appellant must show harm to obtain reversal under Rule 55(b)
How later courts described this case
- appellant must show harm to obtain reversal under Rule 55(b)
Written by the judges who cited it.
The opinion
BURGESS, Justice,
dissenting.
I respectfully dissent to the disposition of point of error number one. The majority states “From our examination of the record, we perceive the same was correct and proper.” What the majority does not state is that only two volumes of the statement of facts have been certified by the official court reporter while two other volumes contain no certification by an official court reporter. Rule 53(f) Certification by Court Reporter, Texas Rules of Appellate Procedure states: “The statement of facts shall be in sufficient form to be filed in the appellate court when it is certified by the official court reporter (emphasis added).”
The rule as stated in Rogers v. Rogers, 561 S.W.2d 172 (Tex.1978) is: “if an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be preserved in no other way.” Furthermore, appellant is not required to seek out any agreed statement of facts to avail himself of the rule. Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23 (Tex.1987); Vickers v. Sunrise Lumber Co., 759 S.W.2d 747 (Tex.App.—El Paso 1988, writ denied).
For this court to sanction the filing of a statement of facts by an uncertified court reporter would potentially undermine the court reporter certification requirements in TEX.G0V’T CODE ANN. secs. 52.021-.033 (Vernon 1988 & Supp.1990), and the official court reporter appointment procedures in TEX.GOV’T CODE ANN. secs. 52.041-.048 (Vernon 1988 & Supp.1990).
I will be the first to concede that a reversal and remand is a harsh result especially since neither party nor the trial judge was at fault. However, this is generally the case in improper, incomplete or no record cases. The substitute court report *828 er had apparently misrepresented her certification to whoever approved her employment as the “roving” court reporter. Still, the absence of fault and the harshness of the result does not make the court reporter certified nor does it make the record any more proper. In terms of the rules and statutes, since she was not a certified court reporter, she was no more than a bystander. See Soto v. State, 671 S.W.2d 43 (Tex.Crim.App.1984) where the court reversed and remanded a misdemeanor assault case when the record was prepared by a deputy county clerk rather than a certified court reporter.
It is with no pleasure that I suggest a ease, which has been fully and fairly tried to a jury, be reversed because of noncompliance with a “technical” rule. However, the integrity of the system dictates that appellate records meet minimum requirements, one of which is a statement of facts certified by an official court reporter. One of the prerequisites of being an official court reporter is to be certified. Since part of the statement of facts in this case does not meet these requirements, I would reverse and remand for a new trial. Since the majority does not, I respectfully dissent.