Opinion
No. 05-16-00963-CV
06-07-2017
DEBORAH HUBER, Appellant v. ZARA BLACK AGNEW, Appellee
On Appeal from the 44th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-02911
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Evans
Deborah Huber appeals from an adverse judgment after a jury trial in her personal injury action against Zara Black Agnew. In two issues, Huber generally complains about the legal and factual sufficiency of the evidence supporting the trial court's judgment, arguing the trial court should have granted a judgment notwithstanding the verdict or a new trial. We affirm.
This dispute arises out of injuries Huber alleges she sustained in an automobile accident after her vehicle was struck from behind by a vehicle operated by Agnew. Huber sued Agnew for negligence and the matter proceeded to a jury trial. The trial court rendered a take-nothing judgment on Huber's claims based on the jury's failure to find that any negligence by Agnew proximately caused the accident. Huber filed this appeal.
Before addressing the merits of this appeal, we must first discuss the state of the appellate record, particularly, the reporter's record. The reporter's record we have before us is entitled "Partial Reporter's Record" and contains only Agnew's testimony and the trial exhibits. The index of the reporter's record reflects that three witnesses testified at the trial, but Huber only requested Agnew's testimony be transcribed. In the index next to the names of the two other trial witnesses is the notation "not requested to be transcribed." No other portions of the trial proceedings were transcribed or are before us.
Rule 34.6(c) of the rules of appellate procedure sets forth the requirements a party must satisfy in order to appeal without a complete record. See TEX. R. APP. P. 34.6(c). If the appellant requests a partial reporter's record, she must also include in the request a statement of the points or issues to be presented on appeal and will be limited to those points or issues. TEX. R. APP. P. 34.6(c)(1). Other parties may then designate additional exhibits or testimony to be included. TEX. R. APP. P. 34.6(c)(2). We then presume the partial reporter's record designated by the parties constitutes the entire record for our review of the stated points or issues, including those points or issues challenging legal and factual sufficiency. TEX. R. APP. P. 34.6(c)(4). Failure to file a statement of points or issues, however, invokes the common law presumption that the omitted portions of the record support the trial court's findings and requires affirmance of the trial court's judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2003) (per curiam); W & F Transp. Inc. v. Wilhelm, 208 S.W.3d 32, 37-39 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
In this case, Huber did not file a complete record on appeal nor did she file a statement of the points or issues that she intended to present on appeal as required by rule 34.6(c) governing partial reporter's records. Because Huber is not entitled to the rule's presumption, we must presume that the omitted portions of the reporter's record are relevant and support the trial court's judgment. See $4,310 In U.S. Currency v. State, 133 S.W.3d 828, 829 (Tex. App.—Dallas 2004, no pet.). We resolve Huber's two issues against her.
We affirm the trial court's judgment.
/David W. Evans/
DAVID EVANS
JUSTICE 160963F.P05
JUDGMENT
On Appeal from the 44th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-15-02911
Opinion delivered by Justice Evans, Justices Bridges and Lang-Miers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Zara Black Agnew recover her costs of this appeal from appellant Deborah Huber. Judgment entered this 7th day of June, 2017.