Rule 34: Appellate Record
34.1. Contents
The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record. Even if more than one notice of appeal is filed, there should be only one appellate record in a case.
34.2. Agreed Record
By written stipulation filed with the trial court clerk, the parties may agree on the contents of the appellate record. An agreed record will be presumed to contain all evidence and filings relevant to the appeal. To request matter to be included in the agreed record, the parties must comply with the procedures in Rules 34.5 and 34.6.
34.3. Agreed Statement of the Case
In lieu of a reporter’s record, the parties may agree on a brief statement of the case. The statement must be filed with the trial court clerk and included in the appellate record.
34.4. Form.
The Supreme Court and Court of Criminal Appeals will prescribe the form of the appellate record.
34.5. Clerk’s Record
(a) Contents. Unless the parties designate the filings in the appellate record by agreement under Rule 34.2, the record must include copies of the following:
(1) in civil cases, all pleadings on which the trial was held;
(2) in criminal cases, the indictment or information, any special plea or defense motion that was presented to the court and overruled, any written waiver, any written stipulation, and, in cases in which a plea of guilty or nolo contendere has been entered, any documents executed for the plea;
(3) the court's docket sheet;
(4) the court's charge and the jury's verdict, or the court's findings of fact and conclusions of law;
(5) the court's judgment or other order that is being appealed;
(6) any request for findings of fact and conclusions of law, any post-judgment motion, and the court's order on the motion;
(7) the notice of appeal;
(8) any formal bill of exception;
(9) any request for a reporter’s record, including any statement of points or issues under Rule 34.6(c);
(10) any request for preparation of the clerk’s record;
(11) in civil cases, a certified bill of costs, including the cost of preparing the clerk’s record, showing credits for payments made;
(12) in criminal cases, the trial court's certification of the defendant's right of appeal under Rule 25.2; and
(13) subject to (b), any filing that a party designates to have included in the record.
(b) Request for Additional Items.
(1) Time for Request. At any time before the clerk’s record is prepared, any party may file with the trial court clerk a written designation specifying items to be included in the record.
(2) Request Must be Specific. A party requesting that an item be included in the clerk’s record must specifically describe the item so that the clerk can readily identify it. The clerk will disregard a general designation, such as one for ―all papers filed in the case.‖
(3) Requesting Unnecessary Items. In a civil case, if a party requests that more items than necessary be included in the clerk’s record or any supplement, the appellate court may — regardless of the appeal's outcome — require that party to pay the costs for the preparation of the unnecessary portion.
(4) Failure to Timely Request. An appellate court must not refuse to file the clerk’s record or a supplemental clerk’s record because of a failure to timely request items to be included in the clerk’s record.
(c) Supplementation.
(1) If a relevant item has been omitted from the clerk’s record, the trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item.
(2) If the appellate court in a criminal case orders the trial court to prepare and file findings of fact and conclusions of law as required by law, or certification of the defendant's right of appeal as required by these rules, the trial court clerk must prepare, certify, and file in the appellate court a supplemental clerk’s record containing those findings and conclusions.
(3) Any supplemental clerk’s record will be part of the appellate record.
(d) Defects or Inaccuracies. If the clerk’s record is defective or inaccurate, the appellate clerk must inform the trial court clerk of the defect or inaccuracy and instruct the clerk to make the correction.
(e) Clerk’s Record Lost or Destroyed. If a filing designated for inclusion in the clerk’s record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk’s record or a supplement. If the parties cannot agree, the trial court must — on any party's motion or at the appellate court's request — determine what constitutes an accurate copy of the missing item and order it to be included in the clerk’s record or a supplement.
(f) Original Documents. If the trial court determines that original documents filed with the trial court clerk should be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an order for the safekeeping, transportation, and return of those original documents. The order must list the original documents and briefly describe them. All the documents must be arranged in their listed sequence and bound firmly together. On any party's motion or its own initiative, the appellate court may direct the trial court clerk to send it any original document.
(g) Additional Copies of Clerk’s Record in Criminal Cases. In a criminal case, the clerk’s record must be made in duplicate, and in a case in which the death penalty was assessed, in triplicate. The trial court clerk must retain the copy or copies for the parties to use with the court’s permission.
(h) Clerk May Consult With Parties. The clerk may consult with the parties concerning the contents of the clerk’s record.
34.6. Reporter’s Record
(a) Contents.
(1) Stenographic Recording. If the proceedings were stenographically recorded, the reporter’s record consists of the court reporter’s transcription of so much of the proceedings, and any of the exhibits, that the parties to the appeal designate.
(2) Electronic Recording. If the proceedings were electronically recorded, the reporter’s record consists of certified copies of all tapes or other audio-storage devices on which the proceedings were recorded, any of the exhibits that the parties to the appeal designate, and certified copies of the logs prepared by the court recorder under Rule 13.2.
(b) Request for preparation.
(1) Request to Court Reporter. At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter’s record. The request must designate the exhibits to be included. A request to the court reporter — but not the court recorder — must also designate the portions of the proceedings to be included.
(2) Filing. The appellant must file a copy of the request with the trial court clerk.
(3) Failure to Timely Request. An appellate court must not refuse to file a reporter’s record or a supplemental reporter’s record because of a failure to timely request it.
(c) Partial Reporter’s Record.
(1) Effect on Appellate Points or Issues. If the appellant requests a partial reporter’s record, the appellant must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues.
(2) Other Parties May Designate Additions. Any other party may designate additional exhibits and portions of the testimony to be included in the reporter’s record.
(3) Costs; Requesting Unnecessary Matter. Additions requested by another party must be included in the reporter’s record at the appellant's cost. But if the trial court finds that all or part of the designated additions are unnecessary to the appeal, the trial court may order the other party to pay the costs for the preparation of the unnecessary additions. This paragraph does not affect the appellate court's power to tax costs differently.
(4) Presumptions. The appellate court must presume that the partial reporter’s record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues. This presumption applies even if the statement includes a point or issue complaining of the legal or factual insufficiency of the evidence to support a specific factual finding identified in that point or issue.
(5) Criminal Cases. In a criminal case, if the statement contains a point complaining that the evidence is insufficient to support a finding of guilt, the record must include all the evidence admitted at the trial on the issue of guilt or innocence and punishment.
(d) Supplementation. If anything relevant is omitted from the reporter’s record, the trial court, the appellate court, or any party may by letter direct the official court reporter to prepare, certify, and file in the appellate court a supplemental reporter’s record containing the omitted items. Any supplemental reporter’s record is part of the appellate record.
(e) Inaccuracies in the Reporter’s Record.
(1) Correction of Inaccuracies by Agreement. The parties may agree to correct an inaccuracy in the reporter’s record, including an exhibit, without the court reporter's recertification.
(2) Correction of Inaccuracies by Trial Court. If the parties cannot agree on whether or how to correct the reporter's record so that the text accurately discloses what occurred in the trial court and the exhibits are accurate, the trial court must – after notice and hearing – settle the dispute. If the court finds any inaccuracy, it must order the court reporter to conform the reporter’s record (including text and any exhibits) to what occurred in the trial court, and to file certified corrections in the appellate court.
(3) Correction After Filing in Appellate Court. If the dispute arises after the reporter’s record has been filed in the appellate court, that court may submit the dispute to the trial court for resolution. The trial court must then proceed as under subparagraph (e)(2).
(f) Reporter’s Record Lost or Destroyed. An appellant is entitled to a new trial under the following circumstances:
(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or – if the proceedings were electronically recorded – a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed exhibit, is necessary to the appeal's resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter's record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
(g) Original Exhibits.
(1) Reporter May Use in Preparing Reporter’s Record. At the court reporter's request, the trial court clerk must give all original exhibits to the reporter for use in preparing the reporter’s record. Unless ordered to include original exhibits in the reporter’s record, the court reporter must return the original exhibits to the clerk after copying them for inclusion in the reporter’s record. If someone other than the trial court clerk possesses an original exhibit, either the trial court or the appellate court may order that person to deliver the exhibit to the trial court clerk.
(2) Use of Original Exhibits by Appellate Court. If the trial court determines that original exhibits should be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an order for the safekeeping, transportation, and return of those exhibits. The order must list the exhibits and briefly describe them. To the extent practicable, all the exhibits must be arranged in their listed order and bound firmly together before being sent to the appellate clerk. On any party's motion or its own initiative, the appellate court may direct the trial court clerk to send it any original exhibit.
(h) Additional Copies of Reporter’s Record in Criminal Cases. In a criminal case in which a party requests a reporter’s record, the court reporter must prepare a duplicate of the reporter’s record and file it with the trial court clerk. In a case where the death penalty was assessed, the court reporter must prepare two duplicates of the reporter’s record.
(i) Supreme Court and Court of Criminal Appeals May Set Fee. From time to time, the Supreme Court and the Court of Criminal Appeals may set the fee that the court reporters may charge for preparing the reporter’s record.
Comments
Comment to 1997 change: Former Rules 50, 51 and 53 are merged. Clerk’s record is substituted for transcript, and reporter’s record is substituted for statement of facts throughout the rules. In subdivision 34.2, the requisites of an agreed record are more clearly stated. Former Rule 50(d), regarding the burden to file a complete record, is repealed. Subdivision 34.4 is from former Rules 51(c) and 53(h). Former Rule 50(f), regarding a violation of the rules, is repealed. Subparagraph 34.5(b)(3) allows the appellate court to tax costs against a party for requiring unnecessary items to be included in the clerk’s record. Paragraph 34.5(c) is new and provides for supplementation of the clerk’s record. The provisions of paragraph 34.5(d) are from former Rule 55(b). The provisions of paragraph 34.5(e) are from former Rule 50(e). Paragraph 34.5(h) specifically allows the clerk to consult with the parties to determine the contents of the clerk’s record. Paragraph 34.6(a), defining the reporter’s record, is new. Former Rules 53(b) (Other Requests), (d) (Partial Statement), and (e) (Unnecessary Portions) are merged into paragraph 34.6(c). Paragraph 34.6(d) is new. Paragraph 34.6(e) is from former Rule 55. Paragraph 34.6(f) is from former Rule 50(d). The provisions of former Rules 53(f) (Certification by Court Reporter) and (h) (Form) are moved to the Order of the Supreme Court and the Court of Criminal Appeals on the preparation of the record. Former Rule 53(I) (Narrative Statement) is repealed. The provisions of former Rule 53(j) (Free Statement of Facts) are moved to Rule 20. Former Rule 53(k) (Duty of Appellant to File) is repealed; it is now the duty of the court reporter to file the reporter’s record. Paragraph 34.6(g) is from former Rule 51(d). Former Rule 53(g) is now paragraph 34.6(I). Former Rule 53(l) is now paragraph 34.6(h). The need for two duplicate records in a death penalty case was created by the habeas corpus provision in Code of Criminal Procedure article 11.071.
Comment to 2002 change: Rule 34.5(a) is amended to require that the record in a criminal case include the certification of defendant's right of appeal; see Rule 25.2(d). Rule 34.5(c) is amended to make clear that an appellate court may order the trial court to make such a certification for inclusion in a supplemental clerk's record. Subparagraphs 34.6(e) and (f) are amended to clarify the application to exhibits. The language in subparagraph (e)(2) referring to the text of the record is simplified without substantive change. Subparagraph (e)(3) incorporates the procedures specified in (e)(2). The language in subparagraph (f) is clarified to require agreement only as to the portion of the text at issue, and to provide that the trial court may determine that a copy of an exhibit should be used even if the parties cannot agree.