Gomez v. State

• Decision Date: 17 August 1995
• Docket Number: No. 14-93-00537-CR,14-93-00537-CR
• Citation: 905 S.W.2d 735
• Parties: Tony Valdez GOMEZ, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 735

905 S.W.2d 735

Tony Valdez GOMEZ, Appellant, v. The STATE of Texas, Appellee.

No. 14-93-00537-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 17, 1995.

Rehearing Overruled Sept. 28, 1995.

Robert E. Hoskins, Galveston, for appellant.

B. Warren Goodson, Jr., Galveston, for appellees.

Before MURPHY, C.J., and ANDERSON and HUDSON, JJ.

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 exhibits 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 case, the error is subject to a harm analysis.

The courts of appeals in this state, including this Court, have been less than uniform in their approach to lost or destroyed exhibits. The Tenth Court of Appeals has specifically held that exhibits 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 denied); see also Shields v. State, 820 S.W.2d 831, 833 (Tex.App.--Waco 1991, no pet.) Moreover, the Hidalgo court found that when exhibits are lost, the appellant is entitled to a reversal of the judgment without demonstrating any harm and without giving any reason for his opposition to reconstruction and substitution of the exhibits. Hidalgo, 790 S.W.2d at 702-03. The Fifth Court of Appeals has also held that exhibits are part of the statement of facts, but the court softened its holding by concluding that the loss of exhibits 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 exhibits are part of the statement of facts, and that their loss may be the basis for reversal if the lower court first concludes the exhibits 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 exhibits 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 denied). Curiously, the Twelfth Court of Appeals has concluded that lost exhibits are not a ground for reversal if the exhibits are merely photographs. Diaz v. Deavers, 574 S.W.2d 602, 608 (Tex.Civ.App.--Tyler 1978, writ dism'd).

This Court has likewise delivered conflicting opinions regarding lost or destroyed exhibits. Recently, a panel of this Court held that exhibits 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 exhibits 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 this court, however, has held that exhibits 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 this 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 exhibits are part of the statement of facts stems, in part, from Rule 50(a) of the Texas Rules of Appellate Procedure which defines the content of the appellate record as consisting of a transcript and a statement of facts. Reasoning that exhibits are not part of the transcript, two courts have concluded that exhibits must necessarily be part of the statement of facts. Shields, 820 S.W.2d at 833; Owens-Illinois, Inc., 899 S.W.2d at 729. This rationale is further bolstered in Owens-Illinois by the court's conclusion that the statement of facts must encompass all of the evidence, and since exhibits are part of the evidence, they must necessarily be part of the statement of facts. While there can be no question that exhibits are part of the appellate record, ² nothing in Rule 50(a) suggests that exhibits are exclusively a component of the statement of facts. ³ The Texas Rules of Appellate Procedure refer to exhibits both in the context of being part of the transcript ⁴ and as part of the statement of facts. ⁵

If we were to hold, as some have, that exhibits are part of the court reporter's records, we would be obliged to reverse the trial court's judgment in every instance where one or more of the exhibits have been lost. Some exhibits, however, such as computer-generated records, business records, photographs, and certified photocopies of original public records can be flawlessly reconstructed with the utmost confidence. In many cases, the exhibits are of no value to the appellate court and have no impact upon the resolution of the appellant's points of error. It is a waste of judicial resources to hold that the loss of such exhibits must automatically result in a new trial.

We hold that exhibits are sui generis, and may not be neatly "pegged" as being solely part of the transcript or the statement of facts. When designated for inclusion, exhibits form part of the appellate record, but they are not entirely subsumed under the statement of facts. We do not hold that the loss of an exhibit will never result in a new trial. Occasionally an exhibit may be relevant to the determination of a point of error. The loss of such an exhibit, accompanied by the inability to reconstruct the same, must necessarily result in a new trial. Nevertheless, where no possibility exists that the exhibit will be of assistance to the appellate court, its loss should not result in a reversal of the trial court's judgment. Richards v. Suckle, 871 S.W.2d at 243. In this case, the latent fingerprints on the original food wrappers are of no assistance to us in resolving appellant's points of error because we are not qualified to interpret and compare latent fingerprints. We reiterate and adopt the holding in Richards v. Suckle where Justice Cannon, writing for court said: "We simply do not read Rule 50(e) to mean that in every instance where a part of the record has been lost that the aggrieved party is entitled to a new trial. If the portion of the record which is lost cannot change the outcome of the case, to remand the cause for a new trial would not be judicially economical."

Finally, appellant did not specifically designate the...