Greenwood v. State

PETITION FOR DISCRETIONARY REVIEW

OPINION

BENAVIDES, Judge.

This is an appeal from a misdemean- or assault conviction. Appellant seeks to set aside his conviction based upon the claim that the evidence presented was insufficient to support a conviction. We granted review to determine whether a defendant can bring a challenge to the legal sufficiency of the evidence to support a conviction upon a partial statement of facts. Answering the question negatively, we affirm.

A jury convicted Appellant of misdemeanor assault and the court assessed punishment at thirty days confinement, probated for one year, and a two hundred dollar fine. The record reflects that Appellant requested only a portion of the record below, limited to the transcription of one witness’ testimony from the motion for new trial hearing. In his appeal to the Houston Court of Appeals for the Fourteenth District, Appellant raised numerous points of error, including the sufficiency of the evidence to sustain the conviction. The court of appeals affirmed the conviction.1

Under Rule 53(d) of the Texas Rules of Appellate Procedure, a defendant may bring a limited appeal in a criminal case. Appellant argues that because he complied with Rule 53(d), he was entitled to a presumption that all evidence not included in the record was irrelevant to the disposition of the case. We disagree. Rule 53(d) provides:

*661If 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.

The presumption of Rule 53(d) does not apply to sufficiency challenges. This is because the burden rests on the “appellant or other party seeking review, to show that a sufficient record is presented to show error requiring reversal.”2 In its sufficiency review, a reviewing court bears the responsibility of reviewing the entire record in a light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.3 This constitutional mandate is predicated upon the ability of the reviewing court to consider all the relevant evidence in a given case. The presentation of only a partial record makes such a consideration impossible. Because the reviewing court must consider all relevant record evidence and Rule- 50(d) requires that the complaining party present sufficient portions of the record to demonstrate error of a reversible nature, the entire record of the trial before the fact finder is necessary to show error when an appellant raises a sufficiency point of error.4 Thus, Appellant, by limiting his record, did not meet his burden under Rule 50(d).

We also note that other courts have considered this question and similarly determined that a sufficiency challenge cannot be raised with only a partial record. In Englander Co. v. Kennedy,5 the Texas Supreme Court concluded that sufficiency challenges may only be considered upon the presentation of a complete or agreed statement of facts.6 Following this rationale, the Houston Court of Appeals for the First District interpreted Rule 53(d) and also refused to consider a sufficiency challenge brought with only a partial statement of facts.7 The court reasoned that to require the appellee to bring up a complete record so as not to suffer the presumption of Rule 53(d) “would unfairly shift the burden of proof in the appeal to the appel-lee.”8 Likewise, the Dallas Court of Appeals addressed this issue and concluded that where a complaining party attempts to limit an appeal under Rule 53(d) and submits only a partial statement of facts, “he has failed to preserve any of his contentions concerning the sufficiency of the evidence to sustain his conviction.”9

The holding of the lower court in this case is not only consistent with the previous treatment of other courts on this question, but it also correctly recognizes the purpose of Rule 53(d). Rule 53(d) does not obviate a defendant’s evidentiary burden on appeal but simply allows him to designate lesser portions of the record if he desires as long as, by that designation, he can meet his burden under Rule 50(d). We hold that without an agreed or complete statement of facts, an appellate court cannot consider the “facts” of the case to determine whether or not sufficient • evidence exists to support the conviction. Since Appellant, by his reliance on a partial record, cannot meet his burden under Rule *66250(d), he is not entitled to the presumption under Rule 53(d).

Accordingly, the judgment of the court of appeals is AFFIRMED.

. Greenwood, v. State, 802 S.W.2d 10, 13 (Tex.App. — Houston [14th Dist.] 1990).

. Tex.R.App.P. 50(d) (Vernon 1990); see also Schafer v. Conner, 805 S.W.2d 554 (Tex.App.— Beaumont 1991, writ denied), Alford v. Whaley, 794 S.W.2d 920 (Tex.App. — Houston [1st Dist.] 1990, no writ).

. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

. O’Neal v. State, 811 S.W.2d 219, 221 (Tex.App. — Dallas, 1991, pet. granted).

. 428 S.W.2d 806 (Tex.1968) (per curiam).

. Id. at 807.

. Tapiador v. North American Lloyds of Texas, 772 S.W.2d 954 (Tex.App. — Houston [1st Dist.] 1989, no writ).

. Id. at 955 (citing Galvin v. Gulf Oil Corp., 759 S.W.2d 167, 173 (Tex.App. — Dallas 1988, writ denied)).

. O’Neal, 811 S.W.2d at 221.