concurring and dissenting.
I agree with the opinion of the majority that appellant is entitled to a new trial because a key piece of evidence — Exhibit 6 (a gum wrapper) — was somehow lost, and the court of appeals found it was unable to determine without that evidence “whether the jury could find beyond a reasonable doubt that two gum wrappers were from the same pack of gum.” Melendez v. State, 902 S.W.2d 28, 29 (Tex.App.-Houston [1st Dist.] 1995). However, I must respectfully disagree with the opinion of the majority that exhibits at trial are part of the statement of facts and that where an exhibit has been lost or destroyed through no fault of the appellant, the appellant is entitled, under Tex.R.App.Proc. 50(e), to a new trial unless the parties agree on a statement of facts.1
First, it must be determined if physical exhibits fall under the category of “court reporter’s notes and records” so that if they are lost through no fault of appellant’s he is entitled to a new trial under TRAP 50(e) without any showing of harm to appellant, provided he made a timely request for a statement of facts. See Culton v. State, 852 S.W.2d 512 (Tex.Crim.App.1993). There is certainly no question that exhibits are part of the appellate record. Durrough v. State, 693 S.W.2d 404 (Tex.Crim.App.1985). However, it is not clear whether exhibits are part of the court reporter’s “notes and records” and, therefore, part of the statement of facts. The Fourteenth Court of Appeals concluded recently that exhibits could not be neatly characterized as being solely part of the transcript or the statement of facts. As such, the loss of an exhibit would not necessarily require a new trial. Gomez v. State, 905 S.W.2d 735 (Tex.App.-Houston [14th Dist.] 1995).
While there can be no question that exhibits are part of the record, nothing in Rule 50(a) suggests that exhibits are exclusively a component of the Statement of Facts.
If we were to hold, as some have, that exhibits are part of the court reporter’s records, we would be obliged to reverse the trial court’s judgment in every instance where one or more of the exhibits have been lost. Some exhibits, however, such as computer-generated records, business records, photographs, and certified photocopies of original public records can be flawlessly reconstructed with the utmost confidence. In many cases, the exhibits are of no value to the appellate court and have no impact upon the resolution of the appellant’s points of error. It is a waste of judicial resources to hold that the loss of such exhibits must automatically result in a new trial.
Gomez, supra, at 738, 739. T.R.A.P. Rule 50(a) defines the contents of the transcript on appeal; no reference is made to exhibits in Rule 50(a). Yet, nothing in the Rules of Appellate Procedure states exhibits are part of the Statement of Facts. Rule 50(e) mandates automatic reversal where the court reporter’s notes and records have been lost through no fault of an appellant who has made a timely request for the Statement of Facts; Rule 50(e) does not mandate reversal for loss of a physical exhibit, which, in my opinion, cannot, by a reasonable interpretation of the phrase, “reporter’s notes and records,” be regarded as such. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).
It is evident the intent of T.RAP. Rule 50 is to provide an appellant with a complete record of his trial so that he can exercise his right to a meaningful appeal, provided, of course, he complies with the procedural requirements of Rules 50 and 51. Should an exhibit be missing or otherwise unavailable through no fault of the appellant, error must be presumed.
However, if the State demonstrates, to the satisfaction of the reviewing court, beyond a reasonable doubt, the missing exhibits are of no value to the reviewing court and have no impact on the resolution of the appellant’s points of error, then reversible error is not present. Tex.R.App.Proc. 81(b)(2); Harris *300v. State, 790 S.W.2d 568 (Tex.Crim.App.1989).
In the present case, the court of appeals found the missing exhibit to be crucial to its determination as to appellant’s second ground for review: the evidence is insufficient to sustain his conviction for possession with intent to deliver a controlled substance, namely cocaine, beyond a reasonable doubt. The court of appeals further found “without Exhibit Six this Court cannot determine what the jury saw.” Melendez, supra, at 30. The court of appeals found, in effect, the lack of Exhibit Six to constitute harmful error and the State, in its briefs in support of its petition for discretionary review, does not provide argument sufficient to persuade me that the error was harmless beyond a reasonable doubt, or that the court of appeals’ finding was erroneous.
Accordingly, I concur in the result but respectfully dissent to the reasoning of the majority opinion.
. This Court granted review to determine whether physical exhibits are part of the statement of facts, and whether appellant was therefore end-tied to a new trial under Rule 50(e) because an exhibit was missing or lost through no fault of appellant.