Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 367th District Court Denton County, Texas
Trial Court No. 16-10107-367
Sudderth, C.J.; Birdwell and Bassel, JJ.
Sudderth, Chief Justice.
Rembert Enterprises, Inc. sued Appellees 1309, LLC, Charlie
Cummings, and Jo Cummings for breach of oral and written
contract, common law fraud, and fraud in the inducement
regarding the sale of 336 acres of land. During the jury
charge conference, Rembert objected to the inclusion of an
instruction in one of the questions. The trial court
overruled Rembert's objection. Based on the jury's
answers, the trial court entered a take-nothing judgment for
Rembert. Rembert moved for a new trial, but the trial court
denied the motion after a hearing. This appeal followed.
two issues, Rembert complains that the trial court
inappropriately included commentary from the pattern jury
charge meant for judges and attorneys in one of the jury
questions. Although Rembert concedes that the disputed jury
instruction accurately stated the law, it argues that the
instruction was not supported by the pleadings and evidence
and impermissibly induced the jury to decide a question of
law. Among other arguments, Appellees respond that Rembert
has failed to show harmful error. We agree.
charge instruction is proper if it (1) assists the jury, (2)
accurately states the law, and (3) finds support in the
pleadings and evidence. Seger v. Yorkshire Ins. Co.,
503 S.W.3d 388, 408 (Tex. 2016). Surplusage, even if a
correct statement of the law, is error. See Acord v. Gen.
Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984) ("The
jury need not and should not be burdened with surplus
instructions."); Francis v. Ford, No. 02-
10-00343-CV, 2011 WL 3546626, at *3 (Tex. App.-Fort Worth
Aug. 11, 2011, no pet.) (per curiam) (mem. op.) ("[T]he
jury should not be burdened with surplus instructions, even
those that accurately state the law."). But even
erroneous surplusage is subject to a harm analysis.
See Tex. R. App. P. 44.1(a) (stating that no
judgment may be reversed on appeal on the ground that the
trial court made an error of law unless the court of appeals
concludes that the error complained of either probably caused
the rendition of an improper judgment or probably prevented
the appellant from properly presenting the case to the court
determine harm, we must first ascertain whether the case was
closely contested. Timberwalk Apts., Partners, Inc. v.
Cain, 972 S.W.2d 749, 755 & n.23 (Tex. 1998) (citing
Lone Star Gas Co. v. Lemond, 897 S.W.2d 755, 756
(Tex. 1995)). In a closely contested case, the inclusion of
surplusage is likely to be harmful because it tends to nudge
the jury toward a particular verdict. See id. at
756. In determining whether error in a jury charge probably
caused the rendition of an improper judgment so as to require
reversal, we are supposed to analyze the entire
record. Id.; see also United Scaffolding, Inc.
v. Levine, 537 S.W.3d 463, 469 (Tex. 2017) ("In
reviewing alleged error in a jury submission, we consider
'the pleadings of the parties and the nature of the case,
the evidence presented at trial, and the charge in
its entirety.'" (emphasis added) (quoting
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284
S.W.3d 851, 862 (Tex. 2009)).
not know if this case was closely contested because the
appellate record supplied to us contains only the
reporter's record of the jury charge conference, the
entry of the final judgment, and the motion for new trial. In
its brief, under the heading "Facts of Case," which
contains a single record reference to the clerk's record,
cf. Tex. R. App. P. 38.1(g), Rembert states,
"The facts of this case are not particularly salient to
this appeal and are provided primarily to give the Court a
basic narrative without getting into facts which were
contested in court." [Emphasis added.]
appellate procedure 34.6(c), "Partial Reporter's
Record," states that if an appellant requests a partial
reporter's record, it must include in the request a
statement of points or issues to be presented on appeal and
will then be limited to those points or issues. Tex.R.App.P.
34.6(c)(1). If the appellant complies with rule
34.6(c)(1)'s requirements, then the appellate court must
presume that the partial reporter's record designated by
the parties constitutes the entire record for purposes of
reviewing the stated points or issues. Tex.R.App.P.
34.6(c)(4). But if the appellant fails to comply with rule
34.6(c)'s requirements, a contrary presumption arises:
the reviewing court must instead presume that the missing
portions of the record contain relevant evidence and that the
omitted evidence supports the trial court's judgment.
Lyons v. Denton ISD, No. 02-18-00141-CV, 2018 WL
6565804, at *2 (Tex. App.-Fort Worth Dec. 13, 2018, no pet.)
(mem. op.). Rembert did not file a request for the
reporter's record with the trial court clerk.
See Tex. R. App. P. 34.6(b), (c).
the portions of the reporter's record provided to us in
this appeal do not include any of the evidence
presented to the jury during the trial, we cannot assess
whether this case was closely contested or evaluate any
confusion the surplusage may have caused. And because Rembert
did not comply with rule 34.6(c)'s requirements, we are
required to presume that the missing-evidentiary-portions of
the record support the trial court's judgment.
See Tex. R. App. P. 34.6(c)(4); Lyons, 2018
WL 6565804, at *2; cf. Timberwalk Apts., 972 S.W.2d
at 756 ("Given the vigorous evidentiary dispute over the
significance of written notice and counsel's closing
argument, we conclude that the surplus instruction probably
did improperly and unduly nudge the jury to find against
Cain."). Accordingly, we overrule Rembert's two
issues and affirm the trial court's judgment.
See Tex. R. App. P. 44.1(a).
The Texas Pattern Jury Charges
are prepared by the Committee on Pattern Jury Charges of the
State Bar of Texas "as a guide for the bench and
bar" in preparing broad-form submissions, instructions,
and questions. 4 McDonald & Carlson Tex. Civ. Prac.
§ 22:16 (2d. ed.). "The comments to each PJC
provide a ready reference to the law that serves as a
foundation for the charge" but may also include
variations of the recommended forms and additional questions
or instructions "for special circumstances." Comm.
on Pattern Jury Charges, State Bar of Tex., Texas Pattern
Jury Charges: Business, Consumer, Insurance, &
Employment PJC introduction, at xxxix (2018). Thus, some
of the PJC comments may be appropriate for inclusion,
depending on the circumstances of the case, but they are to
be used by the trial court and attorneys- not the jury-in
preparing the court's charge. Id. at xxxvii;
see generally USAA Tex. Lloyds Co. v. Menchaca, 545
S.W.3d 479, 501-02 & nn.23-24 (Tex. 2018) (op. on
reh'g) (observing that the PJC offers a variety of
proposed questions and instructions, including alternative
questions and instructions, and that the PJC committee
"suggests '[c]are must be taken to ...