dissenting.
The question presented in the ease at bar is whether physical exhibits are part of the statement of facts or the transcript. When the court of appeals requested certain physical exhibits for inspection pursuant to Rule 51(d),1 four exhibits were found to be missing: a baggie of rocks and dirt (exhibit 4), wrapped sticks of gum (exhibit 5), a gum wrapper around three plastic packets (exhibit 6), and an evidence envelope containing exhibit 6 (exhibit 7). Holding that the exhibits were part of the statement of facts, the Court of Appeals reversed and remanded the case for a new trial under Rule 50(e). The majority agrees, concluding that such exhibits are part of the statement of facts, and hence, their absence requires automatic reversal under Rule 50(e).2 Because I believe that physical exhibits are not a part of the statement of facts, I disagree with the majority’s holding.
The majority of eases dealing with this issue were analyzed under Article 40.09, V.A.C.C.P., (repealed 1986). In Gibbs v. State, however, this Court stated that the eases decided under Article 40.09 continue to be helpful in the analysis of this point of error and that the principles discussed are still applicable to an analysis under Rule 50(e). 819 S.W.2d 821, 828 (Tex.Crim.App.1991).
Although I concede that exhibits are part of the appellate record,3 the question remains whether the exhibits are part of the statement of facts (the court reporter’s notes and records) or the transcript (the clerk’s records). In order to determine the correct placement of the exhibits in the record, I look to the Rules of Appellate Procedure and its Appendix.
Rule 50(a) states that the contents of the record “shall consist of the transcript and, where necessary to the appeal, the statement of facts.” Rule 51 addresses matters pertaining to the transcript. Rule 51(a) lists the items that are to be included in the transcript on appeal but does not mention the inclusion of exhibits. Rule 51(b) provides, however, that any party may file a written designation with the clerk specifying matters for inclusion in the transcript and that such designation must be specific. Rule 51(d) allows for the inclusion of original exhibits in the transcript “when the trial court is of the opinion that [the] original papers or exhibits should be inspected by the appellate court in lieu of copies ...” In this circumstance the trial court, or the appellate court on its own initiative, may order such exhibits to be sent for the appellate court’s inspection.
Rule 53 addresses matters pertaining to the statement of facts. Rule 53(a) orders the *301appellant to make a written request to the court reporter designating the portion of the evidence to be included in the statement of facts. There is no reference made to the automatic inclusion of exhibits.
Moreover, Rule 11(a)(4) provides that the duties of the court reporter shall include the filing of all exhibits with the clerk. Hence, after the completion of the trial, the actual exhibits become part of the clerk’s records, not the court reporter’s. It is the clerk’s duty to file the transcript. Rule 51(c).
This Court has also provided guidance concerning the transcript and the statement of facts in an Appendix for Criminal Cases to the Texas Rules of Appellate Procedure.4 Rule 1 of the Appendix gives the instructions for the format of both the transcript and the statement of facts on appeal and Rule 1(b)(4), (5), and (6) are helpful in the evaluation of the placement of exhibits. For example, the relevant part of Rule 1(b) reads as follows:
“... The court reporter shall also show in a separate table in the first volume of the statement of facts the page at which any exhibit or other document copied therein appears, and the pages at which it is identified (when an exhibit is identified by more than one witness, page references shall be made where each witness identified the exhibit.)” (Emphasis added.)
Likewise, Rule 1(b)(5) is directive for the placements of exhibits and states:
“(5) Unless ordered otherwise pursuant to Rule 51(d), neither 'physical evidence (gun, clothing, controlled substance, etc.) nor ordinarily an original exhibit is to be included in the record on appeal. Each item of physical evidence must be described alone on a separate piece of paper; it and a legible copy of other exhibits will appear respectively on a separate page of the statement of facts. However, when a legible copy of a photograph or any paper exhibit may not be made, the original exhibit shall be included in the record under order of the trial court made pursuant to Rule 51(d).” (Emphasis added.)
Rule 1(b)(6) further directs:
“Copies of exhibits received in each separate proceeding or hearing, including those descriptions of physical evidence, will be placed in numerical order at the end of the statement of facts of that proceeding or hearing, or in a separate volume if the exhibit material is voluminous.” (Emphasis added.)
The foregoing provisions lead me to conclude that original exhibits are not part of the statement of facts but are part of the transcript, if so designated by the trial or appellate court. Rule 51(d). Summary descriptions of physical exhibits and copies of other exhibits are part of the statement of facts. Appendix Rule 1(b)(6).
When any portion of the record is lost or destroyed, the first sentence of Rule 50(e) allows for substitution with a duplicate even if the appellant does not consent to the substitution. Harris v. State, 790 S.W.2d 568, 576 (Tex.Crim.App.1990). Therefore, if the missing portion of the record is the description of the physical exhibits at the end of the statement of facts, .the court reporter, upon request, should be allowed to reconstruct the summaries for purposes of the appeal. If the descriptions are contained elsewhere in the record but are not in the proper form, the appellate court should determine whether the failure to include the summaries of the exhibits hinders the court’s review of the case. If the missing descriptions in no way impede the review of the record, the alternate location of the descriptions should suffice. It would not be judicially economical to remand every case back to the trial court to have the court reporter insert the pages at the end of the statement of facts if there are sufficient descriptions located elsewhere.
As for the physical exhibits themselves, because they are not part of the statement of facts but are part of the transcript (if requested), loss of such exhibits does not produce an automatic reversal under Rule 50(e). I do not mean to suggest that a party could never obtain reversal based upon missing *302physical exhibits. If harm exists,5 the case should be reversed, so long as the exhibit was specifically identified in a timely filed written designation of matters to be included in the transcript. See Rule 51(b).
In the case at hand, the summary descriptions of the physical exhibits were not included in the statement of facts. There is an exhibit list located in the front of the statement of facts which gives a page reference for each exhibit admitted over the course of the proceedings, but that list does not appear to fully describe the physical exhibits in the ease and it does not include exhibit 7. Nevertheless, the descriptions could be reconstructed by the court reporter and do not mandate reversal.
Obviously, the physical exhibits themselves cannot be reconstructed. However, a reversal on account of those missing original exhibits would be proper only if appellant had specifically identified the exhibits in his designation of matters for inclusion in the transcript 6 and if he were harmed by their absence. I would reverse the Court of Appeals’ decision and remand the case for consideration of those two issues.
I respectfully dissent.
. All references to rules are to the Texas Rules of Appellate Procedure unless otherwise provided.
. Rule 50(e) provides:
"When the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the appellate court as in other cases. If the appellant has made a timely request for a statement of facts, but the court reporter’s notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts.”
. Durrough v. State, 693 S.W.2d 404, 405 (Tex.Crim.App.1985).
. The provisions in the appendix are a directive by the Court of Criminal Appeals pursuant to the provisions of Rules 51(c) and 53(h), T.R.A.P., and became effective simultaneously with the Texas Rules of Appellate Procedure on September 12, 1986.
. I express no opinion on the standard of harm applicable, or who must shoulder the burden of proof. Because my opinion is a dissent, I leave those difficult issues for another day.
. A designation of matters for inclusion in the transcript does not appear in the record before us, but whether such a designation was made is a determination that may be made by the Court of Appeals in the first instance.