concurring.
I agree that the proper standard of appellate review is abuse of discretion. However, the court glosses over the fact that Mrs. Buller only brought forward a partial statement of facts.1 Mrs. Buller simply did not meet her burden of providing us with a sufficient record that shows that the trial court’s judgment requires reversal.2
Even if recast under the proper standard of abuse of discretion, Mrs. Buller’s complaint is still that the state of the evidence does not justify the trial court’s action. Generally, points dependent on the state of the evidence cannot be reviewed in the absence of a complete statement of facts. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683, 684 (1952). As we said in The Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.1968):
The burden is on a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal. When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact, or that the evidence conclusively refutes vital findings, this burden cannot be discharged in the absence of a complete or an agreed statement of facts.
Id. at 807. To this list I would add complaints that the trial court abused its discretion because of the state of the record. See, e.g., Ward v. Cornyn, 700 S.W.2d 281, 282 (Tex.App. — San Antonio 1985, orig. proceeding) (in absence of a statement of facts of discovery hearings, no abuse of discretion could be shown); Drozd v. McKinley, 670 S.W.2d 405, 406-07 (Tex.App. — Corpus Christi 1984) (no abuse of discretion in division of costs absent complete record), reversed on other grounds, 685 S.W.2d 7 (Tex.1985); Mercer v. Mercer, 503 S.W.2d 395, 397 (Tex.Civ.App. — Corpus Christi 1973, no writ) (no abuse of discretion shown in division of community property without complete record). The burden for showing harmful error because of the state of the record, whether on “abuse of discretion” or “no evidence” grounds, is the same. Generally, if an appellant files a partial statement of facts, the reviewing court must presume the omitted portions of the record would have been relevant to the determination of appellant’s evidentiary arguments. The Englander Co., 428 S.W.2d at 807.
The absence of a complete record is not always fatal to appellate review or review by original proceeding. Since the time of The Englander Co., we have amended the rules to allow for limited appeals. Tex.R. App.P. 53(d).3 By following this rule the presumption is the reverse of that in the usual appeal, in that the appellate court will assume that nothing in the record that was not brought forward is relevant to the determination of the appeal. Producer’s Const. Co. v. Muegge, 669 S.W.2d 717, 718 (Tex.1984). Also, a court may consider matters that are fundamentally erroneous even in the absence of a statement of facts. Lane, 243 S.W.2d at 684-85. Pure ques*229tions of law, not dependent on the evidence, may be reviewed without a statement of facts. Segrest v. Segrest, 649 S.W.2d 610 (Tex.1983). In a mandamus proceeding, we held that since it was undisputed that no evidence was presented at a discovery hearing, no statement of facts was necessary to determine the discovery questions. Barnes v. Whittington, 751 S.W.2d 493, 495 (Tex.1988) (orig. proceeding). The common thread in these exceptions is that the presence or absence of a statement of facts has no bearing on the resolution of the controlling issues. Since there was no attempt in the case at bar to limit the appeal under rule 53(d), the court of appeals should have presumed that the omitted portion of the statement of facts supported the trial court’s judgment. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990).
For these reasons, I concur in the result.
CORNYN, J., joins this concurring opinion..It is undisputed that the original trial hearing began on January 7, 1988, and was continued on February 8, 1988. Mrs. Buller’s statement of facts, however, omits entirely the January 7 proceedings. In footnote 2, the court states that this hearing was "recessed to allow Mrs. Buller and her counsel to gather documentation of expenditures.” Page 225. The court sidesteps the critical issue. Under the state of the record before us, we have to conclude that evidence was presented before the hearing was recessed. In its application for writ of error, petitioners asserts that evidence was presented. In her reply brief, Mrs. Buller does not dispute this statement. Thus, I think that it is erroneous for the court to speculate on this matter and to assume that if evidence was presented, that it was not essential to the issues on appeal.
. Tex.R.App.P. 50(d) provides in part:
Burden on Appellant. The burden is on the appellant, or other party seeking review, to see that a sufficient record is presented to show error requiring reversal.
. Texas Rule of Appellate Procedure 53(d) provides:
If appellant requests or prepares a partial statement of facts, he shall include in his request or proposal a statement of the points to be relied on and shall thereafter be limited to such points. If such statement is filed, there shall be a presumption on appeal that nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal. Any other party may designate additional portions of the evidence to be included in the statement of facts.