## In the Court of Appeals Second Appellate District of Texas

at F ort Worth

___________________________ No. 02

- 18

- 002 5 9

- CV

___________________________

On Appeal fro m the 325th District Court Tarrant County, Texas Trial Court No. 325

- 642296

- 18

Before Sudderth, C.J.; W o mack and Wallach , JJ. Memorandu m Opinion by Justice Womack 

### R OBIN 

### E. P EMPSELL 

### , Appellant

V



### .

M EGAN 

### N. B IRT 

### , Appellee2 MEMORANDUM OPINION

I. I NTRODUCTION

In t his appeal, appellant Robin E. Pempsell challenges t he trial court ’ s issuance

of a fifteen

- year default protective order entered against her. In two narrow issues,
Pempsell complains of trial court error related to the protective

- or de r hearing and to

the purported testimony of the applic ant ’ s attorney during the he aring on Pempsell ’ s

motion for new trial

. Because Pempsell has inadequately briefed her first issue and

has failed to pre serv e her second issue , we wi ll affirm the trial court ’ s order.

II. B ACKGROUND

On June 8, 2 018, Meagan 1 N. B irt applied for a n A rtic le 7A protective order

against Pempsell, her former mother

- in

- law, and alleged that Pempsell had en gaged in
stalking. 2 On Jun e 14, 2018
, Pe mpsell appeared pro se for the scheduled protect ive

order hearing and signed a document in which she acknowledged that she had been

advised by the trial court of her right to employ an attor ney to represent her presently

or at a later time and declar ed t ha t she would represent herself at the hearing.

1 In the application for protective order as w ell as the protective order it self, Birt ’ s first name is spell ed “ Mea gan. ” At the hearing on the protective o rder, the report er ’ s r ecord reflects the spe lling as “ Meagan. ” Ho wever, in various places in the record, including the notice of appeal, it is spelled “ Megan. ”

2 Unlike a fa mily

- viol ence protec tive order , an A rticle 7A protec tive ord er may be issued wit h out regard to the rela tionship between the applicant and the alleged of fender. See T ex. Fam . Co de Ann. §§ 81.00 1 , 82.0 02 ; Tex. C ode Crim. P r oc. Ann.

art . 7A.01(a)(1).3

According to Assi stant Crim inal Distric t Attorney Cynthia Gustafson
, who was
pursuing the protective orde r on Birt ’ s be half
, the trial court asked the parties to

reschedule their he aring beca u s e of its full docke t

. Gustafson had a two

- hour

discussion with Pempsell regarding the options available to the parties. Although

Gustafson and Pempsell lat er disagreed about the result of that discussion, Gustafso n

st ated at the hearing on the motion for n ew trial that Pe mpsel l “appeared to have a

very good understanding that her decision to leave the courthouse and th e
proceedings wou ld result in a final protective order be ing placed against [Pempsell]

for a perio d of [fifteen] years ” and that she would b e unable to communicate with her
grandchildren fo r the next fifteen years. 3

L ater that day
, after Pempsell had left the c ourthouse
, Gustafson secured the

default pro tective order from another judg e base d on Birt ’ s testimony

. Pempsell

s ubsequen tly f

iled a verified motion for new trial

. At the hearing on the motion for

new trial
, while her attorney stated what Pempse ll would testify to if called, Pempsell

did no t test

i fy

. T he trial court denied the moti on for new trial

.

3 Pempsell disputes the accuracy of Gustafson ’ s factual represent ations set for t h in h e r affidavi t atta ched to Birt ’ s response to Pempsell ’ s motion for new trial. Because we dispose of Pempsell ’ s iss ue s on legal bases, we do not need to address these alleged discrepancies.4 I II. D ISCUSSION

A. S ufficienc y of the Evidence and Inadequate Briefing
Pempsel l does not raise a ny broad issue s claim ing that the trial court er red i n
granting the defa ul t pr o tective order or in failing to grant the motion for new trial

. Rather, i n h er first issue, Pempsell contends that “ [t] he trial court erred in issu ing a

permanent protective order without a hea ring to determine ‘ whether there are
reasonable grounds to bel i eve that the applicant [Birt] is the victim of

. . .

st alking

. . . [

. ] ’ ”
In three paragraphs, Pempsel l cite s generally to one ca se and one code
provision and then complains broadly of the lack of docu mentary evidence and of the

use of leading questions at the protective

- order hearing

. In the first paragraph,
Pempsell no tes t h at Article 7A.03 of the C o de of C ri mi na l P r ocedure “ requ ires a
certain level of evidence to support issuance of a protecti ve or der ” and cites S hoemaker

v. S tate of Tex

as for the P rotection of C.L. in support of her assertion that “ [o ]n review, the

C ourt of A ppeals uses both legal a nd factua l su ffic iency standar ds. ” 493 S.W.3d 710,

715 (Tex. App.

— Houston [1 st D ist. ] 2016
, no pet.). In her s econd para g raph,
Pempsell notes

—

without citation to authority

— that “ [ u ] nder a legal s ufficien cy

st and ard, evidence is conside r ed in the l ig ht m ost favora ble to the prevailing party ”

and t hen complains that “ the only such evidence ” was Birt ’ s testim ony abou t
Pempsell ’ s uninvited attempts to see Birt ’ s children

. Pempsell also compl ained th at
Birt failed to p r offer “ a Po li ce r eport ” o r “ an y documentary evide nce ” to support her5

protective

- order applic ation. In her th ird paragraph, Pempsell asserts that “ [u]nder
the Factual Sufficiency Challenge, this C ourt m ust ‘ examine all of the record

e v idence ’ ” a n d cite s to the sing le case referenced in the first paragrap h. Pempsell

argues , “ There is no record e vidence so that the appellee cannot bear the burden on
appeal imposed by

. . . Shoemake r [.] ” See Shoem aker
, 493 S.W.3d at 715

. S he also

c ompl a ins that dur

ing the protective

- order hearing, Gustafson spoke for four minu tes

and asked Birt only leading quest ions. Pe mpsell concludes her issue by stating,

“ Litigation moves right alon g whe n one side convi nces the o t h er sid e to l eave the

cour thouse. ”

“ The Texas Rules of Appellate Procedure require adequate briefing. ” ER I
Consulting Eng ’

rs, Inc. v. Swinnea , 318 S.W.3d 867, 880 (Tex. 2010)

. An appellate brief

must contain a clear and concise argu m e nt for th e co ntentions mad e in the brief, with
appropriate citations to authorities and to the record. Tex. R . A p p. P. 38.1 (i ). An
issue presented in a brief is sufficient if it directs the reviewing court ’ s attention to the

er ror about which the compl a i nt is m ad e

. Valadez v. Av itia , 238 S.W.3d 843, 845 (Tex.
App.

— El Paso 2007, no pet.) . However, a n appellant ’ s failure to c it e legal authority
or provide substantive analysis of a legal issu e presented results in waiver of the

a ppellant ’ s complaint. Fl

o r es v. J am es W ood Fin. LLC

, No. 02

- 13

- 00022

- CV, 2013 WL
3064455, at *1 (Tex. App.

— Fort Worth June 20, 2013, no pet.) (citing Fr edonia State
Bank v. Gen. Am. Life Ins. Co ., 881 S.W.2d 279, 284 (Tex. 1994) ( recognizing long

standing rule that error may be w a i ved due t o in adequate brie fing) and Valadez
,6

238 S.W.3d at 845 )

. We have no duty to perform an independent review of the

re co rd and applicable law to determine whether the purpo rted error of which a party
complains occurred. Ka ren Corp. v. Burlingt o n N. & Santa F

e Ry . Co. , 107 S. W.3d 118,
125 (Tex. App.

— Fort Worth 2003, pet. denie d)

. Were we to do so, we would be

forced to a ba ndon our role as ne utral adjudicators and become an advocate for that

party. Martinez v. El Paso C t y

. , 218 S.W.3d 841, 84 4 ( T ex. App.

— El P aso 2007, pet.

st ruck) (citing Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.

— Amarillo 2003, pet.
denied) )

.

Cha pt er 7A of the C ode of C rim inal P rocedure authorizes a person to seek a
protective order if, a mong oth er things, the person is t he victim o f stal king. See Te x.
Code Crim. Proc. Ann. art. 7A.01(a)(1); Tex. Penal Code Ann. § 42.07
, .07 2. As

re levant to thi s case, a person commits the offense of stalking if the person, on more

than one occasion a nd pursu ant to the same scheme or course of cond uc t t hat is

direct ed specifically at another person, knowingly engages in conduct that:

(1) constitut es an offense un de r [ P enal C ode] section 42.07 [Harassment]

. . . ;
(2) causes the other person

. . . to feel hara ssed, annoyed, alarmed
, a b used, tormente d, em barrassed, or offended; and
(3) would cause a reasonable person to:

. . . (D) feel harassed, annoyed, alarmed
, abuse d, tormented, embarrassed, or offended.7

Tex. Penal Code Ann. § 42.07 (a)
, .072(a). I f
, after a hearing
, th e trial cou rt finds

reaso n able grounds to be l ieve that an applicant is the victim of st alking, it “shall issue
a protective ord er that include s a stateme nt of t h e required findings.” Tex. Co de

Crim. Proc. Ann. art. 7A.03 (a)

– (b).

In her brief, Pempsell p rovides no examination of the relevant law

— A r ticle s
7A.01( a) (1) and 7A.03(a)

– (b) of the C od e of C riminal P rocedure and Section s 42.07(a )

and 4 2 .072(a) of the P e n al C ode

— nor an alyzes how or whether the evidence before

the trial court was legally or factuall y in suffici ent to present reasonable groun ds for

the trial co urt to believe that Birt was a victim of stalking

. Tex. Co de Crim. Proc.

Ann. ar t s

. 7A.01(a)(1),

. 0 3 (a)

– (b) ; Tex. Penal Code Ann. § 42.07
, .07 2. Because
Pempsell provides no substanti ve an alysis in s upport of her i ssue, it is inadequat el y

briefed
, pr esents nothing for our review , and is waived

. Fl ores , 2013 WL 3064455, at

*1 ; Valade z

, 238 S.W.3d at 8 4 5

. Accordingly, we overrule Pempsell ’ s first issue.

B

. Rule 3.08 C omplaint and P reservati on

In he r second issue, P e mpsell contends that th e trial court erred dur ing the
hearing on her motion for new trial when it allowed Gustafson “ to t e stify ”

unchall eng e d and at length “ in violation of the ethical [r]ule against trial counsel
testifying as a witness , thus justifying a new trial

. ” 4 Pempsell s uggests that Gustafson

4 Although Pempsell complains o f Gustafson ’s “testimony ” during the h earing, Gustafson was not swor n as a witness, but she di d ma k e numer ous statement s without objection

. After Pempsel l ’ s cou nsel conclud ed his initial a rguments at the hearing, Gu stafson asked
, “ May I m ake my respon se ? ” With the trial court ’ s8

violated R

ule 3

. 08 of the Texas Disciplinary Rules of Professional Conduc t

. See Te x.

Disci plinary Rules Prof

’ l Conduct R. 3

. 08
, reprinted in Tex. Gov ’ t Code Ann ., tit. 2,
subtit. G, app

. A

.

Bi rt contends that Pemp sell has not preserved her Rule 3.08 complaint in

accordance with Rule 33.1

. See Tex. R. App. P. 33.1

. We agree

. To preserve a complaint for appellate review, a party must present to the trial

court a time ly request, objection, o r mo tion that states the specific grounds for the
desired ruling, if not apparent from the request’s, objection’s, or mot ion’s context.
Tex. R. App. P. 3 3.1 ( a

) (1)(A) ; see also Tex. R. Evid. 103 ( a) ( 1). If a party fails to do this,
error is not preserved

. B us hell v. D ean , 803 S.W.2d 711, 712 (T ex. 1991) (o p. on reh ’ g).
The objecting party must also get a ruling

— either expr ess or implied

— f rom the trial

cou rt. Tex. R. App. P. 33.1 ( a) ( 2) (A)
, ( b); see Lenz v. Lenz

, 79 S.W.3d 10, 13 (T ex.
2002) . If the trial c ou rt refuse s to rule, the party preserves error by objecting to that
refusal. Tex. R. App. P. 33.1 ( a) ( 2) (B)

. If the t rial court does not rule and the party
does not object to the refusal to rule, error is not preserved. Id.

B ec ause Pempsell did not ma ke a n objecti on in the trial co urt on the basis of

R ule 3.08 , her second issue is not preserved. See Anderson Producing Inc. v. Koch Oi l Co.
,

permission, a nd in the absence of any objec tion, G ustafson responded. “ N ormally,

a n attorney ’ s statements must be under oath to be considered evidence. ” Banda v. Garcia , 955 S.W.2d 270, 272 (Tex. 19 97). However, the opponent of the testim ony can waive the oath re qu i red by failing to object when the oppo nent knows or should know that a n objection is necessary. Id

.9

929 S.W.2d 416 , 423 (Tex. 1996) ( holding that because party did not object at trial

based on R ule 3.08, party waived c om pl aint on a ppeal). Accordin g ly, we overrule
Pempsell ’ s se cond issue

.

IV. C ONCLUSION
Having overrule d both of Pempse ll ’ s issue s on appeal, we affirm the trial

c ourt ’ s order.

/s/ Dana Womack

Dana Womack Justice

Delivered: October 31, 2019