Sheffield v. State

Court of Appeals of Texas

Sheffield v. State

777 S.W.2d 743, 1989 Tex. App. LEXIS 2636, 1989 WL 126340

CourtCourt of Appeals of Texas

DecidedAugust 30, 1989

Docket09-89-033-CR

StatusPublished

Cited by9 cases

This text of 777 S.W.2d 743 (Sheffield 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.

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Sheffield v. State, 777 S.W.2d 743, 1989 Tex. App. LEXIS 2636, 1989 WL 126340 (Tex. Ct. App. 1989).

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OPINION

BURGESS, Justice.

A jury convicted appellant of aggravated robbery and assessed his punishment at ten years’ confinement in the Texas Department of Corrections. Appellant urges a single point of error.

Appellant argues he has been denied a complete record on appeal, thereby a rever[744]*744sal is required. Through a mix-up, a deputy district clerk returned state’s exhibits one through four and defendant’s exhibits one through eleven to an investigator for the district attorney who destroyed the exhibits. The trial court ordered the parties to attempt to reconstruct the evidence, but ultimately reached the conclusion that “such action is impossible” and “the net effect of these errors is that all the trial evidence has been destroyed and cannot be reconstructed.” It is curious that the exhibits could not have been reconstructed since they were photographs. We, however, cannot go behind the finding and conclusion of the trial judge who is in a superi- or position to make such findings.

Had a reconstruction been possible, there would be no error. See Harris v. State, — S.W.2d - No. 69,366 (Tex.Crim.App. June 28, 1989) (not yet reported). However, when an appellant is deprived of a portion of the statement of facts, then a reversal is required irrespective of harm. Dunn v. State, 733 S.W.2d 212 (Tex.Crim.App.1987). Exhibits are part of the appellate record. Durrough v. State, 693 S.W.2d 404 (Tex.Crim.App.1985). The record, therefore is incomplete, and a reversal required. The judgment is reversed and remanded.

REVERSED AND REMANDED.

BROOKSHIRE, J., dissents and files an opinion.

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OPINION

BURGESS, Justice.

A jury convicted appellant of aggravated robbery and assessed his punishment at ten years’ confinement in the Texas Department of Corrections. Appellant urges a single point of error.

Appellant argues he has been denied a complete record on appeal, thereby a rever[744]*744sal is required. Through a mix-up, a deputy district clerk returned state’s exhibits one through four and defendant’s exhibits one through eleven to an investigator for the district attorney who destroyed the exhibits. The trial court ordered the parties to attempt to reconstruct the evidence, but ultimately reached the conclusion that “such action is impossible” and “the net effect of these errors is that all the trial evidence has been destroyed and cannot be reconstructed.” It is curious that the exhibits could not have been reconstructed since they were photographs. We, however, cannot go behind the finding and conclusion of the trial judge who is in a superi- or position to make such findings.

Had a reconstruction been possible, there would be no error. See Harris v. State, — S.W.2d - No. 69,366 (Tex.Crim.App. June 28, 1989) (not yet reported). However, when an appellant is deprived of a portion of the statement of facts, then a reversal is required irrespective of harm. Dunn v. State, 733 S.W.2d 212 (Tex.Crim.App.1987). Exhibits are part of the appellate record. Durrough v. State, 693 S.W.2d 404 (Tex.Crim.App.1985). The record, therefore is incomplete, and a reversal required. The judgment is reversed and remanded.

REVERSED AND REMANDED.

BROOKSHIRE, J., dissents and files an opinion.

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777 S.W.2d 743, 1989 Tex. App. LEXIS 2636, 1989 WL 126340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheffield-v-state-texapp-1989.

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