evidence showed that Melta isolated Myrtle from her sons and their wives

through a power of attorney document. Melta‘s finances, based on the record, 

appeared to be strained, and she received the bulk of Myrtle‘s estate in the will, whereas 

Henry received a table, chair, and lamp and Winston received a china cabinet. We 

conclude that the evidence was legally sufficient to support the jury‘s finding on undue 

influence. City of Keller, 168 S.W.3d at 827. We also conclude that, after considering 

all of the evidence in the record, the finding of undue influence is not ―so contrary to the 

overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.‖ 
12

Cain, 709 S.W.2d at 176. Accordingly, the jury‘s finding of undue influence was also 

factually sufficient. We overrule Melta‘s first issue.

B. Evidentiary Issues

By issues two, three, six, and seven, Melta challenges the trial court‘s decision 

regarding certain evidentiary issues. The admission or exclusion of evidence is a 

matter within the trial court‘s discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) 

(citing State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001)). To obtain 

reversal of a judgment based on error in the admission or exclusion of evidence, an 

appellant must show that the trial court‘s ruling was in error and that the error was 

calculated to cause and probably did cause the rendition of an improper judgment. 

Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). ―Erroneous

admission of evidence requires reversal only if the error probably (though 

not necessarily) resulted in [the rendition of] an improper judgment.‖ Id.; see also TEX.

R. APP. P. 61.1(a). We address each of Melta‘s evidentiary issues in turn.

1. Evidence on Myrtle’s Physical and Mental Capacity

In issue two, Melta argues that the trial court inappropriately allowed jurors to hear 

testimony about Myrtle‘s physical and mental capacity from a non-expert witness, 

Sandra Larson. Melta specifically complains Larson ―is not a [sic] RN, and is not able to 

make a diagnosis‖ regarding whether Myrtle may have lacked the mental capacity to 

execute a will. 

Pro se litigants must abide by the same standards as licensed attorneys and 
13

comply with applicable laws and rules of procedure. See Mansfield State Bank v. 

Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Giddens v. Brooks, 92 S.W.3d 878, 880-81 

(Tex. App.––Beaumont 2002, pet. denied). ―There cannot be two sets of procedural 

rules, one for litigants with counsel and the other for litigants representing themselves.‖ 

Mansfield, 573 S.W.2d at 185 (citing Stein v. Lewisville Ind. Sch. Dist., 481 S.W.2d 436 

(Tex. Civ. App.––Fort Worth 1972, writ ref'd n. r. e.)). Here, Melta failed to object when 

Larson testified at length about Myrtle‘s physical and mental capacity. See TEX. R. APP.

P. 38.1 (―As a prerequisite to presenting a complaint for appellate review, the record 

must show that the complaint was made to the trial court by a timely request, objection, 

or motion . . . .‖). Accordingly, Melta failed to preserve error on this point, and we 

overrule this issue. Id.

2. Melta’s Medical History and Character Evidence

In issue three, Melta argues that the trial court erred when it allowed Melta‘s 

personal medical history and certain character evidence to be admitted into evidence. 

Again, though, Melta failed to timely object when testimony regarding her character was 

admitted. Id. For example, while at a bench conference during the testimony of 

witness Larson, the following exchange occurred:

[MELTA]: While we‘re here, can I just ask a question? 

This evidence, the continuing of evidence 

regarding my character, that‘s just all going one 

way and is this—

[THE COURT]: You‘re going to have a chance to ask her 

questions and you will also have an opportunity 

to testify as well.
14

[MELTA]: Okay. But my question is, is this relevant to 

the case with regards to her being 

incapacitated or undue influence?

[THE COURT]: Well, it‘s already in. So that was something 

that should have been brought up before I 

admitted it.

Although Melta later timely objected to the admission of certain testimony about 

her character evidence, the evidence had already been admitted. To preserve error, 

appellant could have requested a running objection or objected to all the testimony 

deemed objectionable. See Schwartz v. Forest Pharmaceuticals, Inc., 127 S.W.3d 118, 

124-25 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). ―Error in admitting evidence 

is cured where the same evidence comes in elsewhere without objection.‖ Id. at 124 

(holding that error was waived when the appellant failed to timely object to repeated 

references about his alleged litigious nature). Because Melta failed to timely object to 

preserve this issue, we overrule issue three. 

3. Testimony Regarding Undue Influence

In issue six, Melta contends that the trial court erred when it admitted testimony 

regarding alleged undue influence over the creation and execution of Myrtle‘s will. We 

overrule this issue on the same basis that we overruled issues two and three. Melta 

failed to timely object and thus preserve error when testimony regarding her alleged 

undue influence was admitted into evidence. See TEX. R. APP. P. 33.1. 

4. Exclusion of Records

In her seventh issue, Melta complains that the trial court did not accept certain 
15

documents regarding Myrtle‘s health and well-being into evidence. Based on our 

review of the record, we presume that Melta is referring to the medical records from 

Jordan Health Services. The record indicates that Melta called the custodian of records 

from Jordan Health Services, Patricia Nunez, onto the stand during trial. Henry and 

Winston‘s counsel objected to these documents because they were not 

self-authenticated. Melta could not establish the proper predicate to authenticate the 

documents and, thus, could not offer them into evidence. On the record, Melta stated, 

―I just—Your Honor, at this point I think I‘ll just dismiss the witness because I don‘t know 

what . . . the predicate is.‖ 

To complain on appeal that the trial court improperly excluded evidence, the party 

must have first preserved error by offering the evidence and securing an adverse ruling 

from the trial court. See Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.––El Paso 2002, 

no pet.); see also Dean-Groff v. Groff, No. 13-06-085-CV, 2007 Tex. App. LEXIS 8881, 

at *14 (Tex. App.––Corpus Christi Nov. 8, 2007, no pet.) (mem. op.). The complaining 

party must have complied with Texas Rule of Evidence 103(a)(2) which states that error 

may not be predicated upon a ruling that excludes evidence unless, ―the substance of 

the evidence was made known to the court by offer, or was apparent from the context 

within which questions were asked.‖ TEX. R. EVID. 103(a)(2); see TEX. R. APP. P. 

33.1(a)(1); Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. 

App.––Houston [1st Dist.] 1997, no pet.). Without an offer of proof, this Court cannot 

determine whether exclusion of the evidence was harmful. Perez, 74 S.W.3d at 66-67.
16

Melta made no offer of proof. Further, she did not offer the excluded evidence 

into the record by filing a formal bill of exception within thirty days of filing the notice of 

appeal. See TEX. R. APP. P. 33.2. Because we cannot consider the records and 

because the substance of the records is not apparent from the record, Melta has failed to 

preserve error regarding these reports. See Wade, 961 S.W.2d at 374 (holding that, in 

the absence of offer of proof, an appellate court has no basis to review a contention that 

the trial court committed reversible error by preventing defendant from introducing 

documents). Accordingly, we overrule this issue.

C. Issues Regarding the Jury Charge and Closing Arguments

By her fourth issue, Melta complains that the jury charge ―was not relevant or 

consistent to the issues presented in opposition to a will contest.‖ However, during the 

charge conference, the trial court specifically asked Melta: ―Do you have any objections 

[to the charge]?‖, and Melta replied, ―No. That‘s fine.‖ Accordingly, we hold that Melta 

failed to preserve error on this issue. See TEX. R. APP. P. 33.1.

Melta also argues that counsel for Henry and Winston ―continued to give incorrect 

and confusing interpretations of the law, and to the jurors regarding  ̳yes or no‘ answers, 

and the Jurors were still confused when they rendered their decision.‖ We presume 

that Melta refers to opposing counsel‘s closing arguments, where counsel offered 

guidance on how to answer the jury charge. Melta did not object during counsel‘s 

closing arguments, so this sub-issue has also been waived. Id. 
17

Melta finally contends that ―the prepared Final Judgment was not consistent with 

the juror‘s verdict.‖ The jury charge posed two questions to the jurors in this case. 

Question 1 asked the jury the following: ―Do you find from a preponderance of the 

evidence that Myrtle Marie Brooks lacked the testamentary capacity to make and sign 

her Last Will and Testament?‖ The jurors answered ―Yes‖ to this question. Question 2 

asked, ―Do you find from a preponderance of the evidence that the Last Will and 

Testament of Myrtle Marie Brooks, dated May 14, 2004, was made as the result of undue 

influence exercised by Melta Brooks-Cannon over Myrtle Marie Brooks?‖ The jurors 

answered in the affirmative to this question, as well. However, the Final Judgment 

states that ―the jury . . . answered  ̳No‘ to Question 1, and  ̳Yes‘ to Question 2 . . . .‖

This error did not cause the rendition of an improper judgment. See TEX. R. APP.

P. 44.1. The jury found two bases upon which to invalidate the will, but the judgment, 

because of a clerical error, only refers to one. Pursuant to Texas Rule of Appellate 

Procedure 43.2(b), the remedy for this challenged inconsistency is not to reverse the 

judgment, as Melta urges, but to modify the trial court‘s judgment to reflect that the ―jury 

answered  ̳Yes‘ to Question 1, and  ̳Yes‘ to Question 2.‖ See TEX. R. APP. P. 43.2. 

Having addressed all of the sub-issues in issue four, we overrule it.

D. The Appointment of an Attorney Ad Litem

Melta‘s fifth issue complains that the court appointed attorney Joe A. Flores as an 

attorney ad litem on October 16, 2007, when Henry and Winston filed their application for 

determination of heirship. In her brief, Melta argues that Flores‘s ―duties were to 
18

represent [Myrtle‘s] heirs.‖ She complains that Flores instead ―reported to the court 

regarding [Melta‘s] medical background, and referred to information again that was 

obtained illegally . . . i.e. 10-year-old bankruptcy issues and psychiatric medical 

background wit to [sic] Bi-polar.‖ 

Melta‘s appellate point of error is unclear in this regard. See TEX. R. APP. P. 

38.1(i). It appears that Melta disagrees with Flores‘s testimony and report in the case. 

We note that the only time Flores appears in the record is outside the presence of the 

jury when he discussed his appointment with reference to the application for 

determination of heirship and his compensation for work done in that regard. Melta also 

references a report that Flores submitted to the trial court as part of that appointment, but 

Flores‘s report is not in the appellate record. Because neither Flores‘s testimony nor 

his report were preserved for this Court to review, we overrule Melta‘s fifth issue. See 

TEX. R. APP. P. 33.1.

III. CONCLUSION

Having overruled all of Melta‘s issues on appeal, we modify the clerical error in 

the judgment and affirm the judgment of the trial court, as modified.

________________________

GINA M. BENAVIDES,

Justice

Delivered and filed the

23rd day of June, 2011.