In the Estate of Bryan D. Davidson v. the State of Texas

Opinion issued December 23, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00026-CV
———————————
IN THE ESTATE OF BRYAN D. DAVIDSON, DECEASED

On Appeal from the Probate Court
Galveston County, Texas
Trial Court Case No. PR-0081453

MEMORANDUM OPINION

The Dead Man’s Statute took up residence in the state’s lawbooks by 1871

and lived there for more than a century.1 But its critics always outnumbered its fans.

1
See Lewis v. Aylott’s Heirs, 45 Tex. 190, 200–01 (1876); Garner v. Cleveland, 35
Tex. 74, 76–77 (1872); Maurice Cheek, Testimony as to Transactions with
Decedents, 5 TEX. L. REV. 149, 149 n.4 (1927).
Some said that the “time consumed in applying and interpreting the statute is out of

all proportion to the doubtful good it does.”2 Others added that “at its best, the dead

man’s statute is full of snares, traps, and pitfalls.”3

Although the Dead Man’s Statute lost its lease in the Texas statute books more

than 40 years ago, it has since taken up residence in one half of a rule of evidence.

See TEX. R. EVID. 601(b). It arises here in the context of a dispute regarding the

existence of an informal, or common-law, marriage. Both sides share the traditional

understanding that the Dead Man’s Rule can block testimony about an agreement to

be married.4 Does it block such testimony here?

The deceased is the late Bryan Davidson of Galveston County, who died at

age 62 and left behind the following survivors:

• An ex-wife (Debbie Davidson),
• Three adult sons (appellants Garet Davidson, Jeffrey Davidson, and
Kyle Davidson, collectively “Bryan’s sons”), and
• Either a girlfriend or a wife (appellee Sherry Myers).

2
Cheek, 5 TEX. L. REV. at 172.
3
A. R. Stout, Should the Dead Man’s Statute Apply to Automobile Collisions?, 38
TEX. L. REV. 14, 23 (1959).
4
See Berger v. Kirby, 105 Tex. 611, 615, 153 S.W. 1130, 1132 (1913); Edelstein v.
Brown, 100 Tex. 403, 405, 100 S.W. 129, 129–30 (1907); see also Joseph W.
McKnight, Family Law: Husband and Wife, 44 SW. L.J. 1, 2 (1990) (“If one of the
parties is dead, the survivor will be required to meet the limitation imposed by
Evidence Rule 601(b) by providing corroboration of an alleged transaction with the
decedent.”).
2
Sherry presented evidence that she and Bryan lived together and that they held

themselves out as married. But did they in fact agree to be married? Bryan cannot

answer the question because he has passed away, and Sherry might or might not be

able to say, depending on whether the rule lets her.

The parties tried the issue of common-law marriage to the bench. Each side

called witnesses, examined them, and presented the factfinder with evidence that

would seemingly qualify as conflicting—were it not for the twist presented by the

Dead Man’s Rule. See id.

Sherry testified about what Bryan said about agreeing to be married. After

Sherry rested her case-in-chief, Bryan’s sons moved for directed verdict, arguing

that the Dead Man’s Rule barred the trial court from considering her testimony on

this matter. The court denied the motion for directed verdict. When all the pertinent

evidence had come in, the judge ruled that, though the evidence was conflicting, a

preponderance favored Sherry’s position that an informal marriage existed: “I think

there is enough proof to show—more proof to show that there was a common-law

marriage than not.” The court declared that Sherry was Bryan’s surviving spouse.

Bryan’s sons appeal and invoke Rule 601(b) in seeking reversal of the trial court’s

declaratory judgment.

We affirm.

3
Background

Application of the Dead Man’s Rule requires a short review of the proceedings

below. After Bryan’s death, his sons found a copy of a 2002 will—executed when

Bryan and Debbie were still married—and requested that the trial court admit it to

probate. Sherry objected to their application, intervened in the case, and alleged that

she had an informal marriage with Bryan. She further alleged that he had revoked

the 2002 will and died before he could execute a new one. Sherry also filed a petition

requesting declarations that she and Bryan had an informal marriage and that she

was Bryan’s surviving spouse.

The trial involved numerous witnesses, documents, and text messages. The

parties clashed over each element of common-law marriage, and they clash over

them again on appeal. We summarize the testimony presented on each of the

elements. See TEX. FAM. CODE § 2.401(a)(2) (providing elements that party must

prove to establish informal marriage).

A. Agreement to Be Married

Sherry and Bryan began dating in 2001, while Bryan and Debbie were still

married. Debbie was aware of Bryan and Sherry’s relationship. Divorce proceedings

between Bryan and Debbie began in 2012, and their divorce was finalized in 2014.

Debbie and Bryan remained close after their divorce, but Debbie and Sherry did not

get along.

4
The most cogent evidence relating to whether Bryan and Sherry agreed to be

married came from Sherry herself:

Q. So let’s kind of come forward to, you know, if we’re admitting
that we were not married from 2001 to 2012, or actually 2014
because he [Bryan] was still married, the divorce hadn’t been
finalized, when do you—when do you assert that things changed
from being we’re dating to being we’re now a married couple?
A. 2014 we went up to Bobby’s [Bryan’s father], him and Karla
[one of Bryan’s sisters] had went over the jewelry together and
everything. Then when we got home, it was September, that was
our anniversary from the first real date or sexual encounter, two
thousand—9/11. And so that was always our anniversary. So on
that anniversary, after we had gotten back, that’s when he and I
had the conversation that we were—divorce is final, we’re
common law, we’re together. And his exact words were, you
f*** around on me, I’ll kill you. And I said to him, if you f***
around on me, I’ll kill you, too. And we laughed like we were
exclusive. Then in 2015 I had already gotten the ring, his
momma’s ring, and then that’s when it was the first time, like
we’d kind of told I think like Sheryl [Guss, a friend of the
Davidson family] and them, like it’s official, but we already lived
as common law from the moment he gave me the ring.
Q. Okay. So—so in terms of the agreement between the two of you
that you were married goes back to September of 2014?
A. Yes.

Sherry and Bryan began to let people know about their marriage, but they did not

“publicize” the change in their relationship to Debbie, who would occasionally send

text messages to Bryan with rude comments about Sherry.

In August 2017, Hurricane Harvey hit the greater Houston area and caused

widespread destruction, including on the land in Santa Fe where Bryan and Sherry

5
lived. They could not remain on the property in the aftermath of the storm. They

were also unable to find a place to live together during the cleanup. Bryan moved

back in with Debbie. Sherry, her adult daughter, and her granddaughter moved in

with Sherry’s mother. Bryan and Sherry lived apart from August 2017 until January

2019, when they were able to move back onto their property.

Even though Bryan and Sherry did not live together for approximately sixteen

months after Hurricane Harvey, they did not break up. They purchased a car together

in 2018. In connection with this purchase, they applied for life insurance. When

asked who they wanted to be covered by life insurance, they selected the “Both

borrowers (joint)” option, an option that was “[a]vailable for spouses and business

partners only.”

Sherry’s counsel asked her the following series of questions:

Q. Do you feel like y’all broke up in 2017?
A. No.
Q. Okay. Do you feel like prior to 2017 that you all had an
agreement that you were married?
A. Yes.
....
Q. Okay. So even if somehow that [representations to others in the
community and family members that they were married] doesn’t
qualify, then in 2018 we have a document where he says that
y’all are borrowing as husband and wife, correct?
A. Yes.

6
Q. And into 2018, 2019, 2020, ‘21 were you still representing to
people that y’all were married?
A. Yes.
Q. Did you still have an agreement between the two of you that you
were husband and wife?
A. Yes.
Q. And starting January 31st, 2019, through the date of his death,
were you living together?
A. Yes.

Nobody else offered any direct evidence on the element of agreement, and Sherry

does not cite any in her brief.

B. Living Together as Spouses

Family members—including Bryan’s father, Sherry’s father, and Sherry’s

children from a prior relationship—and other witnesses testified that Bryan and

Sherry lived together. Sherry’s father “knew that they were living as man and wife,”

and he considered Bryan to be his son-in-law. A witness who sold a boat to Bryan

and Sherry stated, “Yeah, they lived together and I believe it was on property and

they had—they had some cattle or some livestock.” This witness further testified: “I

think they considered themselves married is what I believe. They were both talking

about it. They were married, they had a lot of dreams of what they wanted to do with

their life.”

Sherry also testified to this element directly, stating, “[W]e were living

together as husband and wife, yes.”

7
C. Representing to Others That They Were Married

Sherry also presented considerable testimony indicating that she and Bryan

held themselves out as married. Just as an example, Bryan’s father testified that on

several occasions, “I heard him call her little wife.” He further stated that they held

themselves out as husband and wife. He introduced them to others as his son and

daughter-in-law, and neither Bryan nor Sherry corrected him and said that they were

not married. He also stated that Sherry wore a wedding ring that Bryan had given

her, and that ring had previously been Bryan’s mother’s wedding ring.

Sherry’s father and daughter also heard Bryan refer to Sherry as his wife.

Bryan once told Sherry’s father that “you’re my father-in-law.” Similarly, Sherry’s

daughter considered Bryan to be her father, and he repeatedly introduced her as his

daughter.

This element of informal marriage had support from another witness, Lynett

Gace. She testified that Bryan and Sherry, her neighbors, “always” referred to each

other as “my husband” or “my wife.” Bryan’s sisters Kerri and Karla offered similar

testimony. Kerri considered Sherry to be her sister-in-law, rather than just a woman

dating her brother. Karla, a wedding planner, testified that Bryan and Sherry’s plans

to have a formal wedding ceremony were “on hold” due to Bryan’s health problems.

She stated, “They were already married in their eyes, and they were going to have a

celebration once he got his heart [transplant].”

8
D. Conflicting Evidence

Bryan’s sons presented evidence contesting each element.

Their evidence included documents, such as Bryan’s 2020 Social Security

Benefit Statement and his 2021 car insurance card, that did not name Sherry or

reflect that she was Bryan’s wife. Bryan’s calendar for 2020 did not include a

notation for a wedding anniversary. Additionally, in January 2020, Bryan updated

his financial account with Ameriprise Financial Services to list both Debbie and

Sherry as equal beneficiaries. Under “Relationship,” he named Debbie as “Ex Wife”

and Sherry as “Girlfriend.” Six months later, in July 2020, Bryan updated the

beneficiary designations again to give Debbie a 20% share and Sherry an 80% share.

The designation continued to list Sherry as “Girlfriend.”

Longtime friends of Bryan’s, a second cousin, and Debbie all testified that

they never heard Bryan refer to Sherry as his wife. Bryan’s cousin never saw him

wearing a wedding ring from Sherry, and she never saw Sherry wearing a wedding

ring from Bryan. Additionally, Bryan and Debbie exchanged text messages in

November 2020, approximately two months before Bryan’s death. During this

conversation, Debbie referenced another family member’s social media post and

asked, “Aunt [S]herry??? So are y’all married??” Bryan responded, “Hell no. Take

a break Debbie damn.”

9
One of Bryan’s friends testified that he believed Sherry “was living with her

daughter or her mother” prior to Hurricane Harvey. Although she spent nights with

Bryan, she had her own home, and they were not living together. This friend did not

believe that Bryan and Sherry were living together “because [he] had heard several

times, I don’t want to be caught out here, you know. . . . [b]y the boys or Debbie or

anybody that would come out there.” He testified that Bryan and Sherry broke up

after Hurricane Harvey, and Bryan moved back in with Debbie and tried to reconcile.

Debbie also testified that she and Bryan attempted to reconcile during this period,

and she also believed that Sherry was living with her mother and not with Bryan

during the entirety of their relationship.

At the close of testimony on this issue, the trial court stated that “there is

enough proof to show—more proof to show that there was a common law marriage

than not.” In a written judgment, the court found “that there is sufficient evidence to

establish that an informal marriage existed between Sherry Myers and Bryan D.

Davidson.” The court granted Sherry’s petition for declaratory judgment and

decreed that “Sherry Myers is the surviving spouse of Bryan D. Davidson.”5

5
On the second day of trial, the trial court heard evidence relating to whether Bryan’s
2002 will should be admitted to probate or whether he had revoked that will after
his divorce. In its written judgment, the court found “that there is insufficient
evidence to overcome the presumption that Bryan D. Davidson revoked his original
Last Will and Testament.” The court denied the application to probate the 2002 will
submitted by Bryan’s sons, refused to admit that will to probate, and ordered that
Bryan’s “legal heirs must be determined through an heirship proceeding.” Bryan’s
10
Informal Marriage and the Dead Man’s Rule

Bryan’s sons raise two related issues on appeal: (1) the trial court’s finding

that an informal marriage existed between Bryan and Sherry was against the great

weight and preponderance of the evidence such that the finding was clearly wrong

and manifestly unjust; and (2) the court abused its discretion by denying their motion

for directed verdict because Sherry presented no evidence—specifically, no

evidence that was not barred by the Dead Man’s Rule—that an express agreement

to be married existed between her and Bryan. Bryan’s sons challenge the sufficiency

of the evidence supporting each of the three elements of informal marriage.

A. Standard of Review and Governing Law

A trial court’s finding that an informal marriage exists is subject to legal and

factual sufficiency review on appeal. Russell v. Russell, 865 S.W.2d 929, 933 (Tex.

1993); Nguyen v. Nguyen, 355 S.W.3d 82, 87–88 (Tex. App.—Houston [1st Dist.]

2011, pet. denied). We apply the usual standards of review when considering

whether legally and factually sufficient evidence supports a trial court’s finding

following a bench trial. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005) (stating that “[t]he final test for legal sufficiency must always be whether the

evidence at trial would enable reasonable and fair-minded people to reach the verdict

sons do not challenge the portion of the trial court’s judgment concerning the will
on appeal.
11
under review” and that we must credit favorable evidence if reasonable jurors could

and disregard contrary evidence unless reasonable jurors could not); Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986) (per curiam) (stating that in factual sufficiency

review, we must consider all evidence and should set aside verdict “only if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust”).

When a trial court’s denial of a directed verdict is based on the evidence, we

apply a legal sufficiency or “no evidence” standard of review. Austin Bridge & Rd.,

LP v. Suarez, 556 S.W.3d 363, 376 (Tex. App.—Houston [1st Dist.] 2018, pet.

denied). “A directed verdict is proper only under limited circumstances, such as

when there is no evidence of an essential element of a claim or defense, or when the

evidence conclusively establishes the right of the movant to judgment or negates the

right of the opponent.” Id.

A party must prove three elements to establish a valid informal marriage:

(1) the parties agreed to be married; (2) after the agreement, the parties lived together

in Texas as spouses; and (3) the parties represented to others in Texas that they were

married. TEX. FAM. CODE § 2.401(a)(2); Nguyen, 355 S.W.3d at 88. An informal

marriage does not exist until the concurrence of all three elements. Nguyen, 355

S.W.3d at 88; Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.—Houston [1st Dist.]

2001, pet. denied). The party seeking to establish the existence of the marriage bears

12
the burden to establish these elements by a preponderance of the evidence. Nguyen,

355 S.W.3d at 88.

To establish an agreement to be married, the evidence must show that the

parties intended to have “a present, immediate, and permanent marital relationship

and that they did in fact agree to be” spouses. Eris, 39 S.W.3d at 714. A proponent

of an informal marriage may prove an agreement to be married by direct or

circumstantial evidence. Small v. McMaster, 352 S.W.3d 280, 283 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied); see Russell, 865 S.W.2d at 933 (“Proof of

an agreement to be married may be made by circumstantial evidence or conduct of

the parties.”). “The testimony of one of the parties to the marriage constitutes some

direct evidence that the parties agreed to be married.” Small, 352 S.W.3d at 283. A

factfinder may infer an agreement to be married “from cohabitation and

representations.” Eris, 39 S.W.3d at 714.

With respect to the second element, living together as spouses, “[c]ohabitation

need not be continuous for a couple to enter into a common-law marriage.” Small,

352 S.W.3d at 284.

The third element, representing to others, is “synonymous with the judicial

requirement of ‘holding out to the public.’” Eris, 39 S.W.3d at 714–15 (quoting

Winfield v. Renfro, 821 S.W.2d 640, 648 (Tex. App.—Houston [1st Dist.] 1991, writ

denied)). This element may be established by the conduct and actions of the parties.

13
Small, 352 S.W.3d at 285; Eris, 39 S.W.3d at 715 (“Spoken words are not necessary

to establish representation as husband and wife.”). However, occasional

introductions as spouses are not sufficient to establish this element. Small, 352

S.W.3d at 285. “Whether the evidence is sufficient to establish that a couple held

themselves out as husband and wife turns on whether the couple had a reputation in

the community for being married.” Id. Proving a reputation for being married

requires evidence that the couple “consistently conducted themselves” as spouses

“in the public eye or that the community viewed them as married.” Id. (quotation

omitted).

B. Sufficiency of Evidence to Support Each Element of Informal Marriage

1. Living together as spouses and holding out as married

We first address whether Sherry presented legally and factually sufficient

evidence that she and Bryan lived together as spouses and represented to others that

they were married.

The evidence on both elements was conflicting at trial. With respect to the

second element of informal marriage—living together in Texas as spouses—Sherry

directly testified that she and Bryan “were living together as husband and wife.”

Family members—including Bryan’s father, Sherry’s father, and Sherry’s adult

children—testified that they lived together, with Bryan’s father specifying that they

began living together in 2014 and Sherry’s daughter stating that they started living

14
together in 2012 or 2014. A witness who sold a boat to Bryan and Sherry testified

that they lived together, and this witness believed that “they considered themselves

married.” Bryan’s sons, on the other hand, presented witnesses who testified to the

contrary, including Debbie and a friend of Bryan’s, both of whom testified that they

believed Sherry lived with her mother but sometimes stayed overnight with Bryan.6

The evidence on the third element—representing to others in Texas that they

were married—is similarly conflicting. Bryan’s father, Sherry’s father, Sherry’s

daughter, Bryan’s sisters, and Sherry and Bryan’s neighbor all testified that they

heard Sherry and Bryan refer to each other as husband and wife on multiple

occasions. Bryan’s father introduced Bryan and Sherry as his son and daughter-in-

law, and neither of them corrected him and said that they were not married. Sherry’s

daughter testified that Bryan introduced her as his daughter, and one of Bryan’s

sisters considered Sherry to be her sister-in-law. Bryan also gave Sherry a ring,

which had been his mother’s wedding ring.

6
It is undisputed that Sherry and Bryan lived apart for approximately sixteen months
following Hurricane Harvey in August 2017. Sherry lived with her mother, while
Bryan lived with Debbie. However, “[c]ohabitation need not be continuous for a
couple to enter into a common-law marriage.” Small v. McMaster, 352 S.W.3d 280,
284 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). Sherry unequivocally
testified that she and Bryan lived together as spouses from 2014 until Hurricane
Harvey, and they lived together again from January 2019 until Bryan’s death in
January 2021.
15
Bryan’s sons called witnesses—including a cousin, family friends, and

Debbie—who testified that they never heard Bryan refer to Sherry as his wife.

Bryan’s cousin testified that neither Bryan nor Sherry wore a wedding ring.

Additionally, Bryan’s sons presented documentary evidence in which Bryan either

did not list Sherry as his wife (a Social Security benefits statement, his car insurance

cards) or expressly referred to her as his girlfriend (the Ameriprise beneficiary

designation form).7 They also presented a series of text messages between Bryan and

Debbie, exchanged approximately two months before his death, in which Debbie

asked if Bryan and Sherry were married, and he responded, “Hell no.”8

As the factfinder in this bench trial, the trial court was the sole judge of the

credibility of the witnesses and the weight to give their testimony. See City of Keller,

168 S.W.3d at 819; McKeehan v. Wilmington Sav. Fund Soc’y, FSB, 554 S.W.3d

692, 698 (Tex. App.—Houston [1st Dist.] 2018, no pet.). The trial court had to

resolve conflicts in the evidence, and it could choose to believe one witness and

disbelieve another. See City of Keller, 168 S.W.3d at 819; McKeehan, 554 S.W.3d

7
When asked about the beneficiary designation form, Sherry testified, “[I]n our eyes,
we were married. But some places aren’t going to accept that because it’s not—we
don’t have a certificate.”
8
Neither side asked Sherry about this series of text messages. However, she did
testify that because she and Debbie had an acrimonious relationship and Debbie had
a history of sending Bryan rude text messages about Sherry, she and Bryan
deliberately did not publicize their marriage to Debbie.
16
at 698. We may not substitute our judgment for the factfinder’s. McKeehan, 554

S.W.3d at 698; see City of Keller, 168 S.W.3d at 819 (“Reviewing courts cannot

impose their own opinions to the contrary.”).

The trial court heard evidence supporting Sherry’s position that she and Bryan

lived together as spouses and that they represented to others—on more than an

occasional basis—that they were married. The court also heard evidence supporting

the position of Bryan’s sons that Bryan and Sherry did not live together and that they

did not represent to others that they were married. The court resolved the conflict in

the evidence in favor of Sherry’s position. We conclude that the trial court’s implied

finding that Sherry established these two elements of informal marriage is not “so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust.” See Cain, 709 S.W.2d at 176; Small, 352 S.W.3d at 284–85.

2. Agreement to be married

Whether sufficient evidence supports the trial court’s finding of an informal

marriage therefore hinges on the evidence of the first element, an agreement to be

married. This issue in turn comes down to the testimony of Sherry. Her account of

the agreement to be married reduces to roughly three sentences:

So on that anniversary, after we had gotten back, that’s when he and I
had the conversation that we were—divorce [to Debbie] is final, we’re
common law, we’re together. And his exact words were, you f***
around on me, I’ll kill you. And I said to him, if you f*** around on
me, I’ll kill you, too.

17
While these reciprocal promises may vary from the classic exchange of words like

“I will,” “I do,” and “‘til death do us part,” they suffice to prove an agreement, as

long as they can be considered. See Eris, 39 S.W.3d at 714 (“To establish this

element of common-law marriage, the evidence must show the parties intended to

have a present, immediate, and permanent marital relationship and that they did in

fact agree to be husband and wife.”).

The only legal barrier that could nullify this testimony would be the Dead

Man’s Rule. If the rule puts the testimony off-limits, that evidence amounts to no

evidence at all. Whenever a rule of evidence bars the consideration of a piece of

testimony, the testimony falls within the second of the four categories listed by

Justice Calvert in his 1960 article on insufficiency of evidence:

“No evidence” points must, and may only, be sustained when the record
discloses one of the following situations: (a) a complete absence of
evidence of a vital fact; (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital
fact; (c) the evidence offered to prove a vital fact is no more than a mere
scintilla; (d) the evidence establishes conclusively the opposite of the
vital fact.

Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38

TEX. L. REV. 361, 362–63 (1960) (emphasis added). As an example of a rule fitting

within the second category, Justice Calvert listed the hearsay rule. Id. at 363.

18
The Dead Man’s Rule generally bars certain kinds of testimony about a

decedent’s oral statement, but its general prohibition has an exception for cases with

corroboration:

(b) The “Dead Man’s Rule.”
(1) Applicability. The “Dead Man’s Rule” applies only in a
civil case:
(A) by or against a party in the party’s capacity as an
executor, administrator, or guardian; or
(B) by or against a decedent’s heirs or legal
representatives and based in whole or in part on the
decedent’s oral statement.
(2) General Rule. In cases described in subparagraph
(b)(1)(A), a party may not testify against another party
about an oral statement by the testator, intestate, or ward.
In cases described in subparagraph (b)(1)(B), a party may
not testify against another party about an oral statement by
the decedent.
(3) Exceptions. A party may testify against another party
about an oral statement by the testator, intestate, ward, or
decedent if:
(A) the party’s testimony about the statement is
corroborated; or
(B) the opposing party calls the party to testify at the
trial about the statement.

TEX. R. EVID. 601(b); see Russell, 865 S.W.2d at 933 (“If one of the parties [to an

alleged informal marriage] is dead, the survivor will be required to meet the

limitation imposed by Evidence Rule 601(b) by providing corroboration of an

19
alleged transaction with the decedent.”) (quoting Joseph W. McKnight, Family Law:

Husband and Wife, 44 SW. L.J. 1, 2 (1990)).

Corroborating evidence “must tend to support some of the material allegations

or issues that are raised by the pleadings and testified to by the witness whose

evidence is sought to be corroborated.” Fraga v. Drake, 276 S.W.3d 55, 61 (Tex.

App.—El Paso 2008, no pet.). This evidence may come from any other competent

witness or other legal source, including documentary evidence.9 “Corroborating

evidence need not be sufficient standing alone, but [it] must tend to confirm and

strengthen the testimony of the witness and show the probability of its truth.”

Bertucci v. Watkins, 709 S.W.3d 534, 550 (Tex. 2025) (quotation omitted); see also

Corroborating Evidence, BLACK’S LAW DICTIONARY (12th ed. 2024) (“Evidence

that differs from but strengthens or confirms what other evidence shows (esp. that

which needs support).”). “It is sufficient, for instance, if the corroborating evidence

shows conduct on the part of the deceased which is generally consistent with the

9
See Odom v. Coleman, 615 S.W.3d 613, 631–32 (Tex. App.—Houston [1st Dist.]
2020, no pet.) (holding that testimony from third party provides corroboration under
Dead Man’s Rule); Quitta v. Fossati, 808 S.W.2d 636, 640–41 (Tex. App.—Corpus
Christi 1991, writ denied) (testimony from third party); Powers v. McDaniel, 785
S.W.2d 915, 920 (Tex. App.—San Antonio 1990, writ denied) (copies of checks
and decedent’s will carrying out terms of oral agreement); Donaldson v. Taylor, 713
S.W.2d 716, 717 (Tex. App.—Beaumont 1986, no writ) (newspaper advertisement
and party admission); Bobbitt v. Bass, 713 S.W.2d 217, 220 (Tex. App.—El Paso
1986, writ dism’d) (testimony from third parties).
20
testimony concerning the deceased’s statements.” Quitta v. Fossati, 808 S.W.2d 636,

640–41 (Tex. App.—Corpus Christi 1991, writ denied).

Bryan’s sons argue that Sherry’s testimony about an agreement to be married

is no evidence “because there is no evidence corroborating such an agreement and

her testimony is therefore inadmissible under Rule 601.” We disagree.

Here several witnesses testified about Bryan giving Sherry a wedding ring that

had belonged to his mother. Bryan’s father took the stand as the first witness and

testified about the relationship between his son Bryan—who had the nickname

“Tig”—and Sherry:

Q. Okay. And Tig, he got his mom’s wedding ring—
A. Yes.
Q. —from you?

A. Yes.
Q. And later he gave that to Sherry; is that right?
A. Yes.

Second, Sherry’s daughter gave similar testimony about the ring:

He had a very beautiful ring. You know, he told my mom how much he
loved her and, you know, just said he wanted to give her that ring. You
know, because she was his wife and, you know, why do you have to
have a piece of paper to say you’re married if you’re common law?

Later, a family friend named Sheryl Guss testified about the wedding ring:

It was hard to think of them any other thing than husband and wife. And
I know that she had a ring on her finger and it was like they made it

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official type thing. Because he actually gave her Harriet’s ring. That
was his mom’s ring when she passed. He gave it to her. And I don’t
think you’d give anyone your mom’s ring, something that significant,
if it wasn’t a serious, like a promise.

These excerpts meet the test for corroboration. See Bertucci, 709 S.W.3d at

550 (stating that corroborating evidence “must tend to confirm and strengthen the

testimony of the witness and show the probability of its truth”); Quitta, 808 S.W.2d

at 640–41 (stating that corroborating evidence can include evidence of deceased’s

conduct that is generally consistent with testimony of deceased’s statements). As a

result, Sherry’s testimony clears the hurdle posed by Rule 601(b) and was properly

admitted. To be sure, several pieces of evidence indicated that there was no

agreement to be married, such as Bryan’s text message to Debbie saying “Hell no”

when asked whether he and Sherry were married, or the Ameriprise financial

paperwork in which he described Sherry as his girlfriend and not as his wife. Be that

as it may, nothing in Rule 601(b) makes corroboration disappear when the evidence

is conflicting.

The trial court, as the factfinder, could have credited Sherry’s testimony

concerning an agreement to be married, testimony that was corroborated by the

testimony of Bryan’s father, Sherry’s daughter, and a family friend relating to the

ring. See McKeehan, 554 S.W.3d at 698 (stating that factfinder is sole judge of

witness credibility and may resolve conflicts in evidence). Sherry therefore

presented some evidence on this element of informal marriage, such that the trial
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court did not err by denying the motion for directed verdict asserted by Bryan’s sons.

See Austin Bridge & Rd., 556 S.W.3d at 376 (applying “no evidence” standard of

review to denial of motion for directed verdict). We further conclude that the trial

court’s implied finding that Sherry established this element of informal marriage is

not “so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust.” See Cain, 709 S.W.2d at 176; Eris, 39 S.W.3d at 714.

We overrule the two appellate issues raised by Bryan’s sons.

Conclusion

We affirm the judgment of the trial court.10

David Gunn
Justice

Panel consists of Chief Justice Adams and Justices Gunn and Guiney.

10
We abated this appeal on July 24, 2025, because the trial court’s judgment did not
dispose of a request for attorney’s fees under the Declaratory Judgments Act and
therefore was not final on its face. See Sealy Emergency Room, L.L.C. v. Free
Standing Emergency Room Managers of Am., L.L.C., 685 S.W.3d 816, 825–26
(Tex. 2024). On August 20, 2025, the trial court signed a judgment for attorney’s
fees in favor of Sherry. We reinstate the appeal on this Court’s active docket and
issue this opinion and judgment.
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