Opinion issued December = 20,=20 2007
Appellant,=20
Ronald X. Gordon, challenges the trial court's final judgment, =
rendered=20
after a bench trial, in favor of appellee, Flora Godsey, in =
Gordon's suit=20
for trespass to try title. In three issues, Gordon argues that the =
trial=20
court erred in entering judgment in favor of Godsey because the =
judgment=20
"does not comport to the rules that govern a trespass to try title =
proceeding," the trial court's "findings of fact and conclusions =
of law .=20
. . ignored the truth," and the trial court "admitted [that it] =
was not=20
familiar with a trespass to try title proceeding," establishing=20
"constitutional error." We affirm.=20
In his=20
original petition, Gordon alleged that Godsey fraudulently =
"deprived [him]=20
from inheriting" real property located in Houston. Godsey filed a=20
response, in which she denied committing fraudulent acts and =
asserted that=20
she had purchased the property in question "ten years ago." Godsey =
further=20
asserted that she had since "paid taxes and legally made claim to =
said=20
property." Godsey requested that the trial court enter a judgment =
in her=20
favor for title and possession of the property. Gordon =
subsequently filed=20
a demand for "an abstract in writing of [Godsey's] claim or title =
to the=20
real property in question." Apparently in response to this demand, =
Godsey=20
provided a signed letter reasserting her claim that she had =
"purchased the=20
willed property several years ago from [her] deceased =
mother-in-law,=20
Alberta Godsey ['Alberta']." Gordon subsequently filed a "motion =
to show=20
defects in [Godsey's] title," asserting that Godsey should be =
"precluded=20
from filing any evidence of [her] claim to the land at trial." =
Gordon also=20
asserted in this motion that a recorded deed showed that he, by =
his=20
relatives, was in prior possession of the land and that he was =
entitled to=20
"recover possession of the land under the theory of prior =
possession=20
coupled with the fact Godsey has failed to show proof of [her] =
claim to=20
the land." The trial=20
court conducted a bench trial and received testimony from Gordon =
and=20
Godsey. At trial, both parties agreed that Quinn E. Gordon =
("Quinn")=20
In three=20
issues, Gordon argues that the trial court erred in entering =
judgment in=20
favor of Godsey because the judgment "does not comport to the =
rules that=20
govern a trespass to try title proceeding," the trial court's =
"findings of=20
fact and conclusions of law . . . ignored the truth," and the =
trial court=20
"admitted [that it] was not familiar with a trespass to try title=20
proceeding," establishing "constitutional error." Within these =
three=20
issues, Gordon also asserts that the trial court erred in denying =
his=20
request for a pretrial order that would have precluded Godsey from =
presenting any evidence at trial, that the trial court's admission =
that it=20
was not familiar with trespass to try title proceedings =
constituted an=20
abuse of discretion and established "judicial bias and prejudice," =
and=20
that Quinn's will was fraudulently probated in the wrong county.=20
As we have=20
recently noted, "[i]t is the burden of the appellant to bring =
forward a=20
sufficient record to show the error committed by the trial court." =
See=20
Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex.=20
App.--Houston [1st Dist.] 2007, no pet.). If, as here, the trial =
court=20
conducts a bench trial and enters findings of fact, and if the =
record on=20
appeal does not include the reporter's record from the bench =
trial, we=20
must presume that the evidence presented at trial was sufficient =
to=20
support the trial court's findings and judgment. See Nelkin v. =
Panzer, 833 S.W.2d 267, 268 (Tex. App.--Houston [1st Dist.] =
1992,=20
writ dism'd w.o.j.); see also Nicholson, 226 S.W.3d at =
583 (=20
noting that, even when there are no findings of fact, "[w]hen =
there is no=20
reporter's record made . . . , we assume that the trial court =
heard=20
sufficient evidence to make all necessary findings in support of =
its=20
judgment."); In re Mott, 137 S.W.3d 870, 877 (Tex. =
App.--Houston=20
[1st Dist.] 2004, no pet.) ("It is axiomatic that the person =
complaining=20
about a matter in the trial court has the burden to furnish the =
reviewing=20
court the record demonstrating the matter about which the person =
is=20
complaining."); Aguero v. Aguero, 225 S.W.3d 236, 238 =
(Tex.=20
App.--El Paso 2006, no pet.) ("The failure of appellant to provide =
this=20
Court with a record prevents us from reviewing the substance of =
the=20
testimony actually presented . . . to determine if it was =
improperly=20
admitted by the trial court."; "[W]ithout a record, we are unable =
to=20
determine if appellant has preserved this issue for our review."). =
Gordon=20
agrees that a review of his issues, and sub-issues, requires =
consideration=20
of the "facts and evidence" presented during the trial =
proceedings.=20
Moreover, it is undisputed that the trial court entered its =
findings of=20
fact, conclusions of law, and judgment only after conducting a =
bench trial=20
and receiving testimony from the parties and other documentary =
evidence.=20
Yet, Gordon has failed to provide this Court with an official =
reporter's=20
record from the bench trial proceedings, setting forth the "facts =
and=20
evidence" to which Gordon refers in his briefing and on which the =
trial=20
court based its findings, conclusions, and judgment. See =
Tex. R.=20
App. P. 34.6. Because Gordon has failed to provide us with a =
reporter's=20
record from the bench trial, we must presume that the evidence =
presented=20
at trial was sufficient to support the trial court's findings and=20
judgment. See, e.g., Nelkin, 833 S.W.2d at 268.=20
Accordingly, we overrule Gordon's issues to the extent they relate =
to the=20
sufficiency of the evidence to support the trial court's judgment. =
See=20
id. To the=20
extent that Gordon's appeal is not wholly resolved by his failure =
to file=20
a reporter's record, we also reject Gordon's complaint that the =
trial=20
court erred in denying his request for a pretrial order precluding =
Godsey=20
from presenting any evidence at trial. A defendant in a trespass =
to try=20
title action "may file only the plea of 'not guilty,' which shall =
state in=20
substance that he is not guilty of the injury complained of in the =
petition filed by the plaintiff against him. . . ." See =
Tex. R.=20
Civ. P. 788. "When a defendant pleads 'not guilty,' the defendant =
admits=20
possession of the subject property and claims a better title."=20
Wells, 825 S.W.2d at 486. "The burden of proof is then on =
the=20
plaintiff to establish a superior title in himself by a =
preponderance of=20
the evidence." Id. "Under Texas law, if the plaintiff =
does not=20
prove his title, the suit divests him of title and vests the title =
in the=20
defendant." Smith v. Brooks, 825 S.W.2d 208, 210 (Tex.=20
App.--Texarkana 1992, no writ). Moreover, it is well-settled that, =
in a=20
trespass to try title action, a plaintiff must "prevail on the =
superiority=20
of his title, not on the weakness of a defendant's title." =
Martin v.=20
Amerman, 133 S.W.3d 262, 265 (Tex. 2004) (citing Land v.=20
Turner, 377 S.W.2d 181, 183 (Tex. 1964)); see also =
Wells,=20
825 S.W.2d at 486 ("The plaintiff in an action in trespass to try =
title=20
must recover, if at all, on the strength of his or her own title =
and may=20
not rely on the weakness of the defendant's title). Here, as=20
recited by the trial court in its findings of fact and conclusions =
of law,=20
Godsey's response constituted a plea of "not guilty" under the =
rules.=20
See Tex. R. Civ. P. 788. Contrary to Gordon's arguments, =
after=20
Godsey filed her plea, it was not incumbent upon her to prove her =
title.=20
See Smith, 825 S.W.2d at 210. Even if we were permitted =
to review=20
the unofficial bench trial transcript contained in the clerk's =
record, the=20
trial court noted in its findings of fact and conclusions of law =
that=20
Gordon failed to present evidence establishing that Quinn's will =
was=20
improperly probated, that Gordon would have inherited the property =
had=20
Quinn's will not been improperly probated, or that Gordon had =
prior=20
possession of the property and had not abandoned the property. =
Thus, the=20
trial court did not err in concluding that Gordon never made "a =
prima=20
facia case such as to shift the burden to [Godsey] to provide =
evidence of=20
title" and that Gordon had "not proven . . . beyond a =
preponderance of=20
evidence that he has a superior claim to the property." =
Finally,=20
nothing in the record indicates that the trial court ever stated =
that it=20
was unfamiliar with trespass to try title proceedings or that, =
even if the=20
trial court had made such a comment, Gordon timely objected to any =
such=20
comment on the grounds asserted on appeal. Thus, Gordon has waived =
any=20
complaint that any such comment established "judicial bias and =
prejudice."=20
See Tex. R. App. P. 33.1; see also Aguero, 225 =
S.W.3d at=20
238. We overrule=20
Gordon's first, second, and third issues. We affirm=20
the judgment of the trial court. Panel=20
consists of Justices Nuchia, Jennings, and Keyes. 1. 2.