Coleman, Brenda F. v. Yvette D. Lemons

• Court: Court of Appeals of Texas
• Decided: May 2, 2002
• Docket: 01-01-00209-CV
• Status: Published

Opinion

Opinion issued on May 2, 2001

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00209-CV

BRENDA F. COLEMAN A/K/A BRENDA F. JOHNSON, Appellant

V.

YVETTE D. LEMONS, Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 9942997

O P I N I O N

In this breach of contract case, appellant/defendant, Brenda F. Coleman a/k/a Brenda F. Johnson, is appealing a jury verdict in favor of appellee/plaintiff, Yvette D. Lemons. Specifically, appellant claims (1) the evidence was insufficient to support the judgment and (2) the trial judge erred in the way he submitted the case to the jury. We affirm.

Sufficiency of the Evidence

First, appellant claims the evidence was insufficient to support the judgment. When an appellant complains of the factual or legal sufficiency of the evidence, she cannot discharge her burden to show that the judgment is erroneous in the absence of a complete or agreed reporter's record. See Schafer v. Connor, 813 S.W.2d 154, 155 (Tex. 1991). In the absence of a reporter's record, the court of appeals presumes the omitted evidence supports the trial court's judgment. See id. Further, a court of appeals cannot determine a trial court's ruling was harmful error if it is unable to review the entire relevant record. See Christian v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); see also Harris County v. Smith, 66 S.W.3d 326, 330 (Tex. App.--Houston [1st Dist.] 2001, pet. filed); B. Smith Contractors, Inc. v. Olshan Demolishing Co., 877 S.W.2d 460, 464 (Tex. App.--Houston [1st Dist.] 1994, writ denied).

In this case, appellant did not pay for the reporter's record and therefore no reporter's record was filed. ⁽¹⁾ We cannot determine from the record before us whether the trial court erred and must presume the evidence supports the trial court's judgment. See Schafer, 813 S.W.2d at 155.

We overrule appellant's sufficiency points of error.

Jury Charge Error

Appellant also claims the trial court erred in the way it submitted the case to the jury. The abuse of discretion standard governs claims of error in the jury charge. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). Error in the charge is reversible if, when viewed in the light of the totality of the circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment. Tex. R. App. P. 44.1(a); Island Recreational Dev. Corp. v. Republic of Texas Savs. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986); Prather v. Brandt, 981 S.W.2d 801, 810 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). To determine whether an alleged error in the jury charge is reversible, the reviewing court must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Island Recreational, 710 S.W.2d at 555.

In this case, we cannot review the evidence presented at trial because appellant failed to provide this Court with a reporter's record.

Accordingly, we overrule appellant's jury charge points of error.Conclusion

We affirm the trial court's judgment.

Margaret Garner Mirabal

Justice

Panel consists of Justices Mirabal, Hedges, and Jennings.

Do not publish. Tex. R. App. P. 47.4.

1.

Appellant was not entitled to a free record under the rules. Appellant asked us to proceed with the appeal without the reporter's record. We granted the request and, after notice to appellant, we ordered that this appeal would be considered on the clerk's record and briefs alone. Tex. R. App. P. 37.3(c).