                                     NO. 07-05-0165-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                    APRIL 18, 2006
                           ______________________________

              IN RE ONE MAN’S ROLEX WATCH YELLOW GOLD,
      ONE YELLOW GOLD BRACELET, and ONE YELLOW GOLD MAN’S RING
                    _________________________________

              FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                    NO. 90,912-B; HON. JOHN BOARD, PRESIDING
                         _______________________________

                                      Opinion
                          _______________________________

Before QUINN, C.J. and REAVIS and CAMPBELL, JJ.

       Omar Mendoza appeals from a post-answer default judgment forfeiting his interest

in a Rolex watch, gold bracelet, and gold ring. The forfeiture occurred under the auspices

of Chapter 59 of the Code of Criminal Procedure. Mendoza contends that the default

judgment should be reversed because he 1) was afforded no notice or was denied

sufficient notice of the trial and 2) was denied the ability to obtain a record of the forfeiture

hearing since the proceeding was not memorialized. We address only the second issue

for it is dispositive and, upon addressing it, reverse the judgment.

       Issue Two – No Recording of the Trial

       A forfeiture proceeding is civil in nature. Thus, the procedures to be followed are

those applicable to other civil suits in general. TEX . CODE CRIM . PROC . ANN . art. 59.05(b)

(Vernon Supp. 2005) (stating that “[a]ll cases under this chapter shall proceed to trial in the
same manner as in other civil cases”). Furthermore, statute places upon the State the

burden of proving, by a preponderance of the evidence, that the item being forfeited is

subject to forfeiture. Id.

       Next, authority holds that the failure to have a court reporter transcribe an

evidentiary proceeding when the appellant and his counsel are absent from it constitutes

reversible error. Sharif v. Par Tech, Inc., 135 S.W.3d 869, 873 (Tex. App.–Houston [1st

Dist.] 2004, no pet.); Chase Bank of Texas, N.A. v. Harris County Water Control & Improv.

Dist., 36 S.W.3d 654, 655-56 (Tex. App.–Houston [1st Dist.] 2000, no pet.); see Rogers v.

Rogers, 561 S.W.2d 172, 173-74 (Tex. 1978) (holding that if an appellant “exercises due

diligence and through no fault of his own is unable to obtain a proper record of the

evidence introduced, this may require a new trial where his right to have the case reviewed

can be preserved in no other way”).

       Here, the clerk’s record discloses that the State sued to forfeit the property

mentioned earlier. Mendoza was joined as a party and filed a verified answer denying his

opponent’s purported right to relief. When the proceeding ultimately came for trial, neither

Mendoza nor his attorney of record was present. Thereafter, the trial court rendered the

post-answer default judgment at issue. That the trial occurred on the designated date is

undisputed, as is the fact that a court reporter transcribed neither the evidence presented

nor the argument proffered at the hearing. These circumstances evince reversible error

of the kind described in Rogers, Sharif, and Chase Bank.

       Additionally, we reject the State’s contention that no error arose because the trial

court was able to grant judgment based solely on the State’s pleadings. A post-answer

default judgment may not be entered based solely on the pleadings; rather, the plaintiff


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must offer evidence and prove his claim. In re K.B.A., 145 S.W.3d 685, 690 (Tex.

App.–Fort Worth 2004, no pet.); Sharif v. Par Tech, Inc., 135 S.W.3d at 873. And, to the

extent that the trial court insinuated in its judgment that it received evidence at the trial, the

proceeding was evidentiary in nature and controlled by Rogers, Sharif, and Chase Bank.

       We also reject the contention that Rogers and its progeny is not controlling because

Mendoza failed to urge an issue on appeal questioning the sufficiency of the evidence.

Without a record of the evidence, one can hardly claim with any semblance of authority

that the evidence was insufficient. And, we opt not to require from Mendoza that which

he cannot do (i.e. review the record and attack the sufficiency of the evidence) as a

condition to preserving his complaint. Gilley v. Anthony, 404 S.W.2d 60, 64 (Tex. Civ.

App.–Dallas 1966, no writ) (holding that the law will not require one to do the fruitless).

       Accordingly, we sustain issue two, reverse the judgment, and remand the cause for

new trial.



                                                    Brian Quinn
                                                    Chief Justice




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