Ray Layne Ferguson v. State

Opinion

NO. 07-03-0102-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 31, 2005

______________________________

RAY LAYNE FERGUSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. 005871984; HONORABLE JACK R. MILLER, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Ray Layne Ferguson appeals his conviction for delivery of a controlled substance by constructive transfer. He contends that the evidence was legally and factually insufficient to support the conviction, and that he received ineffective assistance of counsel. We affirm.

BACKGROUND

Amy Yarbrough, working as a confidential informant for the Plainview Police Department, agreed to assist Mandy Williamson, an undercover officer, in setting up a drug transaction. Yarbrough made two phone calls to appellant. During the calls she spoke with both appellant and appellant's wife, Bonnie Rodriguez, and arranged to purchase cocaine. As arranged, Rodriguez took Williamson's money, borrowed Yarbrough's vehicle to pick up the drugs, and returned the cocaine to Williamson. Throughout the transaction, Williamson wore a device which transmitted audio to other officers monitoring the deal. After Williamson received the cocaine from Rodriguez, Williamson signaled the monitoring officers who entered the residence and arrested appellant and Rodriguez.

Appellant was tried and convicted by a jury for delivery of a controlled substance by constructive transfer ⁽¹⁾ and sentenced to seven years imprisonment. Appellant appeals by two issues.

ISSUE ONE: LEGAL AND

FACTUAL SUFFICIENCY OF THE EVIDENCE

Appellant first asserts that the evidence was legally and factually insufficient to support his conviction. He contends that, absent Yarbrough's testimony, the evidence was insufficient to support the conviction and that Yarbrough's testimony may not be considered because it was not corroborated. Appellant cites Tex. Crim. Proc. Code Ann. art. 38.141 (Vernon Supp. 2004) ⁽²⁾ and Young v. State, 95 S.W.3d 448 (Tex.App.-Houston [1^st Dist.] 2002, pet. ref'd), as support for his contention that Yarbrough's testimony could not be considered because it was not corroborated. Article 38.141 provides:

(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

A confidential informant's testimony is sufficiently corroborated if, setting aside the informant's testimony, the other inculpatory evidence, viewed in a light most favorable to the verdict, tends to connect the accused to the commission of the offense, even if it does not directly link the accused to the crime. See Cantelon v. State, 85 S.W.3d 457, 460-61 (Tex.App.-Austin 2002, no pet.).

Evidence is legally sufficient if, when viewed in the light most favorable to the jury's verdict, a rational jury could have found the essential elements of the offense, beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clewis v. State, 922 S.W.2d 126, 132 n.10 (Tex.Crim.App. 1996).

Evidence is factually sufficient if, when all of the evidence is considered in a neutral light, a rational jury could have made a finding of guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004).

In conducting a sufficiency review of the evidence for corroboration of Yarbrough's testimony, we eliminate Yarbrough's testimony from consideration and examine the remaining record for evidence tending to connect appellant to the commission of the offense. See Cantelon, 85 S.W.3d at 461. Although there is no precise rule stating the amount of evidence necessary to corroborate an informant's testimony, the "tends-to-connect" standard does not present a high threshold. Id. Circumstances which, if considered individually, might not tend to connect a defendant to an offense, can tend to connect a defendant to the offense when considered together. Id. at 460-61.

In the present case, Rodriguez testified that appellant told Yarbrough, "We could see, you know, if [Yarbrough] could come and pick up Bonnie [Rodriguez]," and then asked Rodriguez "if [Rodriguez] wanted to go somewhere." According to Rodriguez, appellant was aware that Yarbrough was looking for "some stuff" which Rodriguez understood meant drugs. Williamson testified that after Rodriguez returned with the cocaine, appellant suggested everyone go inside to avoid possible police surveillance.

Without considering Yarbrough's testimony, we conclude that, viewed in the light most favorable to the verdict, the remaining evidence tends to connect appellant with the offense. Thus, the evidence is sufficient to corroborate Yarbrough's testimony as required by art. 38.141.

We next review the evidence, including Yarbrough's testimony, for legal sufficiency. Scott Williams, a chemist with the Texas Department of Public Safety's laboratory, testified that the substance sold to Williamson contained 1.64 grams of cocaine, a second degree felony amount. See Tex. Health & Safety Code Ann. § 481.112(c) (Vernon 2003). Yarbrough testified that appellant told her during the phone call arranging the transaction that,

"I don't have any stuff, but I can make a phone call and I can get you some." Appellant also arranged for Yarbrough to let Rodriguez borrow Yarbrough's car. Yarbrough testified that she did not deal directly with Rodriguez initially because she was more comfortable with appellant, and knew appellant could get her the cocaine. Finally, Yarbrough testified that she believed Rodriguez was acting under appellant's control. Considering this evidence in the light most favorable to the jury's verdict, we conclude that the evidence was sufficient to allow a rational jury to find the essential elements of the offense alleged beyond a reasonable doubt. ⁽³⁾ See Jackson, 443 U.S. at 319; Clewis, 922 S.W.2d at 132. Therefore, the evidence was legally sufficient to support the jury's verdict.

We next review the evidence for factual sufficiency. In doing so, we review all of the evidence in a neutral light to determine whether a rational jury could have found appellant guilty beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484.

In addition to evidence we have previously noted, Rodriguez testified that appellant did not direct her to get the cocaine. She claimed that the transaction was her doing, and pled guilty to the offense. However, the jury is the final judge of the weight and credibility of the evidence. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). We will not consider a jury's findings unjust because the jury resolved conflicting views of the evidence in favor of the State. Id. at 410. Hence, the jury could have resolved the conflicting testimony by discounting Rodriguez's testimony minimizing appellant's role in the transaction and believing the evidence portraying appellant as being in control of the transaction.

Our review of the evidence leads us to conclude that (1) the evidence supporting the verdict was not too weak to support a finding of guilt beyond a reasonable doubt, and (2) the evidence contrary to the verdict was not so strong that the jury could not have found appellant guilty beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. That being so, the evidence was factually sufficient. Id.

We overrule appellant's first issue.

ISSUE TWO: INEFFECTIVE ASSISTANCE OF COUNSEL By his second issue, appellant contends that his trial counsel provided ineffective assistance by failing to (1) object to prosecutorial remarks during voir dire and closing; (2) object to remarks of the presiding judge; (3) request a directed verdict; (4) request a mistrial; (5) request a new trial; and (6) request probation from the judge after the jury returned its verdict on punishment.

A claim of ineffective assistance of counsel requires appellant to show (1) that counsel's performance was so deficient that counsel was not functioning as the "counsel" guaranteed under the Sixth Amendment, and (2) that counsel's deficient performance prejudiced appellant, depriving him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). To prevail in a claim of ineffective assistance of counsel, appellant must prove both prongs of Strickland by a preponderance of the evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000).

To successfully present an argument that counsel was ineffective because of a failure to object to the State's questioning and argument, appellant must show that the trial court would have committed error in overruling such objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996) (en banc). Appellant does not contend that the trial court would have erred in overruling an objection to the challenged prosecutorial comments. He simply claims that the statements were manifestly improper. This contention does not present anything for review. Id.

Further, although appellant claims that comments by the trial judge explaining why he was sitting by assignment were prejudicial, he fails to cite supporting authority for his contention or explain his failure to do so. See Tex. R. App. P. 38.1(h); Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000) (argument that fails to cite supporting authority presents nothing for review). This contention presents nothing for review.

Appellant's proposition that trial counsel should have moved for a directed verdict or new trial relies on the assumption that Yarbrough's testimony was inadequately corroborated and that the evidence was legally and factually insufficient to support a guilty verdict. However, we have previously determined that Yarbrough's testimony was corroborated and that the evidence was sufficient to support the conviction. Hence, appellant has not shown that he would have been entitled to a directed verdict or new trial and that trial counsel's performance prejudiced his defense. See Charleston v. State, 33 S.W.3d 96, 101 (Tex.App.-Texarkana 2000, pet. ref'd).

Regarding trial counsel's failure to request a motion for mistrial or to request probation from the trial judge after the jury's verdict, appellant does not demonstrate or contend that there was a reasonable probability that either a mistrial or probation would have been granted. He has not shown that but for counsel's action the result of the proceeding would have been different. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (en banc); Miranda v. State, 993 S.W.2d 323, 329 (Tex.App.-Austin 1999, no pet.).

Appellant has failed to show prejudice from trial counsel's representation. Hence, he has not met his burden to show ineffective assistance of counsel. See McFarland, 928 S.W.2d at 500. We overrule his second issue.

Having overruled appellant's two issues, we affirm the judgment of the trial court.

Phil Johnson

Chief Justice

Do not publish.

1. " " -

2. " "

3. § § §

d on the allocation of the burden of proof.

The trial court heard extensive testimony and admitted correspondence between Darco and RAJ evidencing the dissension between RAJ's representative Tim Bhakta and Darco personnel during construction. The trial court's findings of fact include the unchallenged findings that "RAJ, owner of the hotel, acting through its agent, Bhakta, egregiously interfered with the performance of the contract by DARCO," and "Tim Bhakta's invasions and interference caused the project to be more expensive, the scope of work more burdensome, [and] the project delayed, and disrupted DARCO's performance of its contract and quality of performance by its subcontractors."

The court also found that the project was substantially completed on or about November 25, 2002, and that Darco submitted its pay applications 11 and 12 on or about February 18, 2003. Its findings further include the statements that "[p]ursuant to the contract DARCO executed several punch lists before its construction supervisor was ordered off the property by Defendants, at which time neither DARCO nor its subcontractors could determine, inspect, investigate and perform warranty work on the hotel," and that "after DARCO had completed construction and turned the hotel over to RAJ, Bhakta and RAJ created new 'punch list' items as an excuse for not paying for DARCO's substantial performance of the contract."

Assuming, without deciding, that Darco bore the burden of demonstrating that no good faith dispute existed regarding its entitlement to payment for its pay applications 11 and 12, we find that, considering all the evidence, the trial court's apparent conclusion it met that burden is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Rodriguez, 860 S.W.2d at 418; Cain, 709 S.W.2d at 176. We overrule RAJ's third issue.

Darco's Appeal

At trial, Darco sought additional consequential damages against RAJ for breach of contract, which the trial court did not award. And, as noted, Darco asserted causes of action against RAJ for intentional interference with prospective business relations and for fraud. The trial court denied it recovery on those causes of action as well. In addition, the trial court's judgment made no provision for post-judgment interest. Raising six issues, Darco's appeal of the judgment challenges the trial court's failure to award it the additional consequential damages it sought (issues two and three); failure to award it damages for intentional interference with prospective business relations (issue four) and for fraud (issue five); and failure to award it post-judgment interest (issue six). Darco's first issue contends the trial court erred in failing to make the findings of fact Darco requested.

Consequential Damages

We begin with Darco's second and third issues on appeal. Darco contends the trial court erred by not awarding it additional consequential breach of contract damages because, Darco argues, it proved its entitlement to the damages as a matter of law. Darco accordingly seeks rendition of judgment for the claimed amounts. Darco's argument focuses on two areas in which it claims it suffered consequential damages: (1) delay damages and (2) other foreseeable damages. Consequential damages result naturally, but not necessarily, from a defendant's wrongful acts. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex. 1995). Consequential damages must be foreseeable and directly traceable to the wrongful act and result from it. Arthur Andersen, 945 S.W.2d at 816.

As Darco correctly notes, we review a trial court's fact findings under the same legal and factual sufficiency standards applicable to jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). An appellant attacking the legal sufficiency of evidence supporting an adverse finding on which it had the burden of proof must show on appeal that a contrary finding was established as a matter of law. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Darco's matter of law contention first requires examination of the record for evidence supporting the court's finding, ignoring all evidence to the contrary. If no evidence appears to support the finding, we must then examine the entire record to determine whether the contrary proposition is established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 276 (Tex.App.-Amarillo 1988, writ denied). In this context, a proposition has been established as a matter of law when a reasonable finder of fact could draw only one conclusion from the evidence presented. See generally City of Keller v. Wilson, 168 S.W.3d 802, 814-16 (Tex. 2005). Here, the "contrary proposition" Darco must establish encompasses both its entitlement to the consequential damages it sought at trial and the amount of those damages. See Ponce v. Sandoval, 68 S.W.3d 799, 809 (Tex.App.-Amarillo 2001, no pet.) (tort damages); see also Manfredi v. Lubbock Hometel Development Venture, 2000 WL 1639305 *5 (Tex.App.-Amarillo Nov. 1, 2000, no pet) (citing Martin v. Warrent Miller Co., 639 S.W.2d 706, 707 (Tex.App.-Tyler 1982, no writ)) (in the event of a reversal and rendition, an appellate court cannot supply the amount of appellant's damages).

RAJ does not point to evidence supporting the trial court's finding. It contends, though, the evidence does not establish as a matter of law that Darco sustained the claimed consequential damages. We agree with RAJ.

Darco claims the evidence established RAJ's wrongful acts caused 91 days of construction delay, that Darco suffered damages of $18,200 for its construction superintendent's salary during that period, and that Darco was entitled, in addition to its daily construction fee of $1000, to compensation for Darco president Dale Smith's "extra work" valued at $9687. The trial court's findings include the unchallenged finding that "RAJ was responsible by its conduct for substantial delays in the construction of the hotel." The court did not find that the RAJ-caused delays amounted to 91 days, however, and the record does not conclusively establish that they did so.

Darco's claim of 91 days of construction delay was supported by the testimony of its secretary/treasurer Regetta Smith. She testified that she calculated the 91-day figure by reviewing such items as reports from subcontractors and Darco's superintendent's reports. The record also contains an exhibit Mrs. Smith prepared that summarizes her testimony. The exhibit attributes 18 days of the 91-day delay to a change of construction superintendent made necessary by the resignation of Darco's original superintendent. The exhibit notes that the project "lost momentum" while the new superintendent was learning Darco's procedures and the subcontractors. Attached to the exhibit are copies of reports from the plumbing and electrical subcontractors, listing their lost time.

The trier of fact may choose to believe all, part, or none of the testimony of any particular witness. In the Interest of R.D.S., 902 S.W.2d 714, 716 (Tex.App.-Amarillo 1995, no writ). The testimony of an interested witness like Mrs. Smith, even if uncontradicted, does no more than raise an issue of fact to be determined by the trier of fact unless that testimony is clear, direct and positive, and there are no circumstances in evidence tending to discredit or impeach the testimony. McGalliard v. Kuhlman, 722 S.W.2d 694, 697 (Tex. 1986). It is clear that Mrs. Smith's calculation of the 91-day period of delay required some interpretation on her part of the reports submitted by others. The evidence presented did no more than raise an issue of fact for the trial court's resolution. Darco's claimed 91-day construction delay was not proven as a matter of law. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Rodriguez, 860 S.W.2d at 418.

Darco also contends it established its entitlement to additional damages including $207,000 in "administrative expenses," $2,766.03 in interest expenses for loans it took out to maintain cash flow, $2,600 for attorney's fees it incurred while successfully defending a suit against a subcontractor, and monies due for unpaid change orders. Again, we disagree. Darco argues that it is entitled to the $207,000 administrative expenses to compensate it for hours of work Dale and Regetta Smith devoted to addressing the problems caused by RAJ's conduct, occupying what would otherwise have been productive time. ⁽⁹⁾ But the evidence does not show that Darco paid, or was obligated to pay, the Smiths the $207,000, or that the amount reflects any other measure of loss to Darco. Further, and like the claimed interest expense and attorney's fees, we do not find evidence conclusively establishing that the claimed damages were foreseeable, directly traceable to RAJ's wrongful acts and resulting from them. Arthur Andersen, 945 S.W.2d at 816. As to its claim for unpaid change orders, Darco neither directs us to a provision in the contract entitling it to such damages nor provides authority supporting the award of such an item as consequential damages. Haynes & Boone, 896 S.W.2d at 182. Having examined the entire record, we find the evidence does not establish Darco's entitlement to its claimed consequential damages as a matter of law. Raw Hide, 766 S.W.2d at 276. We overrule Darco's issue two. Our discussion of issue two makes unnecessary our consideration of Darco's issue three, by which Darco contended the construction contract did not contain a "no damage for delay" provision.

Interference With Prospective Business Relations

Darco next argues factually insufficient evidence supported the trial court's denial of its claim for intentional interference with prospective business relations. ⁽¹⁰⁾

During construction of the Holiday Inn Express, Darco was approached by a former customer regarding the construction of a Days Inn hotel in Dumas, Texas. After negotiations, Darco prepared a contract ready for signature, but the Dumas hotel owner ultimately decided to use a different contractor. Darco alleges the Dumas hotel owner decided to use the other contractor because of Tim Bhakta's derogatory comments about Darco.

The trial court findings state that Darco and the Dumas hotel owner "engaged in serious negotiations resulting in a set of plans and specifications, costs estimates, and a proposed contract as well as affirmative statements made to others that DARCO would build said hotel." However, the district court concluded the evidence was factually insufficient to establish a claim of intentional interference with the prospective business relationship.

A party challenging on appeal the factual sufficiency of a finding on an issue on which that party had the burden of proof at trial must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242; Raw Hide, 766 S.W.2d at 276. In considering such an appellate contention, the reviewing court must consider and weigh all the evidence and may set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem., 46 S.W.3d at 242; see Maritime, 971 S.W.2d at 407 (court of appeals may set aside verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust). In our review, we may not pass upon the witnesses' credibility or substitute our judgment for that of the trier of fact, even if the evidence would clearly support a different result. Maritime, 971 S.W.2d at 407.

Darco emphasizes the testimony of its construction superintendent Billy Scott, who testified that while the Dumas hotel owner was visiting the construction site in Lubbock, Scott overheard Tim Bhakta say in the owner's presence that Darco was "screwing him, ripping him off," Darco was "making money off the subs, making money of [sic] the vendors . . . . doing crappy work," and he was going to sue Darco. Scott said Tim Bhakta made similar statements about Darco to others in the "Indian community" as well as representatives of the City of Lubbock. Scott also testified that he later had a conversation with the Dumas hotel owner when he visited the Lubbock inn shortly before it was completed. When, during that conversation, he asked the Dumas hotel owner what happened to cause Darco to lose the Days Inn project, Scott said the owner responded, "[t]he problems with Tim [Bhakta]."

Other testimony supports the trial court's rejection of Darco's intentional interference claim. Tim Bhakta testified that he "never talk[ed] bad stuff" about Darco and instead he "already recommend[ed]" Darco. Roger Narsai, vice president of Shambu, testified the Dumas hotel owner's wife did not like Darco's work on previous construction projects and that is why Darco was not awarded the Days Inn hotel project.

The Dumas Days Inn owner did not testify. As finder of fact, the trial court was not required to give credence or weight to the testimony of the witnesses who provided evidence concerning the owner's possible reasons for selecting another contractor. Maritime, 971 S.W.2d at 407; In the Interest of R.D.S., 902 S.W.2d at 716. Its failure to find that Darco's intentional interference claim was supported by the evidence was not against the great weight and preponderance of the evidence presented. Ash, 54 S.W.3d at 414-15; Dickerson v. DeBarbieris, 964 S.W.2d 680, 683 (Tex.App.-Houston [14^th Dist.] 1998, no pet.).

Fraud

Through its fifth issue, Darco contends the trial court's rejection of its fraud claim against RAJ was against the great weight and preponderance of the evidence. Darco argues the evidence established that RAJ fraudulently induced it to enter the construction contract by misrepresenting the quality and character of the plans and by concealing from Darco a letter from Holiday Inn specifying certain required architectural features.

The elements of fraud are: (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001), citing Formosa Plastics Corp. v. Presidio Engrs. & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998).

Darco cites the trial court's findings of fact, which include the finding that RAJ made false representations to Darco regarding the adequacy of the plans and specifications and that "DARCO relied upon the project plans and Defendants' representations concerning the adequacy of the plans and specifications." As noted, we construe the trial court's findings in a manner that supports its judgment. Rodriguez, 860 S.W.2d at 418. Although the trial court found Darco relied on RAJ's misrepresentations about the plans, it did not find RAJ knew they were false at the time they were made, or made them recklessly without any knowledge of their truth. FirstMerit Bank, 52 S.W.3d at 758. In support of that element, Darco points to the evidence that, because of the original contractor's failure to complete the job, RAJ was facing imminent deadlines from Holiday Inn and was over budget at the time it made its deal with Darco. Darco concludes it is "difficult to deny" that RAJ knew of its deception of Darco. We cannot agree a contrary conclusion is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem., 46 S.W.3d at 242.

The trial court also found RAJ withheld the Holiday Inn letter from Darco until after the contract was signed. Again, however, the court did not find that Darco suffered injury because it did not see the letter until after the contract was signed. As RAJ points out, the primary feature discussed in that letter was that Holiday Inn required coffered ceilings in the hotel. The evidence shows that, despite the letter, Darco did not build coffered ceilings in the hotel. ⁽¹¹⁾ The great weight and preponderance of the evidence does not demonstrate that withholding the letter caused injury to Darco. Dow Chem., 46 S.W.3d at 242.

Additional Findings of Fact

Both Darco and RAJ timely filed requests for findings and conclusions, and the trial court entered findings of fact and conclusions of law. Darco and RAJ then timely requested additional findings and conclusions. The trial court denied both requests by a written order that stated the original findings and conclusions "decide all the material disputed issues of fact and announce a basis on which the court has rendered judgment . . . ."

Rule of Civil Procedure 298 requires the trial court to file, on request, additional findings and conclusions that are appropriate. The failure to make appropriate ⁽¹²⁾ additional findings of fact and conclusions of law after a timely request requires reversal unless the record affirmatively shows the complaining party has not suffered an injury, but if the record indicates the party did not suffer injury from the court's failure to make the requested additional findings, reversal is not required. Flanary v. Mills, 150 S.W.3d 785, 792 (Tex.App.-Austin 2004, pet. denied); Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 277 (Tex.App.-Houston [14^th Dist.] 1999, pet. denied). In that regard, if the refusal to file additional findings does not prevent a party from adequately presenting an argument on appeal, there is no reversible error. Flanary, 150 S.W.3d at 792, citing ASAI v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex.App.-El Paso 1996, no writ).

Darco's requested additional findings and conclusions sought further information about the trial court's reasons for failing to award it recovery on its intentional interference and fraud claims. It asks that we abate the appeal and remand the cause, directing the trial court to enter findings and conclusions on the elements of those claims the court found wanting. Johnston involved a contention like that made by Darco here. Because the trial court did not rule on their requested amended findings and conclusions, the Johnston appellants argued they could not ascertain on what facts and grounds the trial court based its judgment denying their cause of action. 9 S.W.3d at 277. The court of appeals rejected the argument, finding no injury from the failure to file the findings, because, among other reasons, the appellants did not show the absence of the findings prevented their adequate presentation of their complaint on appeal. Id.

We find the holding applicable to Darco's contention. The trial court's original findings of fact and conclusions of law addressed Darco's intentional interference and fraud causes of action separately. Darco has presented appellate issues contending that the court's failure to sustain the causes of action was against the great weight and preponderance of the evidence, and the complete appellate record has permitted our review and disposition of those issues. Assuming Darco's requested additional findings and conclusions were appropriate, a question we do not address, we find Darco has suffered no injury from the trial court's failure to file them. Flanary, 150 S.W.3d at 792; Johnston, 9 S.W.3d at 277. Darco's first issue is overruled.Postjudgment Interest

By its sixth issue, Darco contends the trial court erred in making no award of postjudgment interest when Darco was awarded money damages for breach of contract. Section 304.001 of the Texas Finance Code states a "money judgment of a court in this state must specify the postjudgment interest rate applicable to that judgment." We agree with Darco that postjudgment interest is mandated by statute, and is recoverable even if the trial court's judgment does not mention it. See Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d 21, 25 (Tex.App.-Houston [1^st Dist.] 1996, writ denied) (discussing TEX. REV. Civ. STAT. art. 5069-1.05, the predecessor statute of section 304.001); see also Tex. Fin. Code Ann. § 304.003 (Vernon 2006) (providing postjudgment interest rates), § 304.005(a) (stating general rule for accrual of postjudgment interest on money judgment). Accordingly, we sustain Darco's sixth issue.

Having overruled RAJ's issues on appeal, and sustained only Darco's sixth issue, we modify the trial court's judgment to include an award of postjudgment interest at the Finance Code § 304.003 rate applicable to the judgment, and affirm the judgment as modified.

James T. Campbell

Justice

1. Don H. Reavis, Justice (Ret.), was on the panel that heard oral argument. He did not participate in the decision. Tex. R. App. P. 41.1(b).

2. RAJ Partners, LTD, a limited partnership, and Shambu Enterprises Corp., its general partner, were the original defendants. Thakor (Tim) Bhakta, Shambu's president, later was added as a defendant.

3. The construction contract defines "substantial completion" as follows:

[A]ll systems and construction included in the Work are completed and operational as designed, all designated or required governmental inspections and certifications have been made and posted, any designated instruction of Owner's personnel in the operation of systems has been completed, and all final finishes within the Contract Documents are in place. In general, the only remaining Work shall be minor in nature, so that the Owner could occupy the building on that date and the completion of the Work by the Contractor would not materially interfere or hamper the Owner's normal business operations. As a further condition of Substantial Completion acceptance, the Contractor shall certify that all remaining Work, the same being solely of a "punch list" nature, will be completed within thirty (30) consecutive calendar days.

4. Article 11 of the contract provides:

Installation as Acceptance. Installation by the Owner of Owner Provided Aspects prior to "punch list" items being completed by the Contractor constitutes acceptance by the Owner for these rooms and relieves the Contractor of any further construction responsibility for the rooms occupied, except for warranty performance work.

5. It is undisputed that the City of Lubbock issued a certificate of occupancy for the hotel.

6. Evidence demonstrates that some of the brickwork on the building is noticeably crooked and uneven. The joints between bricks do not line up vertically, giving a wave-like appearance to parts of the outside of the building. Brickwork on an outside corner of the building has a slight bulge and is described as out of plumb by two inches. Individual bricks in some places protrude slightly from the face of the wall.

7. As will be discussed more fully later in this opinion, in addition to its breach of contract and lien foreclosure claims, Darco asserted tort claims including fraud and intentional interference with a prospective business relationship.

8. The construction contract provided for interest on past due payments of 1% per month.

9. Darco's exhibit showing the calculation of the $207,000 attributes 1032 hours of Dale Smith's time at an hourly rate of $125 and 1560 hours of Regetta Smith's time at $50 per hour. The exhibit states that it reflects "administrative time necessary for work on law suit."

10. The elements of a claim for tortious interference with a prospective business relationship include:

(1) a reasonable probability that the parties would have entered into a contractual relationship;

(2) an "independently tortious or unlawful" act by the defendant that prevented the relationship from occurring;

(3) the defendant did such act with a conscious desire to prevent the relationship from occurring or he knew that the interference was certain or substantially certain to occur as a result of his conduct; and

(4) the plaintiff suffered actual harm or damage as a result of the defendant's interference.

Ash v. Hack Branch Distributing Co., Inc., 54 S.W.3d 401, 414-15 (Tex.App.-Waco 2001, pet. denied).

11. The record contains some evidence Holiday Inn at the time of trial still was asserting that the ceilings must be rebuilt in compliance with its specifications, but that eventual outcome is far from clear on this record.

12. See Kirby v. Chapman, 917 S.W.2d 902, 909 (Tex.App.-Fort Worth 1996, no writ) (listing limitations on trial court's duty to make additional findings).