Appeals 101: The Appellate Record and Offers of Proof
When thinking about “creating a record” and “preserving issues for appeal,” it helps if a trial attorney understands a bit about the appellate process and why trial attorneys need to get things in “the record.”
First, what is “the record?” In an appeal, the record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record. Tex. R. App. P. 34.1.
The clerk’s record is made up of all the documents that were actually filed in the trial court. See Tex. R. App. P. 34.5. So, unless emails between the parties and the court coordinator were added to the record through a filing or by the judge’s order or policy, those emails are likely not part of the record. The court’s docket or register of actions will list all the documents that the court has in its record.
The reporter’s record is the compilation of transcripts of hearings and final trial. See Tex. R. App. P. 34.6. The reporter’s record includes all the admitted exhibits and those documents offered as offers of proof. The reporter’s record will not include excluded evidence unless an offer of proof was made.
Side note: in a transcript, there is no true indication of the passage of time from a reader’s perspective. I have seen in records attorneys saying, “let the record show that the witness is [doing something not relevant to the trial].” My only guess is that the attorney is trying to fill an awkward silence. But, until that comment was made, the reader had no idea there might have been an awkward silence. Occasionally, it could be helpful to have a “for the record, the witness is crying.” But that would only assist in making sense of odd comments such as “do you need a tissue?” However, because the trial judge (or jury) is the sole judge of the credibility of the witnesses, the fact that a witness is crying will likely have no legal impact on an appeal.
After filing a timely notice of appeal, the appellant will need to ask the trial court clerk and trial court reporter to put together the records and file them in the court of appeals. Tex. R. App. P. 35.3. The appellant could ask for everything that happened in the entire case; however, there is a cost per page for each, so an appellant may not want to include the whole file. Additionally, if there were filings that were not relevant to the issues on appeal, an appellant should not include them because those extra documents just add to the number of things the court of appeals has to review before making a decision on the case. So, typically, “the record” does not include the entire case file but only those things the appellant decided were important to include. And again, if a document was not actually made a part of the record in the first place, asking for it to be included after filing a notice of appeal will not magically make the extraneous document part of the record.
After the record has been filed, the deadline for the appellant’s brief will be set. Tex. R. App. P. 38.6. An appellant’s brief must include the following in an appendix: (1) the challenged judgment; (2) the jury charge and verdict or any findings of fact; and (3) the text of any rules or statutes that are central to the argument. Tex. R. App. P. 38.1. The judgment, charge, verdict, and findings should already be part of the clerk’s record; they are only being attached as a convenience to the court (and because the Rules require it). While an appellant can attach other excerpts from the record to the brief if it will be helpful to the judges, an appellant cannot attach anything outside the record. E.g., In re B.H., No. 02-15-00155-CV, 2015 WL 5893626, at *4 (Tex. App.—Fort Worth 2015, no pet.) (mem. op.). Attaching things to a brief does not make it part of the record. In fact, the appellate court is not permitted to consider anything in the appendix (other than legal authority) that is not part of the record. See id.
After all the briefing is done, the case will be assigned to a three-judge panel, and a submission date will be set. If no party requested oral argument, and if the court agrees that oral argument is unnecessary, the appeal will be decided by submission on the briefs alone on the specified date. See Tex. R. App. P. 39.1.
On the submission date, the three-judge panel—and their staff attorneys and clerks—will begin reviewing the record and the briefs, and they will do any research they believe necessary. On very rare occasions, the panel may decide that additional records from the trial court are necessary to reach a decision, and the panel may issue an order to the trial court clerk to file a particular order or other filing in a supplemental clerk’s record. The panel may even order the trial judge to issue findings where none had been previously issued. Typically, though, if the appellate record is missing a transcript of an evidentiary hearing, the appellate court will presume that the evidence presented at that hearing was sufficient to support the trial court’s decision. See e.g., Willingham v. Willingham, No. 02-22-00398-CV, 2023 WL 4501832, at *2 (Tex. App.—Fort Worth 2023, no pet. h.) (mem. op.).
Generally, the appellate court must limit its decision to what the trial court judge knew on the date of judgment. This concept serves the basis of many of the Rules of Civil and Appellate Procedure and Rules of Evidence. See e.g., Tex. R. App P. 33.1(a) (to preserve appellate complaint party must raise timely objection and receive ruling). Neither the trial court judge nor the appellate court panel can read the trial lawyer’s mind or make inferences about what someone might have said or intended to offer at trial. The panel must make a decision based on what is actually within the record.
Sometimes, the absence of something can constitute reversible error. For example, in the appeal of a default family-law judgment, if no record was made, that failure to make a record constitutes reversible error. See e.g., Perez v. Mejia, No. 04-19-00867-CV, 2020 WL 5647050, at *1 (Tex. App.—San Antonio 2020, no pet.) (mem. op.).
Further, for most issues, it is insufficient to merely show that the trial court made an error. The appellant must also show that the error resulted in harm. Tex. R. App. P. 44.1(a).
Texas Rules of Appellate Procedure 33.1 and 44.1 are the primary reasons why trial attorneys need to “create a record” and “preserve error.” Typically, an appellant cannot jump straight to the appellate court and cry foul unless he or she first made a complaint to the trial court judge. See Tex. R. App. P. 33.1. Thus, “the record” must show that the appellant brought the complaint to the trial court’s attention, whether in the form of a pleading (clerk’s record) or during a hearing or trial (reporter’s record). Additionally, “the record” must show that the alleged error caused harm. See Tex. R. App. P. 44.1. It is not enough to simply say that the trial court erred in not allowing a particular witness to testify or in not allowing certain documents to be entered into evidence. Without knowing the nature and content of the excluded evidence, the appellate court cannot determine whether there was harm, and without evidence of harm, the panel cannot reverse the complained-of judgment. E.g., In re Marriage of Rangel and Tovias-Rangel, 580 S.W.3d 675, 681–82 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
Although there may be some attorneys out there who can keep all the Rules in their head during trial and be able to remember all the preservation rules in the heat of trial, most of us are human and need to prepare ahead of time. If there are critical legal issues the trial judge needs to understand, a short bench brief with the requested relief can show that the issue was timely brought to court’s attention. Additionally, the brief could be offered during a hearing or simply referred to while making a short objection to save time during the hearing.
When preparing witnesses and evidence for trial, in addition to thinking through the potential objections and how to respond to those objections, have a plan ready for what happens if the other side’s objections are sustained.
If a witness is excluded, the proponent has the right to present an offer of proof via question and answer with the witness on the stand, but in the interest of time, some trial judges might not permit that, so a backup plan should be ready to go. An offer of proof for a witness’s testimony could be simply explaining on the record what the witness intended to discuss, or a witness affidavit could be offered as an offer of proof. If the opposing party objects to that affidavit as being hearsay, explain that the affidavit is not being offered as evidence but merely for “the record” as an offer of proof for the appellate court. The trial court must permit offers of proof upon the exclusion of evidence. Tex. R. Evid. 103(c).
Similarly, and even easier, if a document is excluded, ask the court to accept the document as an offer of proof for “the record.” Including the document as an offer of proof will not make the document evidence, but it will allow the document to make its way to the appellate court for a harm analysis.