                    NUMBER 13-19-00042-CV

                   COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI – EDINBURG

KAYLA MARADIAGA, INDIVIDUALLY
AND AS REPRESENTATIVE OF
BORDER FINANCIAL SERVICES,
INC., D/B/A A-MEX, A-MEX II,
A-MEX III, AND CASH EXPRESS,                           Appellants,

                               v.

STEVE B. BECKER AND
EXEL BOBBINS & PLASTICS
COMPONENTS, INC.,                                       Appellees.


             On appeal from the 357th District Court
                  of Cameron County, Texas.



                MEMORANDUM OPINION
 Before Chief Justice Contreras and Justices Longoria and Perkes
            Memorandum Opinion by Justice Longoria
        Appellants Kayla 1 Maradiaga, individually and as representative of Border

Financial Services, Inc., D/B/A A-Mex, A-Mex II, A-Mex III, and Cash Express appeals

from a jury verdict finding appellants negligent and awarding damages to appellee Exel

Bobbins & Plastics, Inc. (Exel). In four issues, appellants argue that the trial court erred

by: (1) “disallowing the submission of settling defendants and designated responsible

third parties to the jury;” (2) “keeping [Maradiaga, individually] and Border Financial

Services, Inc. in the suit” despite neither owing Exel a common law duty; (3) allowing Exel

to submit a common negligence theory of recovery to the jury; and (4) allowing suit to

proceed when Maradiaga, individually, had corporate veil protection. We affirm.

                                           I.      BACKGROUND

        Exel, and its owner Steven B. Becker, brought suit against appellants, Iris Yvonne

Morales, David Barraza, Ruben Castillo, Jose Enrique Esparaza, Jr., Ashley Nicole

Cuevas, and Robert Cuevas for conversion, fraud, conspiracy, negligence, and

exemplary damages. Prior to trial, Esparaza, Ashley, and Robert settled with Exel.

Castillo was dismissed by Exel as a party before the conclusion of evidence.

A.      Testimony of Detective Eric Garza 2

        In October 2014, Becker contacted the Brownsville Police Department regarding

fraudulent checks that had been cashed from Exel’s business account. At the time,

Becker believed Exel’s accountant, Morales, was involved. More than $250,000 had been




        1   Appellant’s name is also sometimes written as “Keyla” in the briefing and the record.
        2 Detective Garza’s testimony is the only testimony included in the reporter’s record of the trial as
provided to this Court. At the end of Detective Garza’s testimony, the reporter’s record states: “(End of the
requested portion.).”

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fraudulently withdrawn from Exel’s account. Detective Eric Garza with the Brownsville

Police Department investigated the claims.

      Initially, Detective Garza discovered that Morales had written checks mainly to

herself, her husband, Barraza, and Castillo. Castillo was a police officer with the

Brownsville Police Department. Detective Garza stated that Castillo told him that Castillo

was under the impression that Morales was giving him the checks with the permission of

her boss, whose business was flourishing. After talking with Castillo, Detective Garza

began to investigate the additional parties involved. In addition to Morales, Barraza, and

Castillo, fraudulent checks were written out to approximately thirteen other people,

amounting to over 500 fraudulent checks.

      Detective Garza’s investigation revealed that a majority of the fraudulent checks,

totaling approximately $205,000, were cashed at A-Mex, a check cashing business

operated by Maradiaga. He testified that he went to A-Mex to discuss the check cashing

procedure in place, where he learned that A-Mex would verify the checks with the issuing

company and, as long as they were verified, they would be cashed. In this case, Morales

would verify the checks on behalf of Exel. A-Mex did not require the individual to whom

the check was for to be the one to cash the check, but rather allowed Morales and Barraza

to cash checks on another’s behalf, without the intended recipient’s knowledge that the

checks had been written out to them. According to Detective Garza’s testimony, there

were two individuals who had no knowledge of or connection to Morales, Barraza, or Exel,

yet their names were used on multiple checks. Detective Garza ascertained that both

individuals had previously cashed legitimate checks at A-Mex in years prior.




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      Detective Garza interviewed Maradiaga, who said that that she believed Barraza

was the owner of a construction company, and that he was allowed to cash the checks

because they were made out to his employees. Because the bank never returned the

checks to A-Mex or refused payment, Maradiaga did not see any problem continuing to

cash the checks.

B.    Verdict

      The jury found that Maradiaga 3, individually and Border Financial Services, Inc.

proximately caused the resulting loss to Exel. The jury also found that Exel proximately

caused its own loss. The jury assigned 30% responsibility to Maradiaga; 30%

responsibility to Border Financial Services, Inc.; and 40% responsibility to Exel. They did

not find that Maradiaga or Border Financial Services, Inc. engaged in a conspiracy to

harm Exel. However, they found that Maradiaga and Border Financial Services, Inc. were

grossly negligent and awarded exemplary damages to Exel.

      Appellants filed three motions for judgment non obstante veredicto (JNOV), which

were denied. This appeal followed.

                                    II.     SUFFICIENT RECORD

      Appellants raise issues of jury charge error and insufficient evidence concerning

Maradiaga’s personal liability. Exel responds that appellants have failed to provide a

complete record, and therefore, we must presume that the judgment was supported by

sufficient evidence. We agree with Exel.

      The appellant bears the burden to bring forward on appeal a sufficient record to

show the error committed by the trial court. Huston v. United Parcel Serv., Inc., 434



      3   The completed jury verdict form spells Maradiaga’s name as “Madariaga.”

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S.W.3d 630, 636 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citing Nicholson v.

Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.));

see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) (“The

burden is on the appellant to see that a sufficient record is presented to show error

requiring reversal.”). In the absence of a record containing the relevant evidence

considered by the trial court in making its ruling, “[w]e indulge every presumption in favor

of the trial court’s findings.” See Bryant v. United Shortline Inc. Assurance Servs., N.A.,

972 S.W.2d 26, 31 (Tex. 1998); Willms v. Am. Tire Co., 190 S.W.3d 796, 803 (Tex. App.—

Dallas 2006, pet. denied) (“[W]hen an appellant fails to bring a reporter’s record, an

appellate court must presume the evidence presented was sufficient to support the trial

court’s order.”); see also Huston, 434 S.W.3d at 636 (holding that appellant’s failure to

obtain reporter’s record containing ruling challenged on appeal made it impossible for

appellate court to determine that trial court abused its discretion in making ruling).

        Although the record contains what appears to be a partial record of the jury charge

conference, 4 appellants have failed to provide the complete record of the charge

conference.       Furthermore, the record from the trial only contains the testimony of

Detective Garza. Appellants did not provide this Court with the full trial record. The only

additional records provided are a partial transcript of a hearing regarding the settling

defendants, and a transcript of the hearing on appellants’ motions for JNOV.

A.      Jury Charge




        4  Volume III of the reporter’s record is titled “Charging Conference,” however, it appears to begin in
the middle of the conference as the record states “(Beginning of the requested portion)” and begins with
the trial court asking ”Anything else?”

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       Appellants argue in issues one and three that the jury charge was erroneous. In

reviewing a jury charge, we consider the pleadings of the parties, the evidence presented

at trial, and the charge in its entirety. De Leon v. Furr’s Supermarkets, Inc., 31 S.W.3d

297, 300 (Tex. App.—El Paso 2000, no pet.). “We may not reverse unless the error, when

viewed in light of the totality of the circumstances, amounted to such a denial of the rights

of the complaining party as was reasonably calculated and probably did cause rendition

of an improper judgment.” Id.; see TEX. R. APP. P. 44.1(a).

          Because appellants did not provide a complete trial record, we have no way of

ascertaining what evidence the trial court considered when determining the jury charge.

Accordingly, we must presume that the evidence supported the trial court’s ruling, and we

cannot say, based on this appellate record, that the trial court abused its discretion. See

Bryant, 972 S.W.2d at 31; Willms, 190 S.W.3d at 806; see also Huston, 434 S.W.3d at

636 (holding, due to inadequate record, that appellant failed to preserve complaint);

Brazle v. Meadows on the Mews Owners Ass’n, No. 14-10-01016-CV, 2011 WL 6141587,

at *1 (Tex. App.—Houston [14th Dist.] Dec. 8, 2011, no pet.) (mem. op.) (per curiam)

(“Unless an appellant arranges for the filing of a complete reporter’s record (or partial

reporter’s record and accompanying statement of issues), we must presume that the

proceedings support the trial court’s judgment.”). We overrule appellants’ first and third

issues.

B.     Sufficiency of the Evidence

       Appellants group issues two and four as a challenge to the sufficiency of the

evidence, arguing that (1) there was insufficient evidence to prove that Maradiaga or

Border Financial Services, Inc. owed any duty to Exel; and (2) there was insufficient



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evidence to pierce the corporate veil protecting Maradiaga from liability individually.

Again, because the entire record is not available for our review, we cannot rule on the

sufficiency of the evidence. See Andrews v. Sullivan, 76 S.W.3d 702, 707 (Tex. App.—

Corpus Christi–Edinburg 2002, no pet.). Accordingly, we overrule appellants’ second and

fourth issues.

                                    III.   CONCLUSION

       The judgment of the trial court is affirmed.



                                                            NORA L. LONGORIA
                                                            Justice
Delivered and filed the
6th day of February, 2020.




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