                      In the
                 Court of Appeals
         Second Appellate District of Texas
                  at Fort Worth
                ___________________________
                     No. 02-18-00330-CV
                ___________________________

          REMBERT ENTERPRISES, INC., Appellant

                               V.

1309, LLC, CHARLIE CUMMINGS, AND JO CUMMINGS, Appellees



            On Appeal from the 367th District Court
                    Denton County, Texas
                Trial Court No. 16-10107-367


          Before Sudderth, C.J.; Birdwell and Bassel, JJ.
         Memorandum Opinion by Chief Justice Sudderth
                           MEMORANDUM OPINION

      Appellant 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.

      In its 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.

      A jury 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-
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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.”).1       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 of appeals).

      To 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


      1
        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 ensure that the question is appropriate under the facts of the
particular case’” (quoting Comm. on Pattern Jury Charges, State Bar of Tex., Texas
Pattern Jury Charges: Business, Consumer, Insurance, & Employment PJC 101.2 cmt. (2016)).

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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)).

       We do 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.]

       Rule of 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
                                                4
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).

       Because 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).


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                               /s/ Bonnie Sudderth
                               Bonnie Sudderth
                               Chief Justice

Delivered: July 25, 2019




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