NO. 07-04-0554-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL C DECEMBER 12, 2005

______________________________ JOHN SCO TT and H AZEL SC OTT, Appella nts
v. HOLLY SI MPSON an d LENIS SIMPSON, Appellees

_________________________________ FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

NO. 90,963-1; HON. W. F. ROBERTS, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS and HANCOCK, JJ. John and Hazel Scott (the Scotts), acting pro se , appeal from a judgment awarding Hollyand Lenis Simpson (the Simpso ns) $10,67 4.67 plus attorney’s fees of $3,500.00. Th e judgment was ente red upon trial at which th e Scotts f ailed to appear. They see k
r eversal b ecause they 1) received no notice of the trial date, a nd 2) did not breach their contractwith the Simpsons or commit fraud or deceptive trade practices . We a ffirm the judgment of the tria l court.2

Regarding the conte ntion tha t they di d not r eceive n oti ce of the trial setting, no evidence of

record i llustrate s as much

. And, though the allegation was made i n the motion for new trial filed by the Scotts, the m otion was neither verified nor accompanied by a supporting affidavit. Nor do the allegations contained in the Scotts’ appellate brief fill the void; factual statements and documents appearing only in t he appellate brief are not evidence upon whic h this co urt may ac t. See Castano v. San Felipe Ag ricultura l, Mfg. & Irr. Co., 147 S.W.3 d 444, 45 2-53 (Tex

. App .–San Antonio 2004, no pet.) (stating that an appella te court may

not cons ider evi dence in cluded i n or attac hed to br iefs that is not p art of the offic ial reco rd devel oped at t rial); Custom- Crete , Inc. v. K-B ar Services, Inc., 82 S.W.3d 655, 659 (Tex. App.–San Antonio 2002, no pet.) (stating that one contending he received no notice of the trial da te must pro duce evi dence, no t simply allegati on, to sup port the contenti on). In deed, we a re limited to reviewing only that competent evidence presented to and admitted by the trial court. See Castano v. San Felipe Agricultural, Mfg. & Irr. Co., 147 S.W.3d at 452-53. Thus, the allegation that the Scotts received no notice of the trial date is unsubstantiated and overruled. Regarding the other issues raised by the Scotts, they appear as l ittle more than effort to attack the sufficiency of the evidence underlying the trial court’s finding of liability, which the Scotts do simply by asserting factual allegations in and attachin g documen ts to their appella te brief. Again, such arenot competent evidence upon which we can act since theyare not p art of theappella te record. Id. Nor do we have a reporter’s record of thetrial1 The Scott s do asser t i n thei r br ief

that they w ere tol d by t he repor ter that no record of t he tr ial was made. Yet, they do not c ontend t hat t he tr ial court heard no evidenc e at the proceeding . Nor does the reco rd establi sh that t he tri al court heard no evi de nce
. See T EX
. R. C IV
. P. 243 (sta ting that if the dam ages are unli quidat ed, then the t rial court “ shall hear evidence as to damages . . . unle ss th e d efe nd an t sha ll demand and be e ntitled to a trial by ju ry . . .”). 3 or documentation within the appellate record illu strating thatthe Scot ts reques ted it. 1 This is fatal since the Scotts ha d the bur den to pr ovide us with a re cord suffi cient to support their contentions and establish the need for reversal. Pentes D esign, In c. v. Perez, 840 S.W.2d 75, 79 (Tex. App. –Corpus Christi 1992, writ denied). Without the reporter’s record, we can onlypresu me that the t rial court had sufficient evidence before it to support its d ecision. Vickery v. Commission

for Lawy er Disci pline, 5 S.W.3d 241, 251 (Tex. App.–Houston [14 th Dist.] 1999, pe t. denied) (holdin g that wh en there is neith er a repo rter’s record nor findings of fact, the appellate court will assume the trial court heard sufficient evidence to make al l the necessary findings to support the judgment). Thus, we overrule these issues aswell. The judgment of the trial court is affirmed.

Per Curi am