Marvin W. Hawkins v. Sentry Casualty Company

• Court: Court of Appeals of Texas
• Decided: November 7, 2024
• Docket: 10-22-00041-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00041-CV

MARVIN W. HAWKINS, Appellant v.

SENTRY CASUALTY COMPANY, Appellee

From the 414th District Court McLennan County, Texas Trial Court No. 2019-572-5

MEMORANDUM OPINION

Marvin Hawkins appeals from a judgment that affirmed the Texas Department of

Insurance-Division of Workers' Compensation (DWC) contested case hearing decision

and appeals panel order. Hawkins proceeded pro se both at trial and in this appeal.

Hawkins complains that the trial court erred by excluding evidence and that the evidence

was factually insufficient to support the trial court's findings. Because we find no

reversible error, we affirm the judgment of the trial court. The trial before the court started on September 21, 2021. During the trial on that

date, Hawkins provided the trial court with a compact disc which he asserted contained

records from a proceeding before the Social Security Administration. The CD was unable

to be opened because it was encrypted. Hawkins asked the trial court for additional time

to procure a readable copy of the records on the CD which the trial court granted and

continued the trial to October 8, 2021. The trial continued and was completed on October

8; however, no reporter's record was apparently made that day. 1 The trial court's docket

sheet entry reflects that, after the trial, it took the matter under advisement. The trial

court later entered its judgment and findings of fact and conclusions of law, which

contained the same findings as the order issued by the DWC appeals panel.

EXCLUSION OF EVIDENCE

In his first issue, Hawkins complains that the trial court erred by failing to admit

records he attempted to introduce into evidence during the bench trial that were from his

social security disability proceeding. Sentry contends that Hawkins has not preserved

this issue for appeal because there is no record showing that Hawkins offered the records

into evidence or sought a ruling on their admissibility.

The burden is on the party appealing from a judgment to ensure that a sufficient

1 This Court abated this appeal to the trial court to ascertain if Hawkins, who is indigent for purposes of this appeal, had requested the record and after he did, whether or not a reporter's record was made of the trial conducted on October 8, 2021. The district court judge, who was not the trial judge who conducted the trial, made a factfinding that no record was made of the trial on that date. Hawkins was given the opportunity to challenge that assertion with this Court, but he has not done so. Therefore, we will proceed and find that the trial court's determination that no record exists of the trial on October 8, 2021 is proper. Hawkins v. Sentry Cas. Co. Page 2 record is presented to show error requiring reversal, including requesting that the court

reporter record any proceedings. See Diaz v. Ellis Cnty., No. 10-09-00327-CV, 2010 Tex.

App. LEXIS 8666, 2010 WL 4243622, at *1 (Tex. App.—Waco Oct. 27, 2010, no pet.) (mem.

op.). With limited exceptions not applicable here, "[c]ourt reporters are not required to

transcribe court proceedings unless a party requests it . . . ." Mitchell v. MAP Res., Inc.,

649 S.W.3d 180, 191 n.10 (Tex. 2022) (citing TEX. GOV'T CODE ANN. § 52.046(a)); see also

Nabelek v. Dist. Att'y of Harris Cnty., 290 S.W.3d 222, 231 (Tex. App.—Houston [14th Dist.]

2005, pet. denied). The record does not reflect that Hawkins requested a reporter's record

of the proceedings. Without a reporter's record of the proceedings, Hawkins cannot

properly establish that the records were offered or that the trial court abused its discretion

by refusing to consider them as Hawkins alleges. Hawkins has not preserved this issue,

and therefore, we are unable to consider it. We overrule issue one.

FACTUAL SUFFICIENCY

In his second issue, Hawkins argues that the evidence was factually insufficient

because the trial court did not consider the other evidence he alleges was presented and

excluded. When an appellant intends to raise any challenge involving the evidence or

argument presented to a factfinder, a reporter's record is necessary. See Vernco Constr.,

Inc. v. Nelson, 460 S.W.3d 145, 150 (Tex. 2015). Because there is no reporter's record due

to Hawkins's failure to properly request that one be prepared, we must presume that the

trial court's judgment is supported by sufficient evidence. See id.; Englander Co. v.

Hawkins v. Sentry Cas. Co. Page 3 Kennedy, 428 S.W.2d 806, 807 (Tex. 1968) ("The burden is upon a party appealing from a

trial court judgment to show that the judgment is erroneous in order to obtain a reversal.

When the complaint is that the evidence is factually or legally insufficient to support vital

findings of fact, or that the evidence conclusively refutes vital findings, this burden

cannot be discharged in the absence of a complete or an agreed statement of facts.").

Accordingly, Hawkins's second issue is overruled. 2

CONCLUSION

Having found no reversible error, we affirm the judgment of the trial court.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed November 7, 2024 [CV06]

2 In the section of the appellant's brief labeled "Issues Presented," Hawkins lists five issues. Issues 3-5 relate to the evidence ostensibly introduced at trial. There is no argument or case authority in support of those issues presented, but, even if those issues were adequately briefed, the issues are not preserved due to the lack of a reporter's record like Hawkins's first two issues. Hawkins v. Sentry Cas. Co. Page 4