                                   NO. 07-11-0132-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                 SEPTEMBER 29, 2011

                          ______________________________


                            JESUS CAVAZOS, APPELLANT

                                            V.

          PAY AND SAVE, INC. D/B/A LOWE'S MARKETPLACE, APPELLEE


                        _________________________________

             FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

    NO. 2010-550,659; HONORABLE WILLIAM C. SOWDER, JUDGE PRESIDING

                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                 DISSENTING OPINION


       I respectfully dissent. While I do agree that the partial reporter's record obligates

us to presume that the record supports the trial court's judgment, Richards v. Schion,

969 S.W.2d 131, 133 (Tex.App.--Houston [1st Dist.] 1998, no pet.) (holding that "[w]hen

an appellant appeals with a partial reporter's record but does not provide the list of

points as required by rule 34.6(c)(1), it creates the presumption that the omitted portions

support the trial court's findings"), I would not interpret the Texas Supreme Court's

decision in Haygood v. De Escabedo, No. 09-0377, 2011 Tex. LEXIS 514 (Tex. July 1,
2011), as obligating us to presume that a plaintiff must first prove to a jury the amount of

medical or health care expenses actually paid or incurred in order to arrive at a verdict.

Under the facts of this case, we must conclude that the trial court, after applying §

41.015 of the Civil Practice and Remedies Code,1 found that the evidence supported a

recovery of damages totaling $3,647.75. In a comparative negligence case, because a

court is required to reduce the amount of recoverable damages by a percentage equal

to the claimant's percentage of responsibility, and because the jury found Cavazos to be

49% responsible for his own damages, the trial court should have entered a judgment

awarding Cavazos damages of $1,860.35. Tex. Civ. Prac. & Rem. Code Ann. § 33.012

(West 2008).     Furthermore, a recalculation of damages requires that the trial court

recalculate prejudgment interest.


                                        Conclusion


       Accordingly, I would reverse the judgment of the trial court and remand for

further proceedings consistent with this opinion.




                                                    Patrick A. Pirtle
                                                         Justice




1
 Tex. Civ. Prac. & Rem. Code Ann. § 41.015 (West 2008). The Final Judgment entered in this case
specifically recites that the trial court applied § 41.015.
                                              2
