In Re the Estate of Earnest E. Clifton v. the State of Texas

AFFIRMED and Opinion Filed October 1, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00079-CV

IN RE ESTATE OF EARNEST E. CLIFTON, DECEASED

On Appeal from the County Court
Menard County, Texas
Trial Court Cause No. 2023-02184

MEMORANDUM OPINION

Before Justices Pedersen, III, Smith, and Garcia
Opinion by Justice Garcia

Appellant Barbara Pearson appeals an order denying her application for

probate of the will of Earnest Clifton. We affirm.1

I. BACKGROUND

In August 2023, Pearson filed an application to probate Earnest Clifton’s will

in the county court of Menard County. She alleged that she was Clifton’s daughter

1
This appeal was perfected to the San Antonio Court of Appeals. The Texas Supreme Court then
transferred the appeal to this Court. Accordingly, we decide this case in accordance with the precedent of
the San Antonio Court of Appeals. See TEX. R. APP. P. 41.3.
and that he had died in July 2023 at the age of 76. A week later she filed an amended

application to probate the will. Therein she alleged the following additional facts:

• Clifton’s original will could not be found, and a copy of the will
would be offered for probate.

• The will designated Pearson as independent executor of Clifton’s
estate.

• The devisees under the will were Clifton’s seven children and
one grandchild.

• Clifton’s wife Velda died in 1996. Clifton may or may not have
been married to “Marilyn Glasscock” at the time of his death.

Marilyn Glascock Clifton (“Glascock”) filed a general denial to the amended

application.

We do not have a reporter’s record from the hearing of Pearson’s amended

application to probate Clifton’s will. The trial judge signed an order denying

Pearson’s amended application and then an amended order denying that application.

The amended order recites that the judge heard the application on November 3, 2023,

by Zoom video conference and that Glascock did not appear in person or otherwise.

The judge refused to admit the proffered copy of Clifton’s will to probate because

he determined that it had been revoked by physical act. The judge later signed

findings of fact and conclusions of law.

Pearson timely appealed. See In re Estate of Brown, No. 23-0258, 2024 WL

3995734, at *3 n.7 (Tex. Aug. 30, 2024) (per curiam) (“[C]ourts have held that an

order denying an application to probate a will is appealable.”).

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Pearson has filed the only brief in this appeal, which we submitted without

oral argument

II. ISSUES PRESENTED

We paraphrase Pearson’s six issues on appeal as follows:

1. The trial judge erred by refusing to admit the copy of Clifton’s
will to probate because the evidence supporting admission was
conclusive.

2. The trial judge’s finding that Clifton revoked the will is against
the great weight and preponderance of the evidence.

3. The trial judge erred by refusing to admit the copy of Clifton’s
will to probate on the theory that the application failed to comply
with Estates Code § 256.054(3)(B).

4. The trial judge erred by ruling that Glascock had a homestead
right in certain rental property Clifton owned at the time of his
death.

5. The trial judge erred by conducting his own research outside the
record and by filing evidence that was not presented at the
hearing.

6. If this Court does not reverse and render judgment, it should
reverse and remand in the interest of justice.

III. ANALYSIS

A. The absence of a reporter’s record is fatal to appellant’s first four issues.

There is no reporter’s record in this appeal. According to Pearson’s brief, no

court reporter was present at the hearing of her amended application for probate of

Clifton’s will.

“It is the appellant’s burden to bring forward an appellate record showing

reversible error by the trial court.” Sareen v. Sareen, 350 S.W.3d 314, 317 (Tex.

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App.—San Antonio 2011, no pet.) (citing Christiansen v. Prezelski, 782 S.W.2d

842, 843 (Tex. 1990) (per curiam), and Simon v. York Crane & Rigging Co., 739

S.W.2d 793, 795 (Tex. 1987)). Without a complete reporter’s record, we cannot

review all of the evidence presented to the factfinder or apply the sufficiency

standards of review. Id. Thus, when the appellant fails to bring a complete reporter’s

record forward on appeal, the reviewing court must presume that the evidence was

legally and factually sufficient to support the challenged order or judgment. Id.; see

also, e.g., Warrior v. Warrior, No. 04-22-00179-CV, 2023 WL 4921897, at *2 (Tex.

App.—San Antonio Aug. 2, 2023, no pet.) (mem. op.).

The absence of a reporter’s record requires us to overrule Pearson’s first,

second, and fourth issues, each of which is essentially a sufficiency-of-the-evidence

issue.2 Additionally, Pearson’s third issue attacks an independent alternative basis—

a pleading defect—that the trial judge gave for refusing to admit the proffered will

to probate. Because we must presume the evidence was sufficient to support the

judge’s refusal to admit the will to probate, any error in the judge’s alternative

holding is harmless.

For these reasons, we overrule Pearson’s first four issues on appeal.

2
Pearson relies on the trial judge’s detailed findings of fact to supply the “evidence” she uses in her
analysis. But findings of fact are neither evidence nor a substitute for a reporter’s record.
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B. Issue Five: Whether the trial judge committed reversible error by
investigating the facts and filing evidence that he relied on in his order.

In her fifth issue, Pearson complains that the trial judge erred by conducting

his own factual research outside the trial record and by filing evidence that was not

presented at the trial.

The record supports the following relevant facts. According to the amended

order denying Pearson’s application to probate Clifton’s will, the trial judge heard

the application via Zoom on November 3, 2023. The judge signed the amended order

denying Pearson’s application on November 29, 2023. That same day, the judge

signed findings of fact and conclusions of law that include the following statement:

Based upon the court’s own research, the Court found that the decedent
was married in Menard County by Judge Stacy Lawler to Marilyn K.
Glasscock on October 17, 2022. A marriage license was issued by the
Menard County Clerk the same day.

Also on November 29, 2023, a copy of a marriage license between Earnest Elzie

Clifton and “Marilyn K. Glasscock” was filed in this case with no covering pleading,

letter, or explanation.

We conclude that Pearson has not adequately briefed this issue. An appellant’s

brief must include a clear and concise argument for the contentions made, “with

appropriate citations to authorities.” TEX. R. APP. P. 38.1(i). “If we are not provided

with existing legal authority that can be applied to the facts of the case, the brief

fails.” Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex.

App.—Dallas 2010, no pet.). Pearson’s argument under issue five is just over a page

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long and cites one authority: McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim. App.

2012), which is a criminal case about jury misconduct and the admissibility of

evidence under Texas Rule of Evidence 606(b). Pearson does not explain how

McQuarrie applies to situations involving alleged misconduct by a trial judge in

connection with a bench trial. Nor does she identify the rule, statute, constitutional

provision, or other law that the trial judge’s conduct in this case allegedly violated.

Moreover, we see nothing in the appellate record showing that Pearson raised

her complaint by a timely request, objection, or motion in the trial court. See TEX.

R. APP. P. 33.1(a)(1). Although she might not have been able to anticipate the trial

judge’s action, she could have raised her complaint in a timely motion for new trial

or motion to recuse. Thus, her complaint would fail for lack of preservation unless

some exception to Rule 33.1 applies. See id. But Pearson does not mention error

preservation in her argument, much less show that she preserved error or was not

required to preserve error. We cannot do her research for her. See Bolling, 315

S.W.3d at 895 (“[W]e are not responsible for doing the legal research that might

support a party’s contentions.”).

We overrule Pearson’s fifth issue as inadequately briefed.

C. Issue Six: Whether we should reverse and remand in the interest of
justice.

In her final issue, Pearson argues that we should reverse the order and remand

for a new trial in the interest of justice if we conclude that she is not entitled to

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reversal and rendition of judgment in her favor. She cites Rule 43.3 and In re Estate

of Wilson, 252 S.W.3d 708 (Tex. App.—Texarkana 2008, no pet.), for support.

We reject Pearson’s argument. Rule 43.3 authorizes us to remand in the

interest of justice, but only after we have first determined that the trial court’s

judgment must be reversed:

When reversing a trial court’s judgment, the court [of appeals] must
render the judgment that the trial court should have rendered, except
when:

(a) a remand is necessary for further proceedings; or

(b) the interests of justice require a remand for another trial.

TEX. R. APP. P. 43.3 (emphasis added). Pearson has not shown reversible error, so

Rule 43.3 has no application here. See Wall v. State Farm Lloyds, 573 S.W.3d 281,

288 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (holding that court of appeals

may remand in the interest of justice only when it has first found reversible error).

The Estate of Wilson case further illustrates the point; in that case, the appellant

showed himself entitled to reversal based on the legal insufficiency of the evidence,

and only after deciding to reverse did the court of appeals consider whether rendition

or remand was the appropriate disposition of the case. See 252 S.W.3d at 714–15.

Pearson has not shown reversible error, so we may not remand in the interest of

justice.

We overrule Pearson’s sixth issue on appeal.

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IV. DISPOSITION

For the foregoing reasons, we affirm the Amended Order Denying

Application for Probate of Last Will and Testament of Earnest E. Clifton.

/Dennise Garcia/
DENNISE GARCIA
240079F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN RE ESTATE OF EARNEST E. On Appeal from the County Court,
CLIFTON, DECEASED Menard County, Texas
Trial Court Cause No. 2023-02184.
No. 05-24-00079-CV Opinion delivered by Justice Garcia.
Justices Pedersen, III and Smith
participating.

In accordance with this Court’s opinion of this date, the trial court’s
Amended Order Denying Application for Probate of Last Will and Testament of
Earnest E. Clifton is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 1st day of October 2024.

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