author: BOB McCOY, Justice.

text:
    Lloyd Nash PRIMES, Appellant, v. The STATE of Texas, State.
    No. 2-04-177-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 23, 2004.

      David Richards, Fort Worth, For Appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty., Chief of the Appellate Section, Sharon A. Johnson, Michele Hartman, Asst. Crim., Dist., At-tys., Fort Worth, for Appellee.
    PANEL B: LIVINGSTON, GARDNER, and McCOY, JJ.

   MEMORANDUM OPINION

BOB McCOY, Justice.

I.Introduction

A jury found appellant, Lloyd Nash Primes, guilty of aggravated assault and sentenced him to twenty years’ imprisonment. In one point on appeal, Primes complains that the trial court erred when it denied his motion for mistrial after the prosecutor “compared” him with Ted Bun-dy during the State’s closing argument at punishment. We will affirm.

II.Background Facts and Procedural History

During the punishment phase of the trial, a prosecutor for the State made the following jury argument:

You have to send a clear signal to people like this because they think you’re not going to do anything to him. They think because the sympathy, you know, by bringing his mother in here and his grandmother in here that you’re going to say, you know what, he got to get back home. Who put himself in this situation. Who time and time again has had — -she’s had to be brought in here in a wheelchair. Who has caused that. It’s a cause and effect. Every time he does something, they’re going to come to his rescue. Every time. And it’s a sad commentary but that’s a mama’s boy. You know, Ted Bundy’s mother loved him too. [Emphasis added.]

Primes objected to the argument as “outside the scope of the evidence” and “inflammatory.” The trial court sustained Primes’s objection and instructed the jury to disregard the prosecutor’s comment but denied his motion for mistrial.

III.Jury Argument

In his sole point on appeal, Primes contends that the trial court erred when it denied his motion for mistrial.

To be permissible, the State’s jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App.1992), cert. denied, 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973).

When the trial court sustains an objection and instructs the jury to disregard but denies a defendant’s motion for a mistrial, the issue is whether the trial court abused its discretion in denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004). Only in extreme circumstances, where the prejudice caused by the improper argument is incurable, 1.e., “so prejudicial that expenditure of further time and expense would be wasteful and futile,” will a mistrial be required. Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003), cert. denied, — U.S. -, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004). An instruction to the jury to disregard an improper jury argument is generally sufficient to cure error. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App.1996).

In determining whether the trial court abused its discretion in denying the mistrial, we consider: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct. Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

Assuming, without deciding, that the prosecutor’s argument was improper, we conclude that the trial court did not abuse its discretion when it denied Primes’s motion for mistrial. Contrary to Primes’s contention, the prosecutor’s argument did not “compare” Primes with Ted Bundy. See Guerrero-Lara v. State, No. 13-01-00099-CR, 2002 WL 1765543, at *4 (Tex.App.-Corpus Christi Aug. 1, 2002, no pet.) (not designated for publication) (reading prosecutor’s statement not as a comparison of appellant with Adolph Hitler and Charles Manson but as a statement “that all persons have good and bad days”); Alford v. State, Nos. 05-98-00262-CR, 05-98-00263-CR, 2000 WL 175115, at *6-7 (Tex.App.-Dallas Feb. 16, 2000, no pet.) (not designated for publication) (stating that prosecutor used Ted Bundy “as an example to demonstrate that even people who commit repeated egregious acts may be hard working,” not to compare appellant with Bundy). Here, the prosecutor’s comment that “Ted Bundy’s mother loved him, too” merely pointed out to the jury that it is normal for a mother to love her child, even when they commit bad acts, and was intended by the prosecution to counter any sympathy for Primes invoked by the testimony of Primes’s mother, grandmother, and sister during the punishment phase of the trial. Further, the trial court, in response to a request by Primes’s defense counsel, promptly instructed the jury to disregard the prosecutor’s comment. Finally, as to the certainty of the punishment, the record supports the punishment assessed by the jury, absent the misconduct. There was evidence presented at trial that Primes twice struck the victim with a pipe and that both blows were aimed at the victim’s face. The first blow fractured the victim’s left arm while the second blow struck her in the face requiring stitches to close the laceration. At the time of trial, the victim testified that she was still experiencing pain and that she needed surgery on her arm. There was also evidence before the jury that Primes, on three prior occasions, had been convicted of assault and had once been convicted of burglary.

We conclude, under the circumstances of this case, that the trial court’s instruction to disregard was effective and cured the prejudice, if any, caused by the prosecutor’s improper comment. Accordingly, we hold that the trial court did not abuse its discretion when it denied Primes’s motion for mistrial. See Hawkins, 135 S.W.3d at 77; Mosley, 983 S.W.2d at 259.

IV. Conclusion

We overrule Primes’s point and affirm the trial court’s judgment.

      . See Tex.R.App. P. 47.4.

      . We note that the punishment assessed by the jury was at the lower end of the punishment range. Primes was convicted of aggravated assault, which was punishable by not less than two, or more than twenty years. See Tex. Penal Code Ann. § 12.33 (Vernon 2003), § 22.02 (Vernon Supp.2004-05). However, because the indictment contained an enhancement count, to which Primes pleaded "true," Primes could have been sentenced to anywhere between five and ninety-nine years to life. See Tex. Penal Code Ann. § 12.32 (Vernon 2003), § 12.42(b) (Vernon Supp. 2004-05).


source: Caselaw Access Project

author: WANDA McKEE FOWLER, Justice.

license: Public Domain

text:
    Nancy S. MASON, Appellant, v. OUR LADY STAR OF the SEA CATHOLIC CHURCH, Diocese of Galveston-Houston (Roman Catholic Church), and Greater Mt. Moriah Baptist Church, Appellees.
    No. 14-04-00016-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 6, 2005.

      Barry S. Berger, Newton B. Schwartz, Vincent Ka-lin Lo, Houston, for appellant.
    Brett J. Sileo, Britton B. Hams, John B. Wallace, Wade R. Quinn, Houston, for appellees.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION

WANDA McKEE FOWLER, Justice.

Nancy S. Mason appeals from a jury verdict in favor of appellees, Our Lady Star of the Sea Catholic Church and the Diocese of Galveston-Houston (Roman Catholic Church) (collectively, “Catholic Church”), and the Greater Mt. Moriah Baptist Church (“Baptist Church”). In four issues, Mason complains of charge error and the trial court’s denial of her motion for new trial. Because Mason failed to bring forward a complete reporter’s record and did not comply with the requirements of Texas Rule of Appellate Procedure 36.4(c), we affirm.

Factual and Procedural Background

Mason owns property adjacent to property owned by the Catholic Church and the Baptist Church. When Tropical Storm Allison inundated Houston with rain in June 2001, Mason’s property flooded. She brought suit against the churches, alleging that improvements to their property caused her property to flood.

At the end of a week-long trial, the court submitted the charge to the jury. Question One asked whether Tropical Storm Allison was an event of unprecedented rainfall that constituted an act of God, to which the jury answered, “No.” Question Two asked whether the Catholic Church or the Baptist Church diverted or impounded the natural flow of surface waters in a manner that was a cause in fact of the damage to Mason’s property by the overflow of the water diverted or impounded, to which the jury also answered, “No.” The remaining jury charge questions, including questions on trespass, nuisance and damages, were predicated upon affirmative answers to Question Two, and therefore the jury did not answer them. On October 14, 2003, the trial court entered a take-nothing judgment in favor of the churches.

Mason filed a motion for new trial based on objections to the jury charge and to closing argument. The trial court denied the motion for new trial. This appeal followed.

Mason’s Noncompliance with Texas Rule of Appellate Procedure 36.4(c)

On January 6, 2004, Mason filed her notice of appeal. Two weeks later, she filed her designation of the clerk’s record. In it, she requested the pleadings of the parties, the charge, the judgment, and post-trial motions. In the same letter, she also requested the inclusion of excerpts of the reporter’s record containing the jury argument made by the Catholic Church and the Baptist Church, and Mason’s objections at the charge conference. Mason did not request any of the testimony or evidence received at the trial. Mason’s designation letter contained no statement or indication that she was filing a limited appeal under Texas Rule of Appellate Procedure 34.6(c), nor did it contain a statement of the issues to be presented on appeal as required by Rule 34.6(c)(1). See Tex.R.App. P. 34.6(c)(1) (“If the appellant requests a partial reporter’s record, the appellant must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues.”).

The clerk’s record was filed in this court in February 2004, and the partial reporter’s record Mason requested was filed approximately three weeks later. Mason then submitted her appellate brief in April, and the churches filed responsive briefs in May. In their briefs, both the Catholic Church and the Baptist Church argued as their main responsive point that the trial court’s judgment must be affirmed because Mason did not bring forward a complete reporter’s record and did not limit her appellate issues as provided in Rule 34.6(c).

Four months after the briefing was filed, and shortly before submission, Mason filed in this court a “Motion for Leave to Supplement Court Reporter’s Record.” In the motion, Mason acknowledged she did not include a statement of points or issues in her designation of the record as required under Rule 34.6(c)(1), but stated that she was requesting the court reporter to prepare a supplemental record containing (1) all final jury arguments (rather than just the defendants’ jury arguments previously filed), and (2) Mason’s written request for the supplemental record. The written request, dated September 23, 2004, purported to include a statement of points or issues in compliance with Rule 34.6(c)(1). Mason requested we grant leave for her to file the supplemental record she requested. In a combined response, the churches objected, arguing that Mason was not seeking to supplement the record, but really was seeking to create a new document— the September 23, 2004 letter to the court reporter — in an untimely attempt to comply with Rule 36.4(c). The churches pointed out that Mason’s request came four months after they filed their briefs, and less than a month before the case was set for oral argument. We denied Mason’s motion, but did permit the supplemental reporter’s record containing the additional jury argument to be filed. See Tex.R.App. P. 34.6(b)(3). So, the letter Mason sought to have included in the record — in her belated attempt to comply with Rule 36.4(c)(1) — is not filed as a part of the record in this case.

Generally, on an appeal with only a partial reporter’s record, the court of appeals must presume the omitted portions of the record are relevant and support the trial court’s judgment. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990). Rule of Appellate Procedure 34.6(c) provides an exception to the general presumption. Under that rule, an appellant may present an appeal on a partial reporter’s record and not be subject to the general presumption if she includes in her request for the reporter’s record a statement of the points or issues to be presented on appeal. Tex.R.App. P. 34.6(c)(1). This statement limiting the points or issues to be presented on appeal puts the other parties on notice that the appellate court will presume the designated portions of the record constitute the entire record for reviewing the stated points or issues, and it allows the other parties the opportunity to request any additional portions of the record they believe are relevant to the issues or points. Id. 34.6(c)(2), (4).

The Texas Supreme Court has held the statement of the issues on appeal need not be included in the request for the reporter’s record as long as the statement is made in time for the other parties to designate any additional relevant portions of the record and to prepare their appellate briefs. See Bennett v. Cochran, 96 S.W.3d 227, 228-30 (Tex.2002) (per curiam). However, the Bennett court warned that “litigants should not view our relaxation of rules in a particular case as endorsing noncompliance. While we seek to resolve appeals on their merits, litigants who ignore our rules do so at the risk of forfeiting appellate relief.” Id. at 230. The court observed that if the appellant had completely failed to file its notice of issues instead of filing it late and separate from the request for the reporter’s record, then “[tjhere is no question that ... Rule 34.6 would require the appellate court to affirm the trial court’s judgment.” Id. at 229.

We acknowledge the Texas Supreme Court’s instruction to take a more flexible approach when “the appellee has not established any prejudice from a slight relaxation of the rule.” Id. at 229. The facts of Bennett, however, are clearly distinguishable from those here. In Bennett, the appellant filed his statement of the issues approximately two months late, but the appellee still had more than two months after receiving notice of the statement to file his brief. Id. And, the appellee did not contend that the delay prevented him from identifying the relevant issues or supplementing the reporter’s record. Id.

In contrast, Mason did not seek leave to file her statement of the issues until almost nine months after it was due. See Tex.R.App. P. 34.6(b)(1), (c)(1). Her request came four months after the appel-lees’ briefing had been completed and shortly before the case was set for oral argument. We cannot condone such an egregious flouting of the rules of appellate procedure. Permitting Mason to file her statement of issues at this late date would effect more than the “slight relaxation of the rule” the Supreme Court described Bennett as being-it would render it meaningless. Thus, the objectives of the rule would not be served. See Bennett, 96 S.W.3d at 230.

Because we have denied Mason’s request to include her purported statement of issues in the record, her appeal will proceed without the benefit of such a statement.

Analysis of Mason’s Issues

We now turn to the substance of Mason’s issues. As an appeal with only a partial reporter’s record, we must presume the omitted portions of the record are relevant and support the trial court’s judgment. Christiansen, 782 S.W.2d at 843. Therefore, we analyze Mason’s issues against this presumption.

1. Jury Charge Issues

In three issues, Mason contends that the trial court erred in the following ways: (1) by conditioning Jury Questions Three and Four on a “Yes” response to Question Two, preventing Mason from obtaining findings on her separate trespass and nuisance theories; (2) by submitting “Act of God” as a jury issue when it is an inferential rebuttal matter; and (3) by conditioning Question Two and the remaining questions on the jury’s response to Question One, because it was an impermissible comment on the weight of the evidence. We consider these together.

To justify reversal of the trial court’s decision, Mason must establish that an error probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a)(1); Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 790 (Tex.1995). To determine whether an alleged error in the jury charge is reversible, we must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986).

In her argument, Mason contends that if Questions Three and Four were not conditioned on the jury’s responses to Questions One and Two, it is likely the jury could have decided these issues in her favor. Mason also contends that presenting Question One on “Act of God” as the primary matter to be decided before her theories of liability were addressed controlled the entire case. As a result, Mason complains, the trial court exaggerated the “Act of God” defense and minimized her evidence, and shifted the focus to the evidence relating to Tropical Storm Allison rather than her evidence of the ongoing impact of the churches’ improvements to their property.

At oral argument, Mason’s counsel also argued that Question One, the “Act of God” question, should not have been submitted; instead, the court should have submitted issues on nuisance and trespass. He pointed out that at least one opposing counsel agreed the question should not have been submitted. Counsel claims this mistake was fundamental error apparent in the record simply by looking at the pleadings and the charge; thus, according to counsel, no record is needed to confirm that reversible error occurred. In addition, counsel claimed that because the “Act of God” question was submitted, he wasted valuable time at closing argument discussing it and explaining why the jury should answer “no” to it.

Fundamental error is rarely used in Texas, and, according to a recent Texas Supreme Court case, is a “discredited doctrine.” See In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003). Historically, courts have reserved their use of the doctrine for very narrow situations. Id. Three appear to exist: (1) when the record shows on its face that the court lacked jurisdiction; (2) when certain types of error exist in juvenile delinquency cases; and (3) when a public, as opposed to private, interest is directly and adversely affected as that interest is declared in the statutes or Constitution of Texas. Id.; In re J.F.C., 96 S.W.3d 256, 291-293 (Tex.2002) (Hankinson, J., dissenting): Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982) (per curiam).

Counsel cannot rely on fundamental error in this case for two reasons. Fust, this case does not fall within any of the three situations in which Texas courts have applied the doctrine. Counsel has not alleged jurisdictional error, this is not a juvenile delinquency case, and only a private interest is at stake here — an issue of interest to the public generally is not at stake.

Second, courts apply the doctrine when a litigant fails to preserve error, not when the litigant fails to bring a record forward on appeal. The only type of fundamental error that might on occasion be raised without the benefit of a reporter’s record is a jurisdictional defect apparent on the face of the record. But this appeal does not involve a jurisdictional defect. None of the parties, including Mason, allege that the trial court was without authority to hear the ease.

Furthermore, even when a litigant alleges fundamental error, an appellate court must have a record. Without a record, an appellate court is hobbled; it cannot perform its review of the record to assess for itself if error occurred and, if so, to assess whether the error was harmless or reversible. For example, without a record, it is impossible for us to determine how much time counsel spent discussing Question One.

Thus, we decline to extend the fundamental error doctrine to this case. It clearly does not apply. We also refuse to abandon our responsibility to look to the record for error so that we can independently and objectively assess both the error and its harm.

In short, to evaluate Mason’s claims, we must review the trial record. Because Mason did not request the preparation of any part of the trial record, we are unable to address Mason’s claims that she likely would have prevailed but for the harm caused by the alleged charge errors. See Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (holding that appellant’s failure to have trial proceedings transcribed precluded appellate review of whether trial court gave jury improper instruction). Moreover, because Mason did not timely file her statement of issues, we must presume the omitted portions of the record are relevant and support the trial court’s judgment. Christiansen, 782 S.W.2d at 843; see also Coleman v. Carpentier, 132 S.W.3d 108, 110-11 (Tex.App.-Beaumont 2004, no pet.) (per curiam) (holding that in absence of reporter’s record or compliance with Rule 34.6(c), appellate court would presume evidence adduced at trial supported trial court’s judgment).

We overrule Masons first three issues concerning jury charge error.

2. Improper Jury Argument

In her fourth issue, Mason contends that the trial court erred in denying her motion for new trial when counsel for the Catholic Church, in his final argument, informed the jury of the results of their answer to Question One, which violated her motion in limine.

At the end of his closing argument, the Catholic Church’s counsel stated:

Let me go back to Question No. 1. This is the last thing I want to say in this case. This case has been going on too long. We’ve all been here all last week and the first part of this week and it’s just too long. Please, answer Question No. 1 yes and it’s all over. Thank you.

Mason objected to this argument as improper and moved for a mistrial, which the court denied.

On appeal, Mason contends this improper argument violated her motion in limine because it informed the jury of the effect of its answers, it added to the burden already imposed on her by the jury charge’s improper comment on the weight of the evidence, and it required counsel to spend additional time rebutting the improper argument. Therefore, she contends, the trial court erred in denying her motion for mistrial.

Again, however, because we do not have a complete reporter’s record, we are unable to review the evidence to determine if the verdict was based on the evidence or on the improper argument. See Wooten v. S. Pac. Transp. Co., 928 S.W.2d 76, 80 (Tex.App.-Houston [14th Dist.] 1995, no pet.) (holding that lack of complete record precluded appellate review of alleged incurable jury argument). And, because we must presume that the omitted portions of the record are relevant and would support the judgment, we overrule Mason’s fourth issue.

Conclusion

We affirm the trial court’s judgment.

      . Question Two was conditioned on a negative answer to Question One.

      . In her request for a supplemental record, Mason stated, "This request for the above parts of the Reporter’s Record in the above case are made pursuant to Rule 34.6(c)(1) T.R.A.P., as the points of error on appeal deal with the alleged erroneous charge submitted to the Court and harmful error which occurred during jury argument.” Even if this statement was timely filed, we find that it does not satisfy the requirements of Rule 34.6(c)(1) because it does not identify the portions of the charge or the jury argument Mason intended to appeal, leaving appellees to guess what additional evidence they should include in the reporter’s record. See Gardner v. Baker & Botts, L.L.P., 6 S.W.3d 295, 297 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (holding that statement of issues requires appellant to "designate with reasonable particularity the complaints to be pursued on appeal”).

      . In B.L.D., Justice Wainwright describes the limited application of the fundamental-error doctrine to "certain juvenile delinquency cases,” see 113 S.W.3d at 350-51, while Justice Hankinson, in her dissent in J.F.C., describes the applicability of the fundamental-error doctrine more broadly, to cases involving "the state’s interest in the rights and welfare of minors.” See 96 S.W.3d at 292 (Hankinson, J., dissenting).


author: JOHN S. ANDERSON, Justice.

text:
    BANNER LIFE INSURANCE COMPANY, Appellant, v. Jesse M. PACHECO, Appellee.
    No. 14-04-00203-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 11, 2005.

      Harold B. Gold, Garland, J., for appellant.
    Daniel W. Burrows, Houston, for appel-lee.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

JOHN S. ANDERSON, Justice.

Appellant, Banner Life Insurance Company, filed suit against its agent, appellee Jesse Pacheco, alleging claims for breach of contract, breach of fiduciary duty, and negligence related to the agent’s sale of a life insurance policy. After a jury trial, the trial court entered a take-nothing judgment in favor of the agent. Appellant raises two issues on appeal, challenging (1) the legal and factual sufficiency of the evidence to support the jury’s findings on breach of contract, breach of fiduciary duty, and negligence, and (2) the trial court’s rulings on appellant’s motions for judgment notwithstanding the verdict and motion for new trial. We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1999, appellee Jesse Pacheco, an insurance agent for appellant Banner Life Insurance Company, approached Linda Cherry concerning the purchase of a life insurance policy. Linda’s husband, Thomas E. Cherry (“Cherry”), filled out an application for life insurance on his life. Cherry submitted the application to Banner, through its agent Pacheco, on November 12, 1999. The policy was in the amount of $500,000.

Cherry was required to have a medical exam as part of the application for life insurance. At the time, Cherry was fifty-five years old and an avid runner. He was examined by a medical examiner on November 24, 1999. Banner subsequently approved Cherry’s application, and, on December 21, 1999, Pacheco delivered the policy to Cherry’s wife.

On January 7, 2000, Cherry saw a doctor for treatment of what he thought was a boil located on his scalp behind his ear. During the exam, Cherry told the doctor that the “boil” had been on his head for the past one-and-a-half months, and that although he had attempted to treat it at home with over-the-counter medications, it had not gone away. Cherry was referred to another doctor who surgically removed the growth at the end of January 2000. Tests performed on the growth revealed it was cancerous. Cherry learned that the cancer was in stage four and had spread from his kidneys to his lungs to his head. Cherry passed away in December 2000.

Upon Cherry’s death, his wife made a claim for benefits under the Banner life insurance policy. Because Cherry’s death was within the two-year period of contesta-bility, Banner investigated the cause and circumstances of his death. In its investigation, Banner discovered Pacheco had delivered the policy to Mrs. Cherry without inquiring with respect to the health of Cherry at the time of delivery. Banner determined that it did not have enough evidence to deny the claim, without a risk of litigation and exposure to extra-contractual damages, so Banner paid Mrs. Cherry $509,206 pursuant to the policy, including interest.

Banner filed suit against Pacheco seeking to recover from Pacheco individually the $509,206 amount that Banner paid to Mrs. Cherry under the policy. Banner sued Pacheco for breach of contract, breach of fiduciary duty, negligent misrepresentation, and negligence. Banner’s claims stem from alleged violations of (1) the terms of the agent/broker agreement between Banner and Pacheco, and (2) the terms of Cherry’s application for insurance which Pacheco also signed. Banner claims Pacheco violated the terms of the agent/broker agreement and the insurance application by (1) not hand-delivering the life insurance policy to Cherry personally, and (2) not inquiring of Cherry at the time of delivery whether there were any changes in his health.

The case was tried to a jury, and the jury returned a verdict in favor of Pacheco. The trial court entered a take-nothing judgment in favor of Pacheco.

DISCUSSION

Appellant raises two issues on appeal: (1) whether the evidence supports the jury’s answers to the breach of contract, breach of fiduciary duty, and negligence questions; and (2) whether the trial court should have granted judgment notwithstanding the verdict or granted appellant’s motion for new trial, instead of entering judgment on the verdict. Because both of these issues are nearly identical in challenging the legal and factual sufficiency of the evidence to support the jury’s verdict, we will address them together.

I. Legal and Factual Sufficiency Standards of Review

When a party challenges the legal sufficiency of the evidence supporting an adverse finding to a question on which it has the burden of proof, the party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam). In making this determination, we examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. If there is no evidence to support the finding, we will then examine the entire record to determine if the contrary position is established as a matter of law. We will sustain the challenge only if the contrary proposition is conclusively established. Id.

When a party challenges the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, the party “must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.” Francis, 46 S.W.3d at 242. In conducting a factual sufficiency review, we consider and weigh all of the evidence in the record, both supporting and contrary to the judgment, and can set aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

II. The Evidence

During trial, the jury heard testimony from several witnesses: (1) Pacheco; (2) William G. Fuchs, the Banner claims analyst who investigated Mrs. Cherry’s claim for policy benefits; (3) Peter Marules, Banner’s insurance expert; (4) Gary Beck, Pacheco’s insurance expert; and (5) Mrs. Cherry. The following is a brief summary of the testimony of each of these witnesses.

Pacheco testified he had been an insurance agent for Banner since April of 1999. He approached Mrs. Cherry about purchasing life insurance. He stated Mr. Cherry bought the insurance to provide for the education of his three daughters and for debts in case something should happen to him. As part of the application for life insurance, Cherry underwent a medical exam that was conducted by a medical examiner, and the medical exam was conducted without Pacheco’s involvement. The results of the medical exam were sent directly to Banner, who, after reviewing the application and exam, approved Cherry’s application. On December 21, 1999, Pacheco delivered the life insurance policy to Mrs. Cherry.

Pacheco testified as to his understanding of the provisions in his agent/broker agreement with Banner and Cherry’s insurance application addressing the delivery of policies and changes in health of the insured between the time of application and delivery of the policy. He testified concerning paragraph ten of the agent/broker agreement that addresses the delivery of policies as follows:

10. DELIVERY OF POLICIES
No policy shall be delivered unless at the time of delivery the applicant is in the state of health and insurability represented in Parts I and II of the application and any supplements thereto, the first premium has been fully paid, and delivery has been made within sixty (60) days from the issue date of that policy. The Agent/Broker shall return to the Company, on the day following the expiration of the sixty (60) days, any policy not so delivered, unless a specific extension of the delivery period has been authorized. If the applicant is not in the state of health and insurability represented in the application when delivery is attempted, the policy shall not be delivered, but shall immediately be returned to the Company with a full written explanation.

The agenVbroker agreement was admitted into evidence during trial. According to Pacheco, paragraph ten of the agent/broker agreement did not require personal delivery of the policy to the insured or that questions be asked in person concerning the insureds health. Pacheco stated that he would not have been able to see the “boil” if he had seen Cherry in person, and that if he had asked Cherry at the time of delivery whether there was any change in health, he thinks Cherry would have said no, but that this was speculation. Pacheco further testified that if upon delivery of the policy there was a change in health, the company would not have wanted him to deliver the policy.

Pacheco was questioned concerning various provisions in Cherry’s life insurance application, which Cherry and Pacheco both signed, and the representations Pacheco made in the application concerning Cherry’s health. Cherry’s life insurance application was also admitted into evidence. Pacheco testified he did not learn that Cherry had cancer until February of 2000. In 2001, Banner terminated its agent/broker agreement with Pacheco, giving the reason that Pacheco did not comply with paragraph ten of the agent/broker agreement.

Next, William G. Fuchs, the Banner claims analyst who investigated Mrs. Cherry’s claim for benefits under the life insurance policy, testified regarding his investigation of Mrs. Cherry’s claim. During his investigation, Fuchs spoke with Pacheco, and he learned Pacheco delivered the policy to Cherry’s wife on December 21, 1999 and did not inquire about Cherry’s health at the time of delivery. Fuchs testified concerning his review of Cherry’s medical records which revealed Cherry first noticed the “boil” behind his right ear one-and-a-half months prior to his January 7, 2000 doctor appointment and had been treating the “boil” with over-the-counter medications. Fuchs acknowledged Cherry was not diagnosed with cancer until January 25, 2000.

According to Fuchs, if Pacheco had asked Cherry whether there had been any change in his health and Cherry said “no,” Banner would have had a basis to rescind the life insurance policy. Fuchs testified that if Banner had been told of the growth behind Cherry’s ear, Banner would not have issued the policy until a diagnosis had been made. Banner’s position was that the “boil” was a change in health and that this change in health should have been reported. He explained the company wants to know any time there is a change in health so that a proper review can be made of the condition.

Fuchs acknowledged Banner drafted the agent/broker agreement and the application for insurance. He also testified that Cherry, as the applicant, had an independent duty under the insurance application to notify Banner of any changes in health.

The next witness to testify was Banner’s insurance expert, Peter Marules. Marules testified that based upon his review of the agent/broker agreement, insurance application, and other documents in the case, Pacheco did not adhere to the delivery requirements in his agreement with Banner, and he was negligent. Marules testified Pacheco had a duty to inquire of Cherry’s health prior to delivery of the policy and Pacheco did not comply with that obligation. Upon being questioned whether the agent/broker agreement requires that delivery be in person or that Cherry be asked about his health in person, he said there are no such requirements. In his opinion, there are two separate obligations in the agent/broker agreement and the insurance application — one on the prospective insured to tell and one on the insurance agent to ask. According to Marules, Cherry was obligated to advise Banner of any change in his health between the time of application and delivery of the policy, and if he did not so advise, that would be grounds for Banner to void the policy.

Marules testified he did not see evidence in the records that anyone thought the “boil” might be cancerous prior to the actual surgery at the end of January 2000. He confirmed that the records from Cherry’s November 24, 1999 medical exam did not contain any notation concerning a “boil.” Marules’ opinion was that a “boil” is a change in health and should be reported by the insured.

After Marules’ testimony, the jury heard from Pacheco’s insurance expert, Gary Beck, who disagreed with Marules’ conclusions. He saw nothing in the application requiring delivery of the policy in person or requiring the agent to ask in person if there had been a change in health. Beck testified paragraph ten of the agent/broker agreement does not specify personal delivery by the agent and only says “delivery.” He also stated paragraph ten does not require an agent to ask the insured in person if there has been a change in health since the time of application.

Beck testified that some life insurance companies require a delivery receipt and that Banner could have specified that in its agent/broker agreement with Pacheco. Beck explained that an insurance company wants to know if there is a change in health because of the delay that often occurs in underwriting a life insurance policy. In his opinion, however, the insurance company only wants to know of material changes to the insured’s health — something life-threatening or that is going to cause life expectancy to be shortened. He does not believe a boil, headache, stomachache, or cold is such a change in health. Beck admitted the application does not specify that only “material” changes in health be reported, but he believes that is the reasonable interpretation.

With regard to an agent’s inquiry of the insured’s health, he testified that making an inquiry can be something as simple as just looking at someone. Beck further testified Cherry had an obligation under the insurance policy application to notify Banner of any change in his health and that if Banner believed a boil was a change in health, the policy could be voided based on a material misrepresentation.

Mrs. Cherry was the last witness to testify. She stated her husband was healthy in November and December of 1999 and was training to run the New York City Marathon. She first learned of the growth behind Cherry’s ear after Christmas, and she thought it was a boil. She bought over-the-counter medications to treat it, but these medications did not work. At that point in time, she and her husband did not see the “boil” as “a big deal,” but Cherry went to the doctor because the “boil” sometimes bled in his hair. On January 7, 2000, Cherry’s dermatologist referred him to a surgeon, and the surgeon removed the growth at the end of January 2000. The growth was tested, and it was determined to be cancerous.

Mrs. Cherry testified her husband had not seen any other doctors prior to the January 7, 2000 appointment and it had been more than five years since he had a physical exam. Cherry passed away December 29, 2000.

III. Breach of Contract

Banner contends the jury’s determination that Pacheco did not breach the contract is contrary to the great weight and preponderance of the evidence, clearly wrong, and manifestly unjust because the evidence shows Pacheco breached both the insurance application and the agency agreement by not delivering the policy to Cherry and by not inquiring of anyone as to whether Cherry’s health remained in the same condition as on the date he applied for the policy. Banner claims that “Pacheco’s contract required him to physically deliver the policy to Mr. Cherry, but not to do so if Cherry was not in the same state of health and insurability as when he applied for insurance.” Banner cites paragraphs one and six of the agent/broker agreement in which Pacheco agreed (1) to comply with all underwriting guidelines, rules, and regulations of Banner, and (2) to not waive, discharge, or change any term or condition in any policy, agreement, or approved form. Banner further asserts that “[t]he agency agreement is to be read with the provisions of the insurance application.”

Paragraph ten of the agent/broker agreement specifically addresses delivery of policies as follows:

10. DELIVERY OF POLICIES
No policy shall be delivered unless at the time of delivery the applicant is in the state of health and insurability represented in Parts I and II of the application .... If the applicant is not in the state of health and insurability represented in the application when delivery is attempted, the policy shall not be delivered, but shall immediately be returned to the Company with a full written explanation.

The insurance application also contains a provision regarding delivery of the policy:

Except as may be provided in a duly issued Conditional Receipt, no insurance shall take effect unless and until the policy has been physically delivered and the first full premium paid during the lifetime of the insured(s) and then only if the person(s) to be insured is (are) actually in the state of health and insurability represented in Parts I and II of this application and any supplements thereto, copies of which shall be attached to and made part of any policy to be issued.

We note the plain language of both the agent/broker agreement and the insurance application does not require that the agent personally deliver the policy to the insured or that the agent inquire of the insured’s health.

Banner and Pacheco’s insurance experts both testified regarding what the agent/broker agreement and the application required, and both documents were admitted into evidence. Beck, Pacheco’s expert, testified that nothing in the agent/broker agreement or application required the agent to deliver the policy in person or to ask Cherry if there had been a change in health. Beck further testified some insurance companies require delivery to person and ask for a delivery receipt and that Banner could have required in person delivery or a delivery receipt in the agreement, but it did not. He also testified that an agent asking the insured whether there has been any change in health between the time of application and the time of delivery is not, in his opinion, industry standard. Beck also stated that Cherry had an obligation under the insurance application to notify Banner of any changes to answers given in the application before accepting delivery of the policy.

Marules, Banner’s expert, testified that in his opinion Pacheco did not adhere to the delivery requirements to his contract with Banner. However, upon being asked whether the agent/broker agreement requires in-person delivery and/or that an insured be asked about his health to person, Marules admitted there are no such requirements. Marules also agreed with Beck that Cherry had obligations under the policy to advise Banner of any change in health.

The jury as trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to them testimony. Mayes v. Stewart, 11 S.W.3d 440, 451 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Because we are not the fact finder, we may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Id.

Upon being asked whether Pacheco failed to comply with his agreement with Banner, the jury answered, “No.” Based upon our review of the evidence, we conclude the evidence is both legally and factually sufficient to support the jury’s finding of no breach of contract. We overrule appellant’s issues as to the breach of contract claim.

IV. Breach of Fiduciary Duty

Banner claims the jury’s determination that Pacheco did not breach his fiduciary duty to Banner is contrary to the great weight and preponderance of the evidence, clearly wrong, and manifestly unjust. Banner argues Pacheco clearly had a duty to protect Banner’s interest and that this duty included making sure that he did not obligate Banner on a policy in which the applicant, at the time of delivery of the policy, was not in the same state of health and insurability as when the application was completed. Banner asserts that because Pacheco did not inquire about Cherry’s health, “Banner was left with no reasonable alternative but to pay the benefit as a result of Pacheco not observing his duty to Banner.”

Pacheco responds that the only duty placed on Pacheco by the application was to inform Banner of any health problem that Pacheco knew or learned about and that Pacheco did not have a duty to conduct an independent investigation of Cherry’s health before he delivered the Banner policy. In support, Pacheco references the testimony of both parties insurance experts who acknowledged Banner could have attempted to void the policy based upon Cherry’s alleged failure to advise Banner of the presence of the “boil,” regardless of what Pacheco did or did not do, and Banner chose not to bring a claim to rescind the insurance policy. Additionally, Pacheco asserts on appeal that “[tjhere is no evidence in this record that Pacheco had knowledge that Thomas Cherry was a poor insurance risk, in fact, all evidence available pointed to Thomas Cherry being in excellent health.”

The following instruction on fiduciary duty was submitted to the jury:

An insurance agent has a fiduciary relationship to an insurance company. This means that the agent owes the insurance company a duty of good faith, reasonable care and skill in performing the agents duties. The agent is responsible for any loss the insurance company sustains as a result of the violation of this duty.

The jury found that Pacheco did not fail to comply with his fiduciary duty to Banner.

We review the sufficiency of the evidence to support the jury’s finding of no breach of fiduciary duty. The evidence undisputably shows that Cherry was not diagnosed with cancer until the end of January 2000, and Pacheco did not know that Cherry had cancer until February 2000. Banner does not cite any authority that requires an insurance agent to make an independent inquiry as to an insureds health at the time of delivery of a life insurance policy. Moreover, the evidence shows Cherry and his wife did not believe the “boil” was anything serious, and Cherry did not learn the gravity of his health condition until the end of January 2000.

We have held Pacheco was not required by contract to deliver the insurance policy in person to Cherry, the insured, or to inquire at the time of such delivery as to any changes in the insured’s health. Nevertheless, counsel for Banner urges this court to hold Pacheco violated his duty to determine any changes in Cherry’s health and to report same to Banner. While we agree an agent has a fiduciary duty of good faith and fair dealing to his principal, here, Pacheco simply did not know, and had no duty to determine, Cherry’s health status at the time the policy was delivered. We decline to hold an agent breaches a duty to his principal by failing to report information of which the agent has no knowledge.

Based upon our review of the evidence, we conclude the evidence is legally and factually sufficient to support the jury’s finding Pacheco did not breach his fiduciary duty to Banner. We overrule appellant’s issues with regard to the breach of fiduciary duty claim.

V. Negligence

Banner argues the jury’s finding that Pacheco was not negligent is contrary to the great weight and preponderance of the evidence, clearly wrong, and manifestly unjust. Specifically, Banner contends Pacheco had an obligation “at the very least” to view Cherry prior to delivery of the policy to satisfy himself that Cherry was in the same state of health and insurability as when the application was completed. Banner claims the evidence shows Pacheco did not see Cherry and, thus, Pacheco did not exercise the level of care that a reasonable insurance agent would have exercised under the same conditions.

Banner does not cite any legal authority in support of its arguments that Pacheco had a duty “to view” Cherry prior to delivery of the policy. In fact, no authority is cited in the section of Banners brief challenging the legal and factual sufficiency of the jury’s finding on negligence. Banner has not adequately briefed this issue for appellate review and has waived this claim on appeal. See TEX.R.APP. P. 38.1(h). Moreover, the evidence showed Cherry was in good health according to all known information at the time of delivery of the policy. Even if we assume without deciding that Pacheco had a duty “to view” Cherry at the time of policy delivery, the evidence at trial revealed that “viewing” Cherry would not necessarily have disclosed the presence of the lesion on his scalp. In addition, there was expert testimony that Banner could have voided the life insurance policy based upon Cherry’s own failure to advise Banner of the lesion on his scalp.

Upon being asked whether the negligence, if any, of Pacheco proximately caused injury to Banner, the jury answered, “No.” We conclude the jury’s finding is supported by legally and factually sufficient evidence, and we overrule appellants issues with respect to Banner’s negligence claim.

VI. Motions

In issue two, appellant complains of the trial court’s rulings on its motion for new trial and motion for judgment notwithstanding the verdict. These motions attack the legal and factual sufficiency of the evidence to support the jury’s verdict. Because we hold the jury’s findings are supported by legally and factually sufficient evidence, we hold the trial court did not err in overruling these motions. See Hester v. Friedkin Cos., 132 S.W.3d 100, 105 (Tex.App.-Houston [14th Dist.] 2004, pet. denied); Mandell v. Hamman Oil & Ref. Co., 822 S.W.2d 153, 158 (Tex.App.-Houston [1st Dist.] 1991, writ denied).

CONCLUSION

We overrule appellant’s two issues and affirm the judgment of the trial court.

      . Appellant’s motion for judgment notwithstanding the verdict attacks the legal sufficiency of the evidence to support the jury’s findings, and its motion for new trial attacks the factual sufficiency of the evidence to support the jury’s findings.

      . Someone lined out the section of the medical examiner’s report (part three of the insurance application) inquiring whether “[o]n examination is there any abnormality of the following: ... [s]kin (include scars), lymph nodes, veins or peripheral arteries?,” and the "yes" or "no” boxes are blank.

      . The primary concern of a court when interpreting an insurance contract is to ascertain the true intent of the parties as expressed in the instrument, by giving terms their plain, ordinary, and generally accepted meaning. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). No issue was raised at trial or on appeal asserting an ambiguity in either the insurance application or the agent/broker agreement. Parol evidence is not admissible for the purpose of creating an ambiguity. See id. However, neither party objected to the admission of parol evidence in this case.

      . In Mayes v. Massachusetts Mut. Life Ins. Co., 608 S.W.2d 612, 616 (Tex. 1980), the Texas Supreme Court, upon analyzing whether the requirement that the answers in an insurance application be true and correct at the time of delivery of the policy should be considered a representation or a condition precedent, reasoned:
      [T]he insurer knows the length of delay between the completion of the application and the issuance of the policy. If this period was significant, the insurer could easily ensure that the answers were still correct at the time of issuance of the policy either by putting a good health provision in the application or by requiring a supplemental statement of health.

        Id.

      . The jury question uses the term "agreement." It is not clear whether that term refers to the agent/broker agreement and/or the insurance application and agreement. Because Banner’s brief on this issue suggests the two agreements are to be read together, jury question three must be construed as a finding Pacheco did not breach either agreement.

      . The charge submitted to the jury for breach of fiduciary duty was based on Maryland law. A specific provision in the agent/broker agreement provides that "[t]he laws of the State of Maryland shall govern all matters concerning the validity, performance and interpretation of this Agreement.” At trial, Pacheco objected to the trial court’s submission of fiduciary duty under Maryland law, and the trial court overruled his objection. On appeal, Pacheco does not complain of the trial court's submission of the fiduciary duty issue under Maryland law.

      . To avoid liability under a life insurance policy on the basis of a misrepresentation by the insured, an insurer must plead and prove five elements: (1) the making of the representation; (2) the falsity of the representation; (3) reliance thereon by the insurer; (4) the intent to deceive on the part of the insured in making same; and (5) the materiality of the representation. Mayes, 608 S.W.2d at 616; Flowers v. United Ins. Co. of Am., 807 S.W.2d 783, 785 (Tex.App.-Houston [14th Dist.] 1991, no writ).

      . In Texas, as in Maryland, an insurance agent owes his principal, the insurer, a fiduciary duty of good faith and fair dealing in all transactions on the insurer's behalf. See American Indem. Co. v. Baumgart, 840 S.W.2d 634, 639 (Tex.App.-Corpus Christi 1992, no writ). Additionally, an insurance agent owes the insurer strict integrity, fair and honest dealing, and the duty not to conceal matters which might influence his actions to the insurers prejudice. See id.


author: CHARLES W. SEYMORE, Justice.

text:
    Al AGUILAR, Appellant, v. Forrest LIVINGSTON, Appellee.
    No. 14-03-01312-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 11, 2005.

      Robert G. Moll, Houston, for appellant.
    Forrest Livingston, Dallas, pro se.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

Appellant, A1 Aguilar, appeals the trial court’s denial of his motion for default judgment in his suit against appellee, Forrest Livingston, and the subsequent dismissal of the suit for want of prosecution. Because we find that the trial court erred in denying appellant’s motion for default judgment, we reverse and remand.

BACKGROUND

Appellant filed suit against appellee to recover for property damage sustained in an automobile accident. Appellee was served on April 4, 2003; however, he did not answer the suit. Appellant filed a motion for default judgment. On October 1, 2003, the trial court denied the motion for default judgment. Although the trial court did not state the reason for its ruling, appellant asserts that the trial court determined the return of service was defective.

Meanwhile, the trial court issued a notice of a status conference and intent to dismiss for want of prosecution. The order stated that the case would be dismissed for want of prosecution if, among other reasons, a party failed to appear for a status conference on November 4, 2003 or failed to notify the court coordinator that a motion for default was pending at least fourteen days prior to the status conference. On November 5, 2003, the trial court entered an order dismissing the case for want of prosecution because the parties “having been notified of the Status Conference ... failed to appear.” This appeal followed.

Denial of Motion FOR Default Judgment

In his first issue, appellant contends that the trial court erred in denying his motion for default judgment. Ordinarily, the denial of a default judgment is an interlocutory order not subject to appeal. See Tex. Civ. PRAc. & Rem.Code Ann. 51.014 (Vernon Supp.2004-05); see also Hines v. Flores, No. 09-02-519 CV, 2003 WL 1848656, at *1 (Tex.App.-Beaumont Apr. 10, 2003, order) (not designated for publication). However, appellate courts have considered the denial of a default judgment when, as here, the denial is challenged in an appeal from a final judgment or order. See Aguilar v. Alvarado, 39 S.W.3d 244, 247-48 (Tex.App.-Waco 1999, pet. denied); see also Thomas v. Univ. of Texas Med. Branch at Galveston, Nos. 01-03-00471-CV, 01-03-00472-CV, 2004 WL 1516456, at *4 (Tex.App.-Houston [14th Dist.] July 8, 2004, no pet.) (not designated for publication); Holleman v. West End Cab Co., No. 07-99-0232-CV, 2000 WL 898003, at *2 (Tex.App.-Amarillo July 6, 2000, pet. denied) (not designated for publication). These courts have reviewed the denial of a motion for default judgment under the abuse of discretion standard. See Aguilar, 39 S.W.3d at 247-48; see also Thomas, 2004 WL 1516456, at *4; Holleman, 2000 WL 898003, at *2.

While a determination of factual matters is left to the sound discretion of the trial court, a trial courts failure to analyze or apply the law correctly is an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Here, the facts are undisputed because there is no appellee’s brief, see Tex.R.App. P. 38.1(f), and the return of service at issue is included in the record. Therefore, we will determine whether the trial court failed to correctly analyze and apply the law to the facts. See id.

At any time after a defendant is required to answer, the plaintiff may take a default judgment if the defendant has not previously filed an answer, and the citation with the officer’s return has been on file with the clerk for ten days. See Tex.R. Civ. P. 239; Tex.R. Civ. P. 107. Here, appellee did not file an answer, and the citation and return of service had been on file for ten days when appellant moved for a default judgment.

According to appellant, the trial court determined that the return of service is defective because it did not show the city and state of service. However, the trial courts order denying the motion for default judgment does not indicate that the trial court determined the return is defective, much less why it is defective. Nonetheless, “Defective Service” is hand-written at the bottom of the citation, and “Ret Defective Dwp 11-4” is hand-written on the motion for default judgment. Therefore, presumably the trial court did determine that the return is defective.

However, we conclude that the return is not defective. A return must state when the citation was served, state the manner of service, and be signed officially by the officer affecting service. Tex.R. Civ. P. 107; see Houston Pipe Coating Co. v. Houston Freightways, Inc., 679 S.W.2d 42, 44 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). This return states when the citation was served, states the manner of service, and is signed officially by the officer affecting service.

Even if we assume that the trial court determined the return is defective because it does not show both the city and state of service, we note that Rule 107 does not even require that a return show the place of service. See Tex.R. Civ. P. 107; Hudler-Tye Const., Inc. v. Pettijohn & Pettijohn Plumbing, Inc., 632 S.W.2d 219, 221 (Tex.App.-Fort Worth 1982, no writ) (recognizing Rule 107 has no requirement that the return show the place of service). However, Rule 16, governing processes in general, requires that the officer state the place of service on the “process. ” Tex.R. Civ. P. 16 (emphasis added); see Hudler-Tye Const., Inc., 632 S.W.2d at 221. It is unclear whether Rule 16 requires that the place of service be included on both the citation and the return. Nevertheless, even if Rules 16 and 107 conflict, this return clearly shows the place of service. The Dallas County officer stated that service was executed in Dallas County, Texas by delivering the citation to appellee at 1334 Carson St. Moreover, the officer indicated on the citation that appel-lee was served at 1334 Carson St., Dallas, Texas. Therefore, service is not defective.

The only slight irregularity on the return is the officer’s failure to show the time that he received the citation on the blank space included for that purpose. Rule 107 does not require that a return state the time that the officer received the citation. See Tex.R. Civ. P. 107. However, Rules 16 and 105 provide that the officer to whom a process is delivered shall endorse on the “process” the date and hour he received it. Tex.R. Civ. P. 16 (emphasis added); Tex.R. Civ. P. 105 (emphasis added). Again, it is unclear whether Rules 16 and 105 require that both the citation and return show the hour the officer received the citation. Nevertheless, to the extent Rules 16 and 105 conflict with Rule 107, the citation shows the date and time it was received by the Dallas County constable. Therefore, we cannot conclude that the officer’s failure to also note the time he received the citation on the return renders service defective. See Johnson v. Cole, 138 S.W.2d 910, 912 (Tex.Civ.App.-Austin 1940, writ ref'd) (finding that mistake on return of service as to the date officer received the citation did not render service void because citation was duly issued, duly and timely served upon defendant, and complied with the law in all other respects).

In sum, because appellee failed to answer the suit, and a valid return of service was on file for at least ten days when appellant moved for default judgment, appellant was entitled to a default judgment. See Tex.R. Civ. P. 239; Tex.R. Civ. P. 107. Therefore, the trial court abused its discretion in denying appellant’s motion for default judgment. See Walker, 827 S.W.2d at 840. Accordingly, we sustain appellant’s first issue.

However, remand is necessary for the award of damages and rendition of final judgment. When a default judgment is rendered, if the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its direction, and final judgment shall be rendered, unless the defendant demands and is entitled to a jury trial. See Tex.R. Civ. P. 241. If the claim is unliquidated or not proved by an instrument in writing, the court shall hear evidence as to damages and render judgment, unless the defendant demands and is entitled to a jury trial. See Tex.R. Crv. P. 243. Here, it is unclear whether the damages are liquidated or unliquidated. Regardless, in either case, the trial court must award damages according to the prescribed procedure and render final judgment. See Tex.R. Crv. P. 241; Tex.R. Crv. P. 243.

Accordingly, because the trial court erred in denying the motion for default judgment, we reverse the subsequent order dismissing the case and remand for further proceedings consistent with this opinion.

      . On October 7, 2003, appellant filed a motion to reconsider denial of his motion for default judgment. The record does not reflect a ruling on the motion to reconsider.

      . Appellant refers to a "standard-form order" attached to the trial courts order stating, "A DEFECT IN THE RETURN” and "no complete address including CITY/STATE.” However, this "standard-form order” is not included in the record.

      . The return shows the date the officer received the citation, but not the hour.

      . Based on our disposition of appellant’s first issue, we need not address his second issue complaining that the trial court improperly dismissed the suit for want of prosecution. We note that the trial court stated in the dismissal order that appellant failed to appear at the status conference. However, if the trial court had properly granted the default judgment, there would have been no need for a status conference a month later and no "want of prosecution” prompting dismissal.

      . A claim is liquidated if the amount of damages may be accurately calculated by the trial court from the factual, as opposed to the conclusory, allegations in the plaintiff’s petition and the instrument in writing. Abcon Paving, Inc. v. Crissup, 820 S.W.2d 951, 953 (Tex.App.-Fort Worth 1991, no writ); Higgins v. Smith, 722 S.W.2d 825, 827 (Tex.App.-Houston [14th Dist.] 1987, no writ). Here, the appellant’s petition and the instrument in writing conflict as to the amount of damages. In his petition, appellant alleges that the cost to repair his vehicle was $7,000. However, the affidavit of an insurance claims examiner and supporting appraisal attached to the motion for default judgment show that the cost to repair the vehicle was $6,657.31. On remand, the trial court can determine whether the damages are liquidated or unliquidated and award damages according to the appropriate procedure.


text:
    Andre D. BELLER, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01175-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 13, 2005.
    Danny K. Easterling, Houston, for appellant.
    Carmen Castillo Mitchell, Houston, for appellee.
    Panel consists of Justices ANDERSON, FOWLER, and FROST.
   OPINION

JOHN S. ANDERSON, Justice.

A jury convicted appellant of the felony offense of possession with intent to deliver a controlled substance, cocaine, weighing more than one gram and less than four grams. The indictment included two enhancement paragraphs that the jury found to be “true,” and the jury assessed punishment at confinement for 99 years in the Texas Department of Criminal Justice, Institutional Division. Appellant asserts a single issue on appeal: whether the evidence is legally sufficient to support his conviction for possession with intent to deliver more than one gram of cocaine. We affirm.

Factual BackgRound

On April 30, 2003, around 2:30 p.m., Officer Jason Dunn was conducting surveillance and watching for criminal activity in an unmarked police car near downtown Houston when he observed a narcotics transaction take place between appellant and another individual. After the transaction was complete, Officer Dunn observed appellant walk away from the individual and down the street where appellant met up with a second individual. Officer Dunn radioed other officers in the area, informed them of the transaction he had observed, and provided the officers with descriptions of appellant and the other individuals involved.

Officers M.V. Richard and J.E. Price, both in uniform and in marked patrol cars, were located nearby and responded to Officer Dunn’s call. Officer Dunn observed Officers Richard and Price pull up in their patrol cars to where appellant and the second individual were standing. When Officer Price got out of his car, appellant and the other individual ran in opposite directions. Officer Dunn testified that Officer Richard chased and captured the individual involved in the first narcotics transaction, and Officer Price chased after appellant.

Officer Price testified that he received a call over the radio from Officer Dunn describing a suspect, what he was wearing, and his direction of travel. When Officer Price pulled up to where appellant and the second individual were standing, they appeared to be exchanging something. Officer Price got out of his patrol car, and both appellant and the other individual took off running. Officer Price chased after appellant, and during the chase, appellant climbed over a fence. Officer Richard was on the other side of the fence where appellant was, and Officer Price then saw appellant dive underneath a house situated on cement blocks in an attempt to get away. Officer Richard grabbed and struggled with appellant’s legs which were sticking out from underneath the house and pulled appellant out. Officer Richard searched appellant and found a bag of marijuana in his pocket. Officer Richard crawled underneath the house where appellant had been, and when Officer Richard reappeared, he was holding several white chunky substances that appeared to be crack cocaine.

Officer Richard testified that he approached and detained the individual involved in the first narcotics transaction with appellant, and after checking out the individual’s information on the police computer, he drove to the location where Officer Price was last known to be chasing appellant. He saw appellant hanging from a fence and fall to the other side, at which time Officer Richard ran around the front of the house to the other side. He observed appellant crawl underneath a house situated on cement blocks and get stuck. Officer Richard grabbed and struggled with appellant’s legs, and he saw appellant reach into his front pocket and throw several white “chunks” on the ground in front of him underneath the house. Officer Richard pulled appellant from underneath the house and arrested him. Officer Richard crawled underneath the house to recover the loose rocks of cocaine. He testified that eight rocks of cocaine were recovered, and there was some dirt and mud on the rocks because it was muddy underneath the house.

J.K. Carpenter, a drug chemist for the Houston Police Department, testified that he conducted three tests on the white rocks to determine whether the rocks were crack cocaine, and all three tests confirmed the rocks were cocaine. He weighed the rocks without the bag they were in, and the weight of the rocks, including any adulterants and dilutants, was approximately 1.7 grams. He testified that the rocks were 72.2 percent pure cocaine. The eight rocks of cocaine were admitted into evidence.

Defense counsel asked Carpenter how much the dirt and grass on the cocaine weighed, and Carpenter responded that he “pick[ed] as much of the dirt and grass as [he] could off of it and just weighed the material itself [and][a]pproximately 1.7 grams remain[ed].” When asked whether there is any dirt or grass in the cocaine, Carpenter responded, “Still a tiny bit left.” As to whether he weighed the dirt, Carpenter stated that he did not, and he testified that he considered the dirt to be a dilutant. Upon further cross-examination, he testified that generally he tries “to scrape off as much of the stuff off of it as [he] can, the dirt that covers it.... Because [he] want[s] the analysis to be [as] pure as [he] can get it.” He testified that people do not cut cocaine with dirt, but he considered “these small, tiny trace microscopical [sic] amounts on there.” He stated that he had seen cocaine cut with sand.

Discussion

On appeal, appellant argues that “[b]ecause the State could only give an ‘approximate’ weight of the aggregate substance and it improperly included an indeterminate amount of ‘dirt and mud’ in the amount as a ‘dilutant,’ the jury could only surmise whether the weight of the cocaine was over one gram.” Appellant contends the State failed to meet the high standard of proof beyond a reasonable doubt for the following two reasons: (1) contrary to Carpenter’s testimony at trial, the dirt and mud were not dilutants and should not have been included in the aggregate weight to increase the level of the offense; and (2) the State was only able to give an “approximate” weight of the rocks and failed to segregate the weight of the dirt and any other foreign substances remaining on the eight rocks.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Here, the indictment charged that on or about April 30, 2003, appellant “did then and there unlawfully, knowingly possess with intent to deliver a controlled substance, namely, Cocaine, weighing more than 1 gram and less than 4 grams by aggregate weight, including any adulterants and dilutants,” and the jury found appellant guilty of this second degree felony offense. See Tex. Health & Safety Code Ann. § 481.112(a), (c) (Vernon 2003). We review whether the evidence is legally sufficient to prove the weight of the cocaine was more than one gram.

To obtain a conviction for possession of a controlled substance, the State must prove that a controlled substance, plus adulterants and dilutants proved to exist within it, weighs at least as much as the minimum weight alleged in the indictment. Hines v. State, 976 S.W.2d 912, 912 (Tex.App.-Beaumont 1998, no pet.). An adulterant or dilutant is defined by the Texas Health and Safety Code as “any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance.” Tex. Health & Safety Code Ann. § 481.002(49) (Vernon Supp.2004-2005). The State is not required to prove that any added adulterants or dilutants did not affect the chemical activity of the controlled substance. Essentially, the State only needs to demonstrate that part of a substance is a controlled substance and that the aggregate weight exceeds the minimum statutory amount. Melton v. State, 120 S.W.3d 339, 344 (Tex.Crim.App.2003).

The State’s drug chemist, Carpenter, testified that the eight rocks of cocaine weighed 1.7 grams, of which 72.2 percent was pure cocaine, and that the dirt on the rocks was “small, tiny trace microscopical [sic] amounts.” Carpenter also testified that he considered the dirt on the rocks to be a dilutant. The specific facts and circumstances of this case lead to the conclusion that the dirt on the rocks is not a “dilutant” as that term is defined by the Health and Safety Code. However, the eight rocks of cocaine were admitted into evidence, and the jury saw the cocaine. Pictures of the cocaine also are included in the appellate record and reveal only tiny flecks of dirt on the rocks of cocaine.

The fact that the cocaine was not infused with dirt but had only minute particles of dirt supports the jury’s conclusion that the net weight of the eights rocks of cocaine exceeded one gram, and this constitutes a rational inference from empirical data. To reduce the weight of the cocaine to less than one gram would have required the presence of at least .7 grams of dirt, approximately forty percent of the gross weight of the entire cache of narcotics. Based on the jurors’ own inspections of the cocaine and Carpenter’s testimony, the jury reasonably could have concluded that the aggregate weight of the rocks was more than one gram. See Melton, 120 S.W.3d at 343-44. Accordingly, when viewed in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt all of the elements of the offense charged in the indictment including the element that appellant possessed cocaine in an amount of less than four grams but more than one gram. We overrule appellant’s sole issue.

The judgment of the trial court is affirmed.

      . Appellant cites the unpublished opinion Seals v. State, No. 05-03-01105-CR, 2004 WL 639678 (Tex.App.-Dallas 2004, pet. granted) (not designated for publication), in support of his contention that the State was required to segregate and weigh the dirt on the rocks of cocaine. Seals is distinguishable from the case at bar and involved the issue of whether blood that becomes mixed with methamphetamine when the methamphetamine is being injected is an adulterant or dilutant under the Texas Health and Safety Code. 2004 WL 639678, at * 2. The vial at issue in Seals contained methamphetamine, blood, and ni-cotinamide (vitamin B) weighing 1.50 grams. 2004 WL 639678, at * 1. The Dallas Court of Appeals held blood is not a dilutant and reversed the judgment of conviction, reasoning that the jury should not have considered the blood in determining the aggregate weight of the controlled substance since the jury was provided (1) no other explanation for the blood in the vial; (2) no weight of the substance in the vial minus the blood, and (3) no evidence the blood was mixed with the methamphetamine as the result of anything other than appellant’s explanation, which was that when he tried to inject himself and was unsuccessful, blood would enter the syringe, and he would squirt what could not be used into the vial. Id. Unlike Seals, in this case, the jury reasonably could have concluded that the aggregate weight of the rocks was more than one gram based on the jurors’ own inspections of the cocaine and Carpenter’s testimony.