MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellants, Jo A. Moore and Anthony Moore (the Moores), acting pro se, appeal from a judgment of eviction. The Moores were tenants of property. John A. Hurtado (Hurtado) was their landlord. Hurtado initiated, in a Bexar County Justice Court, a forcible entry and detainer proceeding to evict the Moores due to their failure to pay rent. The proceeding was submitted to a jury, which jury awarded possession to Hurtado. The Moores appealed to the Bexar County Court at Law No. 2. The latter set the cause for hearing, heard the dispute, and subsequently entered judgment awarding possession of the property to Hurtado. The Moores appealed that judgment as well and assert a number of complaints before us. We affirm.

Preliminary Observation Many of the complaints or issues before us involve questions of fact.^[1] However, the Moores supplied us with no reporter’s record transcribing the evidence and argument presented when the cause was tried by the Bexar County Court at Law. Nor does the record reflect that they requested a reporter’s record. Nonetheless, they attached documents or alleged evidence to their appellate brief, which items purport to support their claims. Since those items are not part of the official appellate record, see TEX. R. APP. P. 34.1 (describing the official appellate record as the clerk’s record and reporter’s record), we cannot consider them. In re Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.—Dallas 2012, no pet.); accord Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (stating that it would not consider a document that was not in the clerk’s record).

Sufficiency of Notice The Moores first contend that they only received three days’ notice of Hurtado’s intent to evict them. They allege that he was obligated to provide them ten days’ notice. We overrule the issue.

According to statute, a landlord must give a defaulting tenant under a written or oral lease at least three days’ written notice to vacate the premises before he files a forcible detainer suit. TEX. PROP. CODE ANN. § 24.005(a) (West 2014). The record illustrates that the Moores received written notice to vacate by January 29, 2014. Hurtado did not initiate the eviction proceeding until February 5, 2014. The period of time between those two dates exceeds three days. Therefore, Hurtado complied with § 24.005(a) of the Property Code.

While the Moores cite § 24.006 as requiring at least ten days’ prior notice, that statute pertains to the recovery of attorney’s fees. It provides:

Except as provided by Subsection (b), to be eligible to recover attorney's fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord's premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney's fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.

Id. § 24.006(a) (emphasis added). No attorney’s fees were awarded to Hurtado. Thus, whether Hurtado complied with § 24.006(a) is a moot question.^[2]

No Written Lease The Moores next contend that the obligation to pay rent arises only under a written lease. Since they signed no written lease, they allegedly had no obligation to pay rent. We know of no legal authority supporting that proposition. A lease may be written or oral, as implicitly recognized by § 24.005(a) of the Texas Property Code. Id.

§ 24.005(a) (stating that “[i]f the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days' written notice to vacate . . . .”). So, the obligation to pay rent may indeed arise under an oral lease agreement, and we overrule this issue.

Retaliation Next, the Moores argue that Hurtado’s eviction constituted retaliation. While statute prohibits a landlord from retaliating against a tenant who undertook certain action, id. § 92.331(a)(1) (describing the actions in question), an eviction is not retaliation when “the tenant is delinquent in rent when the landlord gives notice to vacate or files an eviction action.” Id. § 92.332(b)(1); Hernandez v. Gallardo, No. 08-12- 00178-CV, 2014 Tex. App. LEXIS 11878, at[*12] -13 (Tex. App.—El Paso October 29, 2014, pet. denied). The record illustrates that Hurtado sought to evict the Moores due to the non-payment of rent. The trial court also implicitly found them to be delinquent when it awarded Hurtado past due rent of $1400. So, § 92.331(a)(1) did and does not apply, and we overrule the claim of retaliation.

Remaining Issues The Moores’ remaining issues fail because of the absence of a reporter’s record. Each depended upon the presentation and consideration of evidence at trial. Furthermore, they had the duty to present a sufficient record to establish the error about which they complained. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). We do not independently determine factual matters, and, without a reporter’s record, we have no basis upon which to determine the sufficiency of the evidence as to the numerous fact issues involved. Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.—Dallas 2008, no pet.) (stating that an appellate court is not a factfinder and may not pass upon the credibility of the witnesses or substitute its judgment for that of the trier of fact). And, as previously mentioned, we cannot consider the documents appended to their brief as a substitute for the missing record. In re Guardianship of Winn, supra. Without a reporter’s record, we have no way of addressing the merits of the remaining, and factually dependent, claims. Indeed, we must presume that the evidence not provided us via the reporter’s record supported the trial court’s judgment. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991); In re Guardianship of Winn, 372 S.W.3d at 298.

Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice