Gomez v. State

905 S.W.2d 735, 1995 WL 490837
CourtCourt of Appeals of Texas
DecidedSeptember 28, 1995
Docket14-93-00537-CR
StatusPublished
Cited by18 cases

This text of 905 S.W.2d 735 (Gomez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gomez v. State, 905 S.W.2d 735, 1995 WL 490837 (Tex. Ct. App. 1995).

Opinions

MAJORITY OPINION

HUDSON, Justice.

Appellant entered a plea of not guilty before a jury to the offense of burglary of a habitation. Tex.Penal Code Ann. § 30.02 (Vernon 1989).1 The jury found him guilty, and after finding two enhancement paragraphs true, assessed his punishment at eighty-seven years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. In four points of error, appellant contends his conviction should be reversed because the statement of facts is incomplete, the trial court proceeded with the trial even though a material witness failed to appear, the trial court permitted the prosecutor to summarize the pen packets before the jury, and the evidence is insufficient to support his conviction. We affirm the trial court’s judgment.

While the complainant was hospitalized, her home was twice burgled on successive days. Physical evidence indicated that the burglar enjoyed a snack during the second burglarious entry, and police recovered two Oscar Mayer meat wrappers, two empty Coke cans, a cigarette butt, and two cheese wrappers inside the house. Appellant’s thumbprint was found on one of the Oscar Mayer wrappers. A couple of weeks later, the police arrested appellant walking in a field near the complainant’s home. On the ground, within feet of where appellant had been walking, the police found three personal checks belonging to complainant and her driver’s license.

In his first point of error, appellant contends he is entitled to a new trial because State’s Exhibits Numbers Six through Twelve, which include the food wrappers, soft drink cans, and cigarette butt, have been lost or destroyed without his fault. In its proof, the State offered twenty-nine exhibits, all of which were lost by the court reporter. While some of the exhibits could probably be reconstructed, appellant focuses his complaint upon the exhibits which cannot be reproduced, namely, the food wrappers, soft drink cans, and cigarette butt.

To support his request for a new trial, appellant relies upon Rule 50(e) of the Texas Rules of Appellate Procedure. The rule is composed of two sentences. The first provides that when any portion of the appellate record is lost or destroyed, it may be substituted by the trial court. The second sentence, however, states that if the appellant has made a timely request for a statement of facts, but the court reporter’s notes and records have been lost or destroyed, the appellant is entitled to a new trial. Tex.R.App.P. 50(e).

Exhibits are part of the appellate record. Durrough v. State, 693 S.W.2d 404, 405 (Tex.Crim.App.1985). They are not, however, part of the court reporter’s notes. The disposition of appellant’s first point of error, therefore, depends upon whether ex-[738]*738Mbits are part of the court reporter’s “records” and, therefore, part of the statement of facts. If any portion of the statement of facts is lost or destroyed, the appellant is entitled to a new trial without a showing of harm. Emery v. State, 800 S.W.2d 530, 533 (Tex.Crim.App.1990) (quoting Harris v. State, 790 S.W.2d 568 (Tex.Crim.App.1989), and Dunn v. State, 733 S.W.2d 212 (Tex.Crim.App.1987)). We interpret the first sentence of Rule 50(e), however, to mean that if some portion of the record other than the statement of facts is lost or destroyed, the trial court may, if possible, reconstruct and substitute the missing portion without the appellant’s consent. Moreover, when reconstruction is not possible, as in this ease, the error is subject to a harm analysis.

The courts of appeals in tMs state, including tMs Court, have been less than uniform m their approach to lost or destroyed exMb-its. The Tenth Court of Appeals has specifically held that exMbits are part of the statement of facts, and may not be reconstructed without appellant’s consent. Hidalgo, Chambers & Co. v. FDIC, 790 S.W.2d 700, 702-03 (Tex.App.—Waco 1990, writ demed); see also Shields v. State, 820 S.W.2d 831, 833 (Tex.App.—Waco 1991, no pet.) Moreover, the Hidalgo court found that when exMbits are lost, the appellant is entitled to a reversal of the judgment without demonstrating any harm and without giving any reason for Ms opposition to reconstruction and substitution of the exMbits. Hidalgo, 790 S.W.2d at 702-03. The Fifth Court of Appeals has also held that exMbits are part of the statement of facts, but the court softened its holding by concluding that the loss of exMbits is subject to a harm analysis. See Adams v. Transportation Ins. Co., 845 S.W.2d 323, 326 (Tex.App.—Dallas 1992, no writ).

The Ninth Court of Appeals has held that exMbits are part of the statement of facts, and that their loss may be the basis for reversal if the lower court first concludes the exMbits cannot be reconstructed. Sheffield v. State, 777 S.W.2d 743, 744 (Tex.App.—Beaumont 1989, no pet.). Two other appellate courts have held that exMbits may be reconstructed and substituted without the appellant’s consent. Hackney v. First State Bank, 866 S.W.2d 59, 61 (Tex.App.—Texarkana 1993, no writ); First Heights Bank, FSB v. Gutierrez, 852 S.W.2d 596, 617 (Tex.App.—Corpus Christi 1993, writ demed). Curiously, the Twelfth Court of Appeals has concluded that lost exhibits are not a ground for reversal if the exMbits are merely photographs. Diaz v. Deavers, 574 S.W.2d 602, 608 (Tex.Civ.App.—Tyler 1978, writ dism’d).

TMs Court has likewise delivered conflicting opimons regarding lost or destroyed ex-Mbits. Recently, a panel of this Court held that exMbits are part of the statement of facts, and that the judgment of the lower court is subject to reversal without a harm analysis if the exMbits are lost or destroyed. Owens-Illinois, Inc. v. Chatham, 899 S.W.2d 722, 729 (Tex.App.—Houston [14th Dist.], April 13, 1995, n.w.h.) (op. on reh’g). Another panel of tMs court, however, has held that exMbits are not part of the statement of facts. See Mader v. State, 807 S.W.2d 439, 440-41 (Tex.App.—Houston [14th Dist.] 1991, pet. ref'd). Two other panels of tMs court have held the loss of exhibits may be harmless in some instances. See Johnson v. State, 846 S.W.2d 373, 377 (Tex.App.—Houston [14th Dist.] 1992), remanded on other grounds, 853 S.W.2d 574 (Tex.Crim.App.1993), rev’d on other grounds, 899 S.W.2d 250 (Tex.App. — Houston [14th Dist.], 1995, no pet. h.); Richards v. Suckle, 871 S.W.2d 239, 243 (Tex.App.—Houston [14th Dist.] 1994, no pet.)

The confusion as to whether exMbits are part of the statement of facts stems, in part, from Rule 50(a) of the Texas Rules of Appellate Procedure wMch defines the content of the appellate record as consisting of a transcript and a statement of facts.

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Gomez v. State
905 S.W.2d 735 (Court of Appeals of Texas, 1995)

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