
NO. 07-05-0032-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MARCH 7, 2005

______________________________


GREGG McCAIN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A15819-0412; HONORABLE ROBERT W. KINKAID, JR., JUDGE

_______________________________

Before REAVIS AND CAMPBELL, JJ. and BOYD, S.J. (1)
MEMORANDUM OPINION
	Pending before this Court is appellant Gregg McCain's request to withdraw his
notice of appeal as premature and dismiss the appeal pending a ruling on his motion for
new trial.  As required by Rule 42.2(a) of the Texas Rules of Appellate Procedure, appellant
has personally signed the withdrawal.  Counsel for appellant has also signed the document. 
	Accordingly, the appeal is dismissed.  
						Don H. Reavis
						    Justice
 
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.


llegedly contradicted the jury's verdict.  The reporter's record before us is
partial in scope.  O&G merely requested the reporter to transcribe that portion of the trial
concerning "the [trial] court's receipt of the jury verdict, and the polling of the jury, if any." 
That and the clerk's record, posits O&G, illustrate that the trial court 1) failed to setoff
against the jury award to Hipkins a sum of $560,000, and 2) improperly found O & G
Management and McClelland Creek jointly and severally liable to Hipkins though the issue
of their liability was omitted from the jury charge.  We overrule each issue and affirm the
judgment.
 Setoff
	We address the matter of the alleged setoff first.  According to O&G, it was entitled
to same because the jury found, via its answer to issue 22 of the charge, that Kathleen
Hipkins had "made" distributions "to or on behalf of . . . Hipkins, Cathy Burrell, and their
heirs" of $560,000. (3)  So, that amount should have been offset against not only the $60,000
in damages the jury determined Hipkins had suffered but also the 33% interest in O & G
Management, Ltd. it gave him, the argument goes.  We disagree for several reasons.
	First, assuming that the $60,000 award to Hipkins was subject to setoff, we are left
to wonder what amount to offset against it.  As revealed by the wording of issue 22, the jury
was asked to determine the amount of distributions made to three or more people, i.e.
Hipkins, Cathy Burrell and their heirs, not simply to Hipkins.  Furthermore, in concluding
that $560,000 had been distributed, the factfinder did not designate who received what
portion of that sum.  Nor was it asked to.  So, we have no idea what portion, if any, was
paid to Hipkins.  Arguably none, some, most, or all could have been allotted to Cathy and
the heirs while, none, some, most, or all could have been delivered to Hipkins.  Simply put,
we do not know, and the partial record before us does not address the topic.  And, this is
fatal to O&G since it had the burden to provide us with a record sufficient to establish its
claim of reversible error.  Dominguez v. Gilbert, 48 S.W.3d 789, 794 (Tex. App.-Austin
2001, no pet.) (holding that the appellant has the burden to provide the appellate court with
a record sufficient to establish reversible error).
	Second, setoff connotes competing liabilities.  That is, each party must have an
existing debt or claim against the other which may be setoff.  See Sommers v. Concepcion,
20 S.W.3d 27, 35 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (stating that the right
of setoff allows entities "that owe each other money to apply their debts to each other"). 
Logic therefore dictates that if a party has no claim or debt against the other, then he has
nothing to offset.  And, that appears to be the circumstance here, in view of the wording
of jury question 22.  Again, the trial court asked the jury to determine the amount of
distributions that had been "made" by Kathleen.  The jury was not asked to decide what
amount of money was due Kathleen or any other defendant from Hipkins.  Nor did it find
that Hipkins owed the $560,000 to anyone.  Similarly absent is any contention on appeal
that O&G had some debt or claim due from Hipkins.  In view of this, we see no opposing
debts with which to offset against each other.  
 

	No Liability Finding
	Next, O&G contends that the trial court could not have held O & G Management and
McClelland Creek jointly and severally liable to Hipkins since no liability issue submitted
to the jury included a reference to either entity.  We overrule the issue.
	A trial court need not submit to a jury non-disputed factual matter.  Star Enterprise
v. Marze, 61 S.W.3d 449, 459 (Tex. App.-San Antonio 2001, pet. denied).  Here, O&G
does not assert in its brief that the liability of O & G Management and McClelland Creek
was subject to factual dispute.  Moreover, the partial reporter's record requested by O&G
and provided us does not address this matter one way or the other. (4)  So, without illustrating
that the topic was subject to factual dispute, we cannot say that the trial court was
obligated to first submit a liability issue addressing the responsibility of either entity before
holding each entity liable in its judgment.  In short, O&G failed to carry its burden of
establishing that the trial court committed reversible error.
	Accordingly, we affirm the judgment.

							Brian Quinn	
						           Chief Justice
 


1. Ex-Chief Justice Philip Johnson originally sat on the panel that heard oral argument on this case. 
However, he did not participate in this opinion.
2. The recovery consisted of $60,000 in damages and a 33% interest in O & G Management, Ltd.
3. The question read:  "Find from a preponderance of the evidence the amount of distributions derived
from their ownership interest in O & G Companies, if any, made by Kathleen Hipkins, to or on behalf of Dan
Hipkins, Cathy Burrell, and their heirs."  The jury replied:  "$560,000."  Furthermore, the "O & G Companies"
consisted of "O & G Management, Ltd. and McClelland Creek Properties, Inc."  
4. According to Texas Rule of Appellate Procedure 34.6(c), we "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).  Since O&G secured only an abbreviated reporter's record, per
appellate rule 34.6(c), we must presume that the portion supplied was all that addressed the question of
whether issues of fact existed regarding the liability of O & G Management as well as McClelland Creek.   

