









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-01-00215-CR

______________________________



BRANDI EDWARDS, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 336th Judicial District Court

Fannin County, Texas

Trial Court No. 20023







Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter


O P I N I O N


	Brandi Edwards appeals from her conviction by a jury for the offense of aggravated sexual
assault of a child.  The jury assessed punishment at forty years' imprisonment and a $10,000.00 fine.
	Edwards contends (1) the trial court erred by admitting the child's videotaped statement into
evidence, (2) the statute permitting the admission of such evidence is unconstitutional, (3) the State's
experts were improperly permitted to provide opinion testimony about the perceived truthfulness of
the child, and (4) the admission of testimony by the sexual assault nurse examiner about statements
made by the child was violative of Edwards' right of confrontation.  Edwards also contends that the
cumulative effect of all these errors denied her right to due process under the United States
Constitution and that the evidence is legally and factually insufficient to support the verdict.
	We first address Edwards' contention the videotape of the interview with the child was
improperly admitted into evidence.  Edwards contends the State never moved the trial court to
declare the child unavailable, no hearing was held on that matter, and the State never presented
evidence to show the child was unavailable.  She also argues that, because there was no specific
finding the child was unavailable to testify in the presence of the appellant, the trial court violated
Tex. Code Crim. Proc. Ann. art. 38.071, § 1 (Vernon Supp. 2003) and the Sixth and Fourteenth
Amendments to the United States Constitution.  See U.S. Const. amends. VI, XIV.
	The child, a five-year-old female, did not testify in open court, but a videotape of an
interview conducted with her was presented to the jury.  Counsel objected on grounds including
hearsay, confrontation, and the unavailability issue.  The objections were overruled.  
Does the evidence support a determination that the child was unavailable?
	The right to confront witnesses is a fundamental right established by the Sixth Amendment
to the United States Constitution and made applicable to the states by the Fourteenth Amendment. 
Pointer v. Texas, 380 U.S. 400 (1965).  Likewise, as explained below, the law has recognized that
children who are victims of violent crimes may in some instances be so traumatized by testifying in
open court in the presence of the accused that an accommodation should be made.  
	Texas, and many other states, have enacted statutes that allow a child abuse victim to testify, 
under limited circumstances, in settings outside the traditional in-court procedure.  The United States
Supreme Court in Maryland v. Craig, 497 U.S. 836, 844-46 (1990), declared such statutes
constitutional if they meet certain requirements.  The basic requirement is the trial court must be
convinced such a procedure is necessary to protect the welfare of the child.  Id. at 855.  Without
evidence of this nature and a review of such evidence by the judge, such out-of-court testimony is
constitutionally inadmissible.  Id. at 855-56.  In reaching this conclusion, the Court held that:
	[I]f the state makes an adequate showing of necessity, the state interest in protecting
child witnesses from the trauma of testifying in a child abuse case is sufficiently
important to justify the use of a special procedure that permits a child witness in such
cases to testify at trial against a defendant in the absence of face-to-face confrontation
with the defendant.  
Id.; Marx v. State, 987 S.W.2d 577, 580 (Tex. Crim. App. 1999).
	The Texas statute (1) generally incorporates the mandate of Craig.  It expresses the concept that
a child may be "unavailable" to testify in open court in certain circumstances.  Usage of such out-of-court testimony is authorized only after the court determines the child is unavailable to testify in the
presence of the defendant.  Tex. Code Crim. Proc. Ann. art. 38.071(1), (2).  It sets out the type of
evidence that must be considered by the trial court:  the relationship of the child and the defendant,
the alleged offense, age, maturity, and emotional stability of the child, and the time elapsed since the
offense.  Id.  
	It further allows the court to consider the emotional or physical effects on the child in
confronting the defendant and whether the child would suffer undue psychological harm by testifying
at trial.  Cf. Lively v. State, 968 S.W.2d 363, 366 (Tex. Crim. App. 1998).  In this case, no evidence
was introduced for the trial court to consider.
	Before a videotaped interview of a child may be used, the court must determine the child is
unavailable based on proper reasons, including the factors set out by Tex. Code Crim. Proc. Ann.
art. 38.071, § 8 (Vernon Supp. 2003).  See Lively, 968 S.W.2d at 366-67.  In Craig, the Supreme
Court recognized that the central concern of the Confrontation Clause (of the Sixth Amendment) is
to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous
testing in the context of an adversarial proceeding before the trier of fact.  Craig, 497 U.S. at 844-46.
	The requisite necessity to justify the use of such a special procedure in a child abuse case may
be shown if the trial court hears evidence and makes a case specific determination that (1) the use
of the procedure is necessary to protect the welfare of the particular child witness who seeks to
testify; (2) the child witness would be traumatized by the presence of the defendant; and (3) the
trauma would be more than de minimis, i.e., more than mere nervousness or excitement or some
reluctance to testify.  Id. at 856; Lively, 968 S.W.2d at 366-67; see Hightower v. State, 822 S.W.2d
48, 51 (Tex. Crim. App. 1991); Gonzales v. State, 818 S.W.2d 756, 760-62 (Tex. Crim. App. 1991). 
	In reviewing the trial court's implied finding of unavailability, we look to see whether the trial
court abused its discretion in making that determination.  See Marx, 987 S.W.2d at 580-81.  We will
not reverse a trial court ruling within the zone of reasonable disagreement.  Green v. State, 934
S.W.2d 92, 102 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1990) (op. on reh'g).
	 In this case, the State presented no evidence of the necessity for the child to testify by
videotape and the court permitted videotaped testimony from the child.  In so doing, it allowed
evidence into the record in violation of both the Texas statute and the United States Constitution.
The ruling of the trial court is therefore outside the zone of reasonable disagreement.  The State has
not made the required adequate showing of necessity.  See Craig, 497 U.S. at 855.  In the absence
of the constitutionally required showing that the child was unavailable and that special procedures
were therefore authorized, we conclude the trial court abused its discretion by admitting the
evidence.
Harm Analysis
	This is not merely an error in the admission of evidence based solely on the misapplication
of a rule or statute.  It is a constitutional error violating the Confrontation Clause.  Accordingly, our
analysis is a harmless error review pursuant to Tex. R. App. P. 44.2(a), and we must reverse unless
we determine beyond a reasonable doubt the error did not contribute to the conviction or punishment.
	The evidence that Edwards committed the offense consists of the videotaped interview with
the child, a discussion by an expert explaining the child's statements and actions on the videotape,
opinions about the type of sex offender shown by the facts revealed by the interview, explanations
about the types of questions asked in the videotape, and ways of determining the child's ability to
distinguish fact from fiction.  A school counselor also testified as the outcry witness that the child
had told her she had sex with the defendant.  A teacher's aide testified that the child "acted out" in
a sexual manner in class and that she attempted to touch other children in what was described as an
inappropriate manner.
	The videotape sets out the actions of Edwards in a manner that does not appear elsewhere
in the evidence.  The only evidence unrelated to the interview is that of the school counselor and
teacher's aide, and only the counselor, as the outcry witness, could testify regarding the child's
statements.  In light of the state of the evidence, we cannot conclude beyond a reasonable doubt the
improperly admitted videotape did not contribute to the conviction or punishment in this case.
	The judgment is reversed, and the cause is remanded to the trial court for further proceedings.



						Jack Carter
						Justice

Date Submitted:	March 17, 2003
Date Decided:		March 18, 2003

Publish

1. Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon Supp. 2003).


amount that it cost Mustang to complete the pipeline.  The jury charge
contained language limiting any recovery to "[t]he reasonable and necessary costs incurred by
Mustang Pipeline Company to complete the pipeline less the amount agreed to between Mustang . . .
and . . . Driver . . . to construct the pipeline."  The position taken by Driver and accepted by the trial
court is that this evidence was legally insufficient because there was no evidence before the jury to
show that the amount that was admittedly paid was "reasonable and necessary" to complete the work. 
	Mustang directs this court to substantial evidence about the extent of damages.  It does not
direct this court to any evidence from any source to suggest that the actual expenditures that it made
were reasonable or necessary-merely that those were the amounts expended in completing the
pipeline.  Mustang argues correctly that it is not necessary for the witnesses to repeat the magic
words "reasonable and necessary" in order to provide evidence that expenses are in fact "reasonable
and necessary."  As long as the evidence sufficiently shows that the expenses were reasonable and
necessary, it is not required that particular "magic words" be used by the witnesses. (6)

	  Damages for breach of contract are the contract price, less the cost of completion.  Sage
Street Assocs. v. Northdale Constr. Co., 937 S.W.2d 425, 426 (Tex. 1996).  As applied in
construction cases, the general rule is that the correct measure of damages resulting from the breach
of a building contract is the reasonable cost of remedying the defects which constitute the breach. 
Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956); Warner v. Irving
Lumber Co., 584 S.W.2d 893, 896 (Tex. Civ. App.-Dallas 1979, no writ); County of Tarrant v.
Butcher & Sweeney Constr. Co., 443 S.W.2d 302 (Tex. Civ. App.-Eastland 1969, writ ref'd n.r.e.);
Cooper Concrete Co. v. Hendricks, 386 S.W.2d 221 (Tex. Civ. App.-Dallas 1965, no writ). 
However, the fact of payment, standing alone, is no evidence that expenses were reasonable and
necessary.  Ashley v. Bizzell, 694 S.W.2d 349, 354 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.);
Truck Farm, Inc. v. Allen, 608 S.W.2d 296, 297 (Tex. Civ. App.-Dallas 1980, no writ). 
	Similarly, in the analogous area of repairs (rather than new construction), a party seeking
recovery for the cost of repairs must prove their reasonable value.  See, e.g., Ebby Halliday Real
Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex. App.-Fort Worth 1996, writ denied); GATX Tank
Erection Corp. v. Tesoro Petroleum Corp., 693 S.W.2d 617, 619 (Tex. App.-San Antonio 1985, writ
ref'd n.r.e.) (stating "[i]t is incumbent upon the parties seeking recovery for the cost of repairs to
prove the reasonable value of such repairs").  Ordinarily, to establish the right to recover costs of
repairs, it is not necessary for a claimant to use the words "reasonable" and "necessary"; a claimant
need only present sufficient evidence to justify a jury's finding that the costs were reasonable and the
repairs necessary.  Fort Worth Hotel Ltd. P'ship v. Enserch Corp., 977 S.W.2d 746, 763 (Tex.
App.-Fort Worth 1998, no pet.); see Murnan, 916 S.W.2d at 589; Ron Craft Chevrolet, Inc. v. Davis,
836 S.W.2d 672, 677 (Tex. App.-El Paso 1992, writ denied).  However, mere proof of amounts
charged or paid does not raise an issue of reasonableness, and such amounts ordinarily cannot be
recovered without evidence showing the charges were reasonable.  Fort Worth Hotel Ltd. P'ship, 977
S.W.2d at 762-63; see Murnan, 916 S.W.2d at 589;  GATX Tank Erection Corp., 693 S.W.2d at 620;
Bradley v. Castro, 591 S.W.2d 304, 306 (Tex. Civ. App.-Fort Worth 1979, no writ); Frost Nat'l
Bank of San Antonio v. Kayton, 526 S.W.2d 654, 666-67 (Tex. Civ. App.-San Antonio 1975, writ
ref'd n.r.e.);  Allright, Inc. v. Lowe, 500 S.W.2d 190, 191 (Tex. Civ. App.-Houston [14th Dist.]
1973, no writ).
	These cases hold that a plaintiff cannot recover damages just by proving how much it spent. 
It must also provide evidence that the amount spent was reasonable and necessary.  But see Liptak
v. Pensabene, 736 S.W.2d 953, 958 (Tex. App.-Tyler 1987, no writ) (holding that the testimonies
of three qualified expert witnesses about the damages done to a house by termites, and their opinions
as to what the repairs would cost, was some evidence that the cost of repairs was "reasonable and
necessary," although those words were not used in their testimonies) (citing English v. Fischer, 649
S.W.2d 83, 91-92 (Tex. App.-Corpus Christi 1982), rev'd on other grounds, 660 S.W.2d 521 (Tex.
1983)).
	Mustang makes no effort to direct this court to any testimony that would tend to show that
the amount paid was reasonable or necessary. (7)  It did attempt to introduce such evidence by a rebuttal
witness.  The trial court refused to permit the testimony-because there was nothing for it to rebut. 
Driver did not call its own expert (in fact, at the discussion about Mustang's rebuttal witness, counsel
stated that he had called his expert and told him to turn around and go home because he would not
be needed), who would have testified about the unreasonableness of the amounts paid, because
Mustang did not provide any such evidence for him to controvert.  
	There is considerable evidence the amounts paid were correct under the terms of the new
contract with Sunland which, as noted above, was entered into at a substantially higher pricing level
than the bid Sunland had originally made in an effort to initially obtain the job.  There is evidence
this resulted in the expenditure by Mustang of four million dollars more than was contemplated in
the original bid contract with Driver.  There is testimony Mustang paid Sunland the amounts shown
to be due under the terms of the new contract.  There is also evidence about the terms of Sunland's
original bid for the contract when it was originally let and also about the amount that the newly
agreed contractual amount was increased for the changed requirements. 
	That is not the same as providing evidence that the agreed on amounts charged were
reasonable for the work done.  What is lacking is any evidence that the contract itself and the
amounts Mustang agreed to pay as set out by that contract were reasonable.  The fact Mustang
accepted the contract in a nonbid situation is not evidence the charges were reasonable. 
	The weight of authority indicates that the mere evidence of the amounts paid-without
more-is no evidence that those amounts were reasonable.  The necessity of completing the pipeline
was shown by the evidence of the failure to complete the contract by Driver and the completion by
another contractor.  That does not suffice to show that the cost of the work was reasonable. 
Accordingly, the trial court correctly granted a j.n.o.v. on that issue. 
	Mustang next contends that the jury's answer to question two, that Mustang was unjustified
in terminating the contract, is immaterial.  Mustang argues that because the jury also found that
Driver did in fact breach the contract, it was as a matter of law entitled to terminate if any breach of
contract actually occurred.  That was not the theory presented at trial.  At trial, Mustang relied on the
portion of its contract that permitted it to terminate for cause.  That clause contains the operative
language that was presented to the jury in the charge.  
	Mustang now attempts to apply the underlying common-law question of whether it was
legally entitled to terminate the contract because of the breach.  A party may typically only terminate
a contract when the breach of contract is found to be a material breach.  A party to a contract may
elect to terminate the contract and be excused from performance of any executory obligation if the
other party repudiates the contract or commits a material breach.  Lazy M Ranch, Ltd. v. TXI
Operations, LP, 978 S.W.2d 678, 680-81 (Tex. App.-Austin 1998, no pet.); MJR Corp. v. B & B
Vending Co., 760 S.W.2d 4, 20-21 (Tex. App.-Dallas 1988, writ denied); Corso v. Carr, 634 S.W.2d
804, 808 (Tex. App.-Fort Worth 1982, writ ref'd n.r.e.). (8)  The jury was not instructed on the concept
of "material" breach because it was not contained within the jury question submitted by Mustang. (9) 
	We have reviewed the proposed instruction.  It does not explain materiality to the fact finder
in any respect, but only contains portions of the contract which Mustang contends are material
clauses.  This is not a submission which would assist the fact finder in determining the necessary
question, which is whether any breach was material. (10)  The mere provision of contractual language
without explanation is insufficient to act in any respect as a proposed charge on materiality. (11)
	Our review is controlled by the posture of this case as an appeal from a j.n.o.v.  The question
is whether the trial court should have granted Mustang's motion for j.n.o.v. and disregarded the jury's
answer to the question of whether its termination was justified as immaterial.  
	A trial court may disregard a jury's finding if it is immaterial.  See Spencer v. Eagle Star Ins.
Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994).  A question is immaterial when it should not have
been submitted or when it has been rendered immaterial by other findings.  Id.; Crescendo Inv., Inc.
v. Brice, No. 04-00-00101-CV, 2001 WL 576586, at *6 (Tex. App.-San Antonio May 30, 2001, no
pet. h.).    
	In order for Mustang to prevail on this point, we would have to conclude that any breach
would suffice to justify termination of the contract.  The law does not support that position, and that
is precisely what this charge was designed to avoid.  This is not a generic jury question, but is one
that is tailored to the allegations of this case and based on the terms of the contract between the
parties.  It clearly asks the jury to decide whether Mustang was justified in terminating the contract
in accordance with specified contractual terms allowing such action.  The jury found that it was not. 
This issue is not "immaterial," but provides the second level of determination for the fact finder. 
From its answer to that issue, the court could then apply contract law to the finding.  Thus, the trial
court did not err by applying the jury's finding, because the question was not immaterial.
	Mustang further contends that because the jury found that Driver was in breach, jury
questions two and four should have been disregarded as immaterial because it was not required to
continue to perform under the terms of the contract.  This again raises the question of whether
Driver's breach was material.  When a party materially breaches a contract, the nonbreacher may treat
the contract as ended and cease performance.  Graco Robotics, Inc. v. Oaklawn Bank, 914 S.W.2d
633, 641 (Tex. App.-Texarkana 1995, writ dism'd); Morgan v. Singley, 560 S.W.2d 746, 748 (Tex.
Civ. App.-Texarkana 1977, no writ). (12)
	As previously stated, the jury was not asked to determine whether the actions constituting
Driver's breach of contract was material, and no such question was requested by Mustang. (13) 
However, on appeal Mustang argues that the contract clearly sets out that "time is of the essence,"
and argues that this is necessarily a material breach.  Based on that premise, Mustang asks this court
to find that the breach found by the jury was material, and to then further conclude that Mustang was
excused from further performance. 
	Whether a breach of contract is so material as to authorize the other party to repudiate the
contract is a question of fact to be determined by the trier of fact, and such a determination
necessarily turns on the facts of each case. (14) Briargrove Shopping Center Joint Venture v. Vilar,
Inc., 647 S.W.2d 329, 333 (Tex. App.-Houston [1st Dist.] 1982, no writ); Advance Components, Inc.
v. Goodstein, 608 S.W.2d 737, 739 (Tex. Civ. App.-Dallas  1980, writ ref'd n.r.e); Cowman v. Allen
Monuments, Inc., 500 S.W.2d 223, 226  (Tex. Civ. App.-Texarkana 1973, no writ).
	This is necessarily the situation in a case such as this because the question of whether a "time
is of the essence" clause justifies termination of the contract is not necessarily controlled entirely by
the written word.  In that vein, courts have held that even where time is of the essence, a stipulated
time limit may be extended either by agreement or by waiver.  Puckett v. Hoover, 146 Tex. 1, 202
S.W.2d 209 (1947); Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454 (1943); Laredo Hides Co. v.
H. & H. Meat Prods. Co., 513 S.W.2d 210 (Tex. Civ. App.-Corpus Christi 1974, writ ref'd n.r.e.). 
Such a waiver "not only may be shown by parol, but may be made to appear from the circumstances
or course of dealing."  Puckett, 202 S.W.2d at 212; Smith v. Hues, 540 S.W.2d 485, 488 (Tex. Civ.
App-Houston [14th Dist.] 1976, writ ref'd n.r.e.); see Shaver v. Schuster, 815 S.W.2d 818 (Tex.
App.-Amarillo 1991, no writ).
	The jury was not asked whether the breach was material, and in the absence of a jury's
finding, the trial court was not required to treat the breach as such as a matter of law.  Therefore, the
trial court did not err by overruling Mustang's motion for j.n.o.v. sought on the ground that the court
should disregard jury questions two and four.
	Mustang further contends that the evidence is legally and factually insufficient to support the
jury's answer to question two (that it was not justified in terminating the contract).  
	When deciding a no-evidence point, in determining whether there is no evidence of probative
force to support a jury's finding, we must consider all of the evidence in the record in the light most
favorable to the party in whose favor the verdict has been rendered, and we must apply every
reasonable inference that could be made from the evidence in that party's favor.  Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  In this review, we disregard all evidence
and inferences to the contrary.  Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995);
Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex. 1990).  A no-evidence point will be
sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c)
the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.  Uniroyal Goodrich Tire Co. v. Martinez, 977
S.W.2d 328, 334 (Tex. 1998).
	When considering a factual sufficiency challenge to a jury's verdict, courts of appeals must
consider and weigh all of the evidence, not just that evidence which supports the verdict.  Maritime
Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).  We can set aside the verdict only if it
is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and
unjust.  Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  The court of appeals is not a fact finder. 
Accordingly, we may not pass on the witnesses' credibility or substitute our judgment for that of the
jury, even if the evidence would clearly support a different result.  Maritime, 971 S.W.2d at 407. 
	Our factual review of the evidence for sufficiency is governed by the language of the jury
question and the evidence bearing on that question.  Driver provided evidence that it had sixty men
working on the job and pointed out repeatedly that Mustang had never complained that it had too few
men working.  There was no indication that the workers were inadequately skilled, and there was no
evidence at all that they disregarded the instructions of the supervising engineer.
	A certificate was obtained from Fluor Daniel Williams Brothers (Fluor) (the supervising
engineering firm) that cause existed to terminate the work of Driver, but the evidence indicates that
the method of giving written notice of termination was not in accordance with the terms of the
contract-as Mustang terminated the contract and sued Driver without giving notice as required. 
	The supervising engineer stated in the certificate of default that more men and equipment
were needed.  There is evidence, however, that the engineer actually had no idea how many men
were on the job, or were needed, or what type of equipment was needed.  Also, the engineer had
never visited the work site or otherwise observed the operation. 
	The evidence also showed that Troy Construction, Inc. (Troy), the company building the
south section of the pipeline, was unable to complete its portion timely, although Mustang had stated
that Troy was on schedule.  Further, Troy sought and obtained a thirty-day extension for adverse
weather only a few days after Mustang refused to give Driver a thirty-day extension sought for the
same reasons. 
	The foregoing constitutes some evidence to support the jury's answer to question two.
	The remaining issue is whether the evidence is factually sufficient to support the answer to
question two.  In addition to the testimony set out above, Mustang points to the uncontrovertible fact
that Driver was only fifteen percent complete with sixty percent of its time gone.  Mustang points
out that Driver refused to leave the wet areas and work on portions of the line that were drier-and
that the moves would have been done at Mustang's expense.  However, Fluor's internal reports
characterized the weather conditions as "abysmal" and acknowledged twenty-six rainout days.
	The contract also contains language providing for the grant of additional time in the event
of lost days due to weather, and the evidence shows that the pipeline on the south portion was
delayed by at least thirty days from completion due to weather delays. (15)  Further, the evidence is
conflicting as to whether Driver had accepted the seven-day-a-week fourteen-week schedule with
the understanding between the parties that it was necessarily dependent on the amount of weather
stoppages involved.
	Mustang has not shown that the jury's verdict was against the great weight of the evidence. 
We must therefore conclude that it was factually sufficient to support the jury's answer to question
two.
	In an alternative argument, Mustang also contends that a second termination provision found
in Section 3.4402 of the contract authorized termination of the contract by Mustang for mere
convenience, and for any reason, and that in light of that provision, the jury's finding that Mustang
was unjustified in terminating the contract cannot withstand a legal or factual sufficiency review. 
	This issue was not presented to the jury.  Mustang directs this court to no authority that would
entitle it to obtain a verdict at this point on a ground not urged below.  We have been directed to no
location in the record where it was argued to the trial court.  It is the court's charge, not some other
unidentified law, that measures the sufficiency of the evidence when the opposing party fails to
object to the charge.  Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). 
	Because of our conclusions on these contentions of error, we need not address the remaining
points brought on appeal.  

	The judgment is affirmed.


						Ben Z. Grant
						Justice

Date Submitted:	October 24, 2001
Date Decided:		February 13, 2002

Publish
1. The contract also contains a "force majeure" clause suspending the duties of the parties if
performance was prevented by an act of God, but concluding that "[i]t is specifically agreed and
understood, however, that notwithstanding this Article or any other Article hereof, Company
[Mustang] shall have the right to immediately terminate this Contract if the Contractor is, or may be,
rendered unable to perform hereunder for any reason."  Mustang did not seek to terminate the
contract under the language of this clause, but instead did so under the clause permitting termination
for cause.
2. Specifically, Mustang provided evidence in chart form that it cost

		$14,216,255		Total costs to complete the north spread
	less 	$10,742,765 		Total Driver contract amount
		$ 3,473,490
 	plus	$    642,957		Lost net profits due to delay in completion
	less	$      51,161		Agreed payment to Driver for mats, flumes, and skids
		$ 4,065,286		TOTAL CLAIM
3. Mustang pointed out in a post-submission brief that language in the damage issue of the jury
charge allowed the jury to award Driver a recovery for lost profits.  Mustang did not, however, raise
a point of error regarding the jury's finding on this issue on appeal.
4. Mustang states in its brief that the trial court found evidence to support a breach of contract
but disregarded the damages because there was no evidence to support that award.  The judgment
does not state that the court found evidence to support a breach of contract.  The judgment does
explicitly state that the court found there was no evidence of probative force to support the damage
award and then granted the j.n.o.v.  Mustang has also argued the record of the hearing demonstrates
the trial court was granting the motion to disregard only as to the question on damages.   We agree
with Mustang the j.n.o.v. specifies it was granted on damages.  This is not equivalent, however, to
a statement in the j.n.o.v. that the court found evidence to support a breach of contract.  We are
bound by the judgment, and that judgment is the document under review by this court.  Courts may
not import reasoning or discussions from the trial into the final, written judgment to alter or amend
its language.  
5. Mustang's waiver argument is based in part on our opinion in Dougherty v. Gifford, 826
S.W.2d 668, 680 (Tex. App.-Texarkana 1992, no writ).  In that opinion, we stated:

		Dougherty argues that there was no evidence that the past medical expenses
were necessary and reasonable, and an award including these amounts is
impermissibly speculative.  See Roth v. Law, 579 S.W.2d 949, 956 (Tex. Civ.
App.-Corpus Christi 1979, writ ref'd n.r.e.). Dougherty and Molina made no
objection to the evidence of past medical expenses on this or any other ground. 
Indeed, their counsel expressly stated that he had no objection to such evidence.  Any
error in this respect was waived. 

Although our phrasing of this conclusion could have been clearer, the surrounding language shows
that we first overruled a contention that evidence was improperly admitted, in part because there was
no timely objection on that basis, and then concluded that the properly admitted evidence was
sufficient to support the verdict.  This case does not suggest that if a party fails to complain about
the admission of evidence, that party has waived his right to complain that the evidence admitted was
insufficient to support the verdict.  
6. A plaintiff must present sufficient evidence to justify the jury's finding that the costs of
repair or replacement were reasonable and necessary.  Ron Craft Chevrolet, Inc. v. Davis, 836
S.W.2d 672, 677 (Tex. App.-El Paso 1992, writ denied).  "Reasonable" and "necessary" are not
"magic words" that a witness must incant.  Merchants Fast Motor Lines, Inc. v. State, 917 S.W.2d
518, 523 (Tex. App.-Waco 1996, writ denied); Ron Craft Chevrolet, Inc., 836 S.W.2d at 677;
Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 694 (Tex. App.-Austin 1989, no writ).  
7. A representative of Sunland Construction, James Daigler, the company that completed the
pipeline, testified that its original bid for the entire job was less than the amount Sunland charged
to complete the job.  He further testified that Sunland believed its original bid was reasonable.
8. Mustang argues that the material breach requirement is limited to situations in which a party
seeks specific performance.  Although several of the cases cited do involve that type of situation,
they do not limit the application of that concept to that context.  See generally Cowman v. Allen
Monuments, Inc., 500 S.W.2d 223 (Tex. Civ. App.-Texarkana 1973, no writ).
9. The jury question read as follows:

		Did Driver Pipeline Company fail to comply with the contract it had with
Mustang Pipeline Company?

	Answer "Yes" or "No"

	Answer:        Yes        
10. The proposed instruction read as follows:

	You are instructed that:

	1.	The contract required Driver Pipeline Company to continuously, faithfully
and diligently perform the work in order to complete the pipeline system no
later than April 30, 1997.

	2. 	The work to be performed included all work necessary to construct a high
pressure pipeline system ready to be operated. 

	3. 	Driver Pipeline Company was required to furnish sufficient forces and
equipment at all times to adequately perform the work with ample margin for
emergencies and unexpected events, and was required to ensure completion
no later than April 30, 1997. . . .
11. Mustang points out there are no cases setting out proper language for a materiality
instruction.  The Pattern Jury Charges, however, provide some direction in connection with this
concept at Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury
Charges PJC 101.22 (2000).
12. The nonbreacher may then sue for the benefit of the bargain.  Graco Robotics, Inc. v.
Oaklawn Bank, 914 S.W.2d 633, 641 (Tex. App.-Texarkana 1995, writ dism'd); El Paso & S.W.R.
Co. v. Eichel & Weikel, 130 S.W. 922, 940 (Tex. Civ. App. 1910, writ ref'd).  When a party to the
contract fails to perform his obligation, he may not thereafter enforce the remaining terms of the
contract.  Atl. Richfield Co. v. Long Trusts, 860 S.W.2d 439, 447 (Tex. App.-Texarkana 1993, writ
denied). 
13. A question on material breach is an inferential rebuttal issue and thus not proper except
when properly submitted as an instruction.  Weitzul Constr., Inc. v. Outdoor Environs, 849 S.W.2d
359, 365 (Tex. App.-Dallas 1993, writ denied). 
14. Mustang cites D.E.W., Inc. v. Depco Forms, Inc., 827 S.W.2d 379, 382 (Tex. App.-San
Antonio 1992, no writ), for the proposition that Driver is precluded from recovering on its claim for
wrongful termination due to its own breach of the preceding dependent obligation of timely
performance.  However, in that case there was a finding by the jury that Depco Forms had materially
breached the contract.
15. There is also evidence that the final completion of the pipeline was delayed several months
beyond that time, although it became capable of use at the earlier time.
