Greenwood v. State

¶1concurring in part and dissenting in part.

¶2I agree that Tex.R.App.P. 53(d) requires the defendant to provide either an agreed statement of facts or a statement of facts which contains the entire record of the trial before the fact finder, in order to challenge the sufficiency of the evidence.1 The majority’s interpretation of the interplay between Tex.R.App.P. 50(d) and Rule 53(d) is consistent with my position in Stacy v. State, 819 S.W.2d 860, 864 (Tex.Cr.App.1991) (Baird, J., dissenting) (“[a] party should not be able to prevail on appeal by failing to discharge its burden of providing the appellate court with a sufficient record.”). Therefore, I join the majority’s interpretation of Rule 53(d) in situations where the sufficiency of the evidence is challenged. However, I dissent because the majority’s disposition is inconsistent with our disposition in Stacy, supra.

¶3I. THE DISPOSITION IN STACY.

¶4In Stacy, the State appealed the trial judge’s order granting Stacy’s motions for new trial. See Tex.Code Crim.Proc.Ann. art. 44.01(a)(5). However, the State failed to provide a complete statement of facts for the appellate court to review the trial judge’s decision. The Court of Appeals denied, as untimely filed, the State’s motions to file a complete statement of facts and delivered its opinion. State v. Stacy, 796 S.W.2d 520 (Tex.App. — San Antonio 1990). Shortly thereafter, in a case of first impression, we interpreted Tex. R.App.P. 54(b) to provide the State with 120 days, from the date of an order granting a defendant’s motion for new trial, to file a statement of facts for appeal. State v. Daniels, 806 S.W.2d 838 (Tex.Cr.App.1991). Therefore, relying on our opinion in Daniels, we vacated the judgment and remanded the cases to the Court of Appeals, without a request from either party. Stacy v. State, 819 S.W.2d at 861 (Tex.Cr.App.1991).

¶5II. THE DISPOSITION TODAY.

¶6In the instant case, we granted appellant’s petition for discretionary review to interpret Rule 53(d).2 This being a case of first impression, the majority relies upon *667the interpretations of other appellate courts and, consistent with those holdings, interprets Rule 53(d) as requiring an entire statement of facts.3 However, rather than remanding the case, the majority affirms the judgment of the Court of Appeals.

¶7The majority should be consistent and remand the case. To affirm the judgment of the Court of Appeals, without first providing appellant an opportunity to pursue his appeal, is, in my opinion, patently unfair. In Stacy, we allowed the State to provide the Court of Appeals with a belated statement of facts, even though the State did not request such relief. Whereas, in the instant case, appellant, in good faith and believing to be in full compliance with Rule 53(d), attempted to perfect a limited appeal.4 Moreover, appellant has specifically requested that we remand the case to the Court of Appeals. I believe a remand is the only fair disposition in such cases of first impression.

¶8We should vacate the judgment and remand the case to the Court of Appeals with instructions to consider appellant’s eighth point of error if the appellant timely provides the Court of Appeals with either an agreed statement of facts or a statement of facts which contains the entire record of the trial before the fact finder. Because the majority fails to do so, I dissent.