Jerry Scarbrough, Denise Steele, and Melissa Victoria Deaton v. Helen Purser, Sue E. Purser A/K/A Sue E. Van Zanten, Gary W. Purser, Jr., Joann M. Purser, and Elizabeth H. Tipton

• Court: Court of Appeals of Texas
• Decided: April 18, 2014
• Docket: 03-13-00025-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00025-CV

Jerry Scarbrough, Denise Steele, and Melissa Victoria Deaton, Appellants

v.

Helen Purser, Sue E. Purser a/k/a Sue E. Van Zanten, Gary W. Purser, Jr., Joann M. Purser, and Elizabeth H. Tipton, Appellees

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 236,117-B, HONORABLE ALAN MAYFIELD, JUDGE PRESIDING

MEMORANDUM OPINION

PER CURIAM

Appellees filed a motion to abate this appeal to supplement the record with certain

deposition testimony presented to the jury by video but not transcribed into the court reporter’s

record. Appellants Denise Steele, Jerry Scarbrough, and Melissa Victoria Deaton oppose the motion.

Appellants and appellees agreed at trial that the reporter would not transcribe

videotaped deposition testimony from Steele, Scarbrough, Deaton, and Dr. Sharon Barber

(Gary Purser, Sr.’s treating physician). The parties disagree about whether these witnesses’

depositions were provided to the court reporter Angela Ralston, but Ralston has notified us that

she has the excerpts of the deposition testimony provided to her at trial. Ralston states that she can

scan the excerpts given to her at trial and provide them to us as a supplemental volume of the

reporter’s record. Appellees contend that the missing testimony from Steele, Scarbrough, Deaton, and

Barber is relevant, the record should be supplemented with it, and the appellate rules allow such

supplementation. We agree. Texas Rule of Appellate Procedure 34.6(d) states that “[i]f anything

relevant is omitted from the reporter’s record, the trial court, appellate court, or any party may by

letter direct the court reporter to prepare, certify, and file in the appellate court a supplemental

reporter’s record containing the omitted items.” Tex. R. App. P. 34.6(d); see also Tex. R. App.

P. 34.6(e) (allowing for correction of inaccuracies in reporter’s record when parties’ dispute

about correction of reporter’s record arises after its filing in appellate court); In re Estate of

Arrendell, 213 S.W.3d 496, 500 (Tex. App.—Texarkana 2006, no pet.) (concluding that record may

be considered inaccurate “when a portion is omitted—either because not taken or because taken but

not transcribed”); Rogers v. Cigna Ins. Co., 881 S.W.2d 177, 180-81 (Tex. App.—Houston

[1st Dist.] 1994, no writ) (allowing record to be supplemented with deposition transcriptions that had

been produced in discovery).

We therefore grant appellees’ motion and abate this appeal for Ralston’s

supplementation of the reporter’s record with the excerpts of testimony from Steele, Scarbrough,

Deaton, and Barber. See Tex. R. App. P. 34.6(d). The supplemental volume shall be filed with this

Court no later than May 19, 2014. The appeal will be reinstated after the filing of the supplemental

reporter’s record.

Before Chief Justice Jones, Justices Rose and Goodwin

Abated

Filed: April 18, 2014