                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


  THE ESTATE OF JOEL SOTO by and                  §
  through its independent administrator,                          No. 08-18-00007-CV
  MARIBEL AMADOR, and MARIBEL                     §
  AMADOR, Indiv. and IVAN SOTO,                                      Appeal from the
  JOSEL SOTO, JR., and PAULINA SOTO,              §
  all Indiv., By and Through Their Next                        205th Judicial District Court
  Friend, MARIBEL AMADOR,                         §
                                                               of Hudspeth County, Texas
                               Appellants,        §
                                                                  (TC#CV-04423-205)
  v.                                              §

  BAUDELIO GONZALEZ MIRELES,                      §

                               Appellee.          §

                                           OPINION
       Appellants, Maribel Amador, the Independent Administrator of the Estate of Joel Soto, et

al., appeal the trial court’s denial of their Motion for New Trial. The decedent, Joel Soto, was

struck and killed by a vehicle driven by the Appellee, Baudillo Gonzalez Mireles, as Soto was

riding his bicycle. In a single issue, Appellants contend the trial court erred by not excluding the

evidence regarding Joel Soto’s blood alcohol content level. We affirm.

                                        BACKGROUND
       Both parties agree a trial took place and evidence pertaining to Soto’s blood alcohol content

level at the time of his death was admitted during the trial. The jury unanimously found Soto

negligent for his death and awarded zero damages to Soto’s estate.

       On December 15, 2017, the trial court denied Appellants’ Motion for New Trial. This

appeal followed.

                                           DISCUSSION

       In their sole issue, Appellants claims reversible error because the trial court erred by not

excluding the evidence as to Soto’s blood alcohol content level.            Appellee responds that

Appellants did not provide the reporter’s record of the trial testimony or exhibits, and only provides

the reporter’s record from the pretrial hearings and the hearing on her motion for new trial.

Appellee asserts the lack of the full trial record is fatal to Appellants’ appeal because Appellants

cannot establish harmful evidentiary error with a partial record. We agree.

                                        Standard of Review

       We review a trial court’s denial of a motion for new trial for abuse of discretion. Manjlai

v. Manjlai, 447 S.W.3d 376, 379 (Tex.App.—Houston [14th Dist.] 2014, pet. denied). A trial

court abuses its discretion when it rules without regard for any guiding rules or principles.

Granbury Marina Hotel, L.P. v. Berkel & Co. Contractors, Inc., 473 S.W.3d 834, 841 (Tex.App.—

El Paso 2015, no pet.)(citing Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998)). In addition, an appellant seeking to reverse a judgment on evidentiary error must show

not only that the trial court abused its discretion and improperly admitted the evidence, but also

that the admission probably resulted in an improper judgment. Sanchez v. Balderrama, 546

S.W.3d 230, 234 (Tex.App.—El Paso 2017, no pet.). To properly evaluate whether an admission


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of a particular piece of evidence resulted in an improper judgment, we must review the entire

record and the appellant must demonstrate the judgment turned on the specific, particular evidence

admitted. Id. at 234-35. Determining whether erroneous admission of evidence is harmful is a

matter of judgment by the reviewing court. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131,

144 (Tex. 2004).

                                               Analysis

        Under Rule 34.6(c) of the Texas Rules of Appellate Procedure, if an appellant requests a

partial reporter’s record, the appellant must include in the request a statement of the points or issues

to be presented on appeal and will then be limited to those points or issues. TEX.R.APP.P.

34.6(c)(1). This gives the opposing party the opportunity to supplement the requested evidence

by designating additional exhibits and portions of the testimony to be included in the reporter’s

record. TEX.R.APP.P. 34.6(c)(2). Compliance with Rule 34.6(c) requires appellate courts to

presume that the partial reporter’s record constitutes the entire record for purposes of reviewing

the stated points or issues. TEX.R.APP.P. 34.6(c)(4).

        Appellants failed to comply with TEX.R.APP.P. 34.6(c)’s requirements.               Appellants

requested a partial reporter’s record, but failed to include any statements of the issues intended to

be presented on appeal. When an appellant completely fails to include any statements of the

issues, the record is deemed incomplete and the appellate court presumes the omitted portions of

the reporter’s record are relevant and support the trial court’s judgment. Bennett v. Cochran, 96

S.W.3d 227, 229 (Tex. 2002)(noting that Rule 34.6 requires appellate courts to affirm the trial

court’s judgment when appellants completely fail to submit statements of issues); In re Tyler, 408

S.W.3d 491, 494 (Tex.App.—El Paso 2013, no pet.).


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         Appellants contend the admission of the toxicology report and any testimony relating to

the deceased’s blood alcohol content rendered an improper judgment and asks this Court to find

reversible error based on the trial court’s admission of the evidence. The applicable analysis

requires a review of the entire record, and Appellants must demonstrate that the improper judgment

turned on the erroneously admitted evidence. Sanchez, 546 S.W.3d at 235.

         Appellants only requested a partial reporter’s record, which did not include any of the trial

record, including any trial testimony or trial exhibits. A determination of whether evidentiary

error caused an improper judgment cannot be made without a review of the entire trial record.

See TXI Transportation Company v. Hughes, 306 S.W.3d 230, 242–43 (Tex. 2010)(“[Probable

error] is a matter of judgment drawn from an evaluation of the whole case from voir dire to closing

argument, considering the state of the evidence, the strength and weakness of the case, and the

verdict.”)[Internal quotation marks omitted]. Appellants only requested the reporter’s record of

the hearings on the pretrial matters and her motion for new trial; the entire trial record absent,

leaving this Court without any record of the admission of the complained of evidence or the

circumstances surrounding the admission – we cannot even determine whether there was an

properly preserved objection or even if it comports with Appellants’ issue on appeal.1 Since we



1 Appellants requested the following items from the court reporter to be filed for this appeal:

         [Item 1] Hearing on ‘Plaintiff’s’ Motion to Strike Paul Goldstein, PhD And Hector Zepada, M.D.
         As Experts and to Exclude Toxicology Report Re: Joel Soto’;

         [Item 2] Hearing on ‘Plaintiff’s’ Second Supplemental Motion to Strike Paul Goldstein, PhD And
         Hector Zepada, M.D. As Experts And To Exclude Toxicology Report Re: Joel Soto’;

         [Item 3] Any and all reporter’s record re: all pre-trial matters including, but not limited to, admission
         into evidence of exhibits, ‘Plaintiff’s Motion In Limine,’ and ‘Plaintiffs’ First Supplemental Motion
         In Limine’; and

         [Item 4] ‘Plaintiffs’ Motion For New Trial.’
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cannot review the entire record—as we are required to do—to determine whether the alleged

evidentiary error rendered an improper judgment, we are unable to find reversible error. See

Sanchez, 546 S.W.3d at 235; Granbury, 473 S.W.3d at 841.

       Aside from being unable to conduct an analysis of the entire record, Appellants’ failure to

comply with Rule 34.6(c)’s requirements further increase Appellants’ legal impediments. When

an appellant files a partial reporter’s record, but fails to comply with Rule 34.6(c), we are required

to presume that the omitted portions of the reporter’s record are relevant and support the trial

court’s judgment. Bennett, 96 S.W.3d at 229; El Paso Accent Homes, L.L.C. v. Preferred Group

Properties, Inc., 387 S.W.3d 810, 812 (Tex.App.—El Paso 2012, no pet.).

       Texas appellate courts have consistently held that harmful reversible error based on an

evidentiary ruling cannot be established with a partial reporter’s record that lacks statements of

issues. Brown v. McGuyer Homebuilders, Inc., 58 S.W.3d 172, 176 (Tex.App.—Houston [14th

Dist.] 2001, pet. denied)(“because [appellant] failed to comply with Rule 34.6(c)(1), we must

presume that evidence omitted from the record would have shown that the errors, if any, were

harmless.”). Because Appellants failed to comply with Rule 34.6(c), we presume the evidence

omitted from the record would have shown that any error, if any, was harmless. Brown, 58

S.W.3d at 176.

       In the absence of the entire trial record and Appellants’ failure to comply with Rule 34.6(c),

we are unable to find reversible error. Accordingly, we find that the trial court did not abuse its

discretion. We overrule the sole issue on appeal.

                                          CONCLUSION

       The judgment of the trial court is affirmed.


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August 21, 2019
                                            YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.




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