In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-18-00330-CV

___________________________

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

REMBERT ENTERPRISES, INC., Appellant

V.

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

 

1The 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 
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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