holding an issue challenging an evidentiary ruling and sufficiency is multifarious
How later courts described this case
- holding an issue challenging an evidentiary ruling and sufficiency is multifarious
- “Appellant presents nothing for review in this point of error because his argument is multifarious.”
Written by the judges who cited it.
The opinion
CAMPBELL, Judge,
dissenting on appellant’s motion for rehearing.
There are two issues presented in this cause on rehearing: (1) whether a trial court may correct inaccuracies in an appellant record, pursuant to Tex.R.App.Pro. 55(a); (2) whether the Texas Rules of Appellate Procedure permit the trial court to make editorial comments about his intended action after the inaccuracies have been corrected.
Clearly the trial court can correct inaccuracies in the record pursuant to Rule 55(a), as such is contemplated by the very wording of the rule itself. Such was done in this case and I have no quarrel with this action. Just as clearly, however, I cannot conceive of the majority of an appellate court allowing a trial judge to “supplement” or “amend” an appellate record with subjective editorial comments concerning what he (the trial judge) “intended” to do at the time of trial. This “supplement” or “amendment,” occurring as it does in a post-submission, post-judgment proceeding, is nothing more than a sanction by this Court of a second bite-at-the-apple by the trial court.
It is absolutely incredible to me that a majority of this court can so far stretch the intended purpose of the appellate rules as to allow the trial court to effectively “retry” part of the case and effectuate a different result. This simply is not contemplated by Rule 55(a).
If Rule 55(a) is not applicable, what about Rule 55(b) or 55(c) — the only other possible procedural justification for the action taken by the majority today? Since I cannot say it any better, I offer the view of *319 the Dallas Court of Appeals in Guilder v. State, 794 S.W.2d 765 (Tex.App.-Dallas 1990):
“We recognize that Texas Rule of Appellate Procedure 55(b) and (c) grants this court wide discretion to supplement the transcript or statement of facts so as to include omitted matter, [citations omitted] However, such discretion should not be exercised, in the absence of some unusual circumstance, so as to permit new material to be filed after the appellate court has written its opinion and rendered its judgment. Such action would be contrary to the spirit and purpose of Rules 54(b) (setting forth the appellate timetable) and 50(d) (placing the burden on appellant to see that a sufficient record is presented to show error requiring reversal) and would interfere with the orderly administration of justice.” [citations omitted] (emphasis in original)
If Rules 55(a), (b), and (c) do not apply, what authority exists for allowing the illuminating editorial comments of the trial court in this “proceeding?” None, I submit.
To the setting of this dangerous precedent, I vigorously dissent.