Protecting Your Flank: What is a record and how to make sure your argument is preserved for appeal.

Nobody wants a one-word verdict at trial. But as bad as a “guilty” at trial is the one-word verdict on your brilliant appellate argument: waiver. If it’s not preserved, it’s not going to win the day for your client. The purpose of this article is to try to avoid future waiver of our brilliant arguments by knowing two things: 1) What is a record, and 2) how do you make it. From pretrial procedure to motions for a new trial, make your appellate counsel happy by giving them as much to work with as you can.

I. What Is a Record?

For a criminal case, “The Record” consists of two things: the Clerk’s Record and the Reporter’s Record. Tex.R.App.P. 34.1.

A. The Clerk’s Record

The clerk’s record is exactly what it sounds like—the materials that have been filed with the clerk of the court. Texas Rule of Appellate Procedure 34.5 lays out the mandatory contents of the clerk’s record. It includes this: the indictment or information; any special plea or defense motion that was presented to the court and overruled; any written waiver; any written stipulation; where a plea of guilty or nolo contendere was entered; any plea documents; the court’s docket sheet(s); the court’s charge and the jury’s verdict; the court’s judgment or other order that is being appealed; any request for findings of fact and conclusions of law; any post-judgment motion and the court’s order on the motion; the notice of appeal; any formal bill of exception; any request for a reporter’s record; any request for preparation of the clerk’s record; the trial court’s certification of the defendant’s right of appeal; and any filing that a party designates to have included in the record. Tex.R.App.P. 34.5. In addition to the required items, either party may file a request to have specific items included in the clerk’s record. Tex.R.App.P. 34.1(b).

For an appeal, the date a clerk’s record is due to be filed depends on if a motion for new trial is filed. If no motion for new trial is filed, or if the motion for new trial is filed and granted (State’s appeal), the record is due to be filed 60 days from the date of the judgment. Tex.R.App.P. 35.2. If the motion for new trial is filed and denied, either by order or by operation of law, the record is due to be filed 120 days from the date of the judgment. Id.

If any relevant item has been omitted from the clerk’s record, then the trial court, appellate court, or any party may direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item. Tex.R.App.P. 34.5(c). Your motion will need to be very specific about exactly what is missing. Examples of where documents may be missing include when there are different cause numbers, such as if a case was re-indicted and a new case number assigned, or if there are additional cause numbers that are pertinent to the appeal. For best practices, ALWAYS keep a file-stamped copy of any pleadings you file for your records.

B. The Reporter’s Record

The reporter’s record includes all trial testimony, all exhibits admitted into evidence, and anything the attorneys said in open court in the presence of the reporter. This can include stenographic recordings or electronic recordings of the proceedings in court. Tex.R.App.P. 34.6(a). For an appeal you must request, in writing, the record to be prepared and file that request with the clerk of the trial court. Tex.R.App.P. 34.6(b)(2). The request must also designate the exhibits to be included in the reporter’s record. Deadlines for the reporter’s record to be filed are the same as for the clerk’s record, and depend on whether a motion for new trial is filed. Tex.R.App.P. 35.2.

In the same way that a clerk’s record can be supplemented, any party can request the reporter’s record be supplemented if something is missing. Tex.R.App.P. 34.6(d). In addition to missing items in the record, inaccuracies in the record can be corrected either by agreement of the parties or by the trial court. Tex.R.App.P. 34.6(e). If inaccuracies are discovered after a record is filed in the appellate court, that court may send the case back to the trial court for resolution.

If there are discrepancies between a written judgment and the oral pronouncement of judgment, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998). A court of appeals may reform a judgment to make the record “speak the truth” when it has the necessary information to do so. Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 31 (Tex.Crim.App. 1993).

How far back can you go to get a reporter’s record? If there is no appeal, a court reporter is required to file the untranscribed notes of a proceeding with the district court clerk within 20 days after the time to perfect the appeal has expired. Tex.R.App.P. 13.6. The district court clerk is obliged to retain those notes for 15 years from the date they were filed. Id.

So what happens if the reporter’s record is not there? A defendant may be entitled to a new trial if the reporter’s rec­ord is lost or destroyed. Banks. v. State, 312 S.W.3d 42 (Tex. App.—Dallas 2008, pet. ref’d). In order to receive a new trial, the Defendant must establish that 1) they timely requested a reporter’s record; 2) due to no fault of their own, a significant exhibit or portion of the reporter’s notes or records have been lost or destroyed; 3) the lost, destroyed, or inaudible portion of the reporter’s record is necessary to the appeal’s resolution; AND 4) the parties cannot agree on a complete reporter’s record. Id. citing Tex.R.App.P. 34.6(f). If only part of the record is lost or destroyed a reversal is not automatic. Rather, a harm analysis is conducted to determine if essential portions of the record are missing. Issac v. State, 989 S.W.2d 754, 756–57 (Tex.Crim.App. 1999).

II. How Do I “Make” a Record?

So now that we know what a record is, the next question is how do we make it correctly? The best place to start is to think about why we make objections and get them on the record. We object in order to make the trial judge and opposing counsel aware of an issue or perceived error and allow the judge or counsel the opportunity to fix it. We make sure those objections are on the record so that when the trial court does not fix the error, the appellate court can. All error for purposes of appeal is preserved in the trial court by way of (1) written motion, (2) objection, or (3) specific request. Tex.R.App.P. 33.

A. Raise It or Waive It

No matter how correct, amazing, or fundamental an appellate issue is, if it’s not on the record, then for the most part, it does not matter. Failing to call the trial court’s attention to an error and permitting the judge the opportunity to rule on it waives the error. Appellate courts have no latitude to reverse a trial court’s decision on new theories of law not previously presented to the trial court for its consideration. State v. Mercado, 972 S.W.2d 75, 77–78 (Tex.Crim.App. 1998). This rule applies equally to both parties. Martinez v. State, 91 S.W.3d 331, 336–37 (Tex.Crim.App. 2002) (noting that the waiver rule applied equally to “goose and gander”—i.e., the State and the defendant). Even constitutional error can be waived. Dewberry v. State, 4 S.W.3d 735, 752 (Tex.Crim.App. 1999).

There are some very limited exceptions to the waiver rule. Issues that can be raised for the first time on appeal are generally fundamental—those rights which are absolute and non-forfeitable. The Court of Criminal Appeals has established three general categories of error: absolute rights, non-forfeitable rights, and forfeitable rights. Marin v. State, 851 S.W.2d 275, 278–280 (Tex.Crim.App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997). The reason some rights are so fundamental is not because of the harm that is caused when they are violated, but because violation undermines the adversarial system as a whole. Proenza v. State, 541 S.W.3d 786 (Tex.Crim.App. November 15, 2017).

Absolute rights are those rights considered so fundamental to the proper functioning of the adjudicatory process that they cannot be forfeited by inaction alone. Id. For example, a conviction under a statute later held unconstitutional can be challenged for the first time on appeal. Smith v. State, 463 S.W. 3d 890 (Tex.Crim.App. 2015).

Non-forfeitable rights are rights that can be surrendered, but not solely by inaction. For example, a deaf or non-English-speaking defendant has the right to an interpreter, and a judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by the defendant. Garcia v. State, 149 S.W.3d 135, 145 (Tex.Crim.App. 2004).

Lack of jurisdiction is a fundamental error and is reviewable at any time, even if raised for the first time on appeal. Stine v. State, 908 S.W.2d 429, 431 (Tex.Crim.App. 1995). A challenge to the legal sufficiency of the evidence supporting a conviction cannot be forfeited for failure to object at trial. See Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App. 2004). An illegal sentence—one outside the statutory range of punishment—may be challenged at any time. See Ex. Parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006). “A Judge’s improper commentary on the evidence cannot be forfeited by inaction alone.” Proenza, 541 S.W.3d 786, 801.

Failure to object to a jury charge error is not an absolute bar to appellate review, Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App. 2008), but it does make it harder to prevail. See Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985). When an objection is made, the standard for review is “some harm.” Id. at 172. When no objection is made, the error is reversible only if it is egregious—it creates such harm that it deprives the accused of a “fair and impartial trial.” Id. Ineffective assistance of counsel claims may be raised for the first time on appeal.

Do not rest on the hope that an objectionable action is a fundamental error that can be raised for the first time on appeal. Most rights of criminal defendants fall into the third category: If you don’t raise it, you waive it.

B. Guideline to Preserving Error

Now we know what a record consists of, and that we want our issues in the record, how do we make sure that the issues are properly preserved?

1. WWH: What, Why, How

In order to preserve an issue in the record, you must tell the court 1) what you want, 2) why you want it, and 3) how do you get it. First, state what you want. Your request for what you want has to be specific. The record must show that the attorney “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint.” Tex.R.App.P. 33.1(a)(1)(A). Just saying “I object!” is not sufficient.

Second, you must state why you want what you want. Share your supporting legal theory with the trial court. Be careful, though! An objection stating one legal theory at trial cannot be used to support a different legal theory on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). For example, objecting to the introduction of an extraneous offense on remoteness will not preserve a point of error that the evidence is more prejudicial than probative.

Finally, state how you get to this ruling. What authority are you relying on for your objection? State every ground you have to object to some testimony or evidence. For example, when moving to suppress evidence, don’t just cite the 4th Amendment to the United State Constitution when you can object on the 4th and 14th amendments, Article I, Section 9, of the Texas Constitution, Article 38.23 of the Texas Code of Criminal Procedure, and the litany of case law you have at your fingertips. Throw it all out there. It may get you what you want, and if not, it’s there for appeal.

Don’t let this intimidate you. If the specific grounds for an objection are apparent from the context, a lack of specificity can be excused. Tex.R.App.P. 331.(a)(1)(A). There are no magic words that you have to say to preserve an error for appeal as long as the correct ground for the objection was obvious to the judge and opposing counsel. See Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977).

2. Know When to Object

Unfortunately, the amazing objection that pops into your mind at 3:00 a.m. the morning after court is a little late. “A defendant must make a timely objection in order to preserve an error in the admission of evidence.” Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995). The “contemporaneous objection rule” is that an objection must be made at the first opportunity to do so. Tex.R.App.P. 33.1; Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997). Usually this occurs when the evidence is admitted. Wilson v. State, 511 S.W.2d 531, 532 (Tex.Crim.App. 1975). For testimony, however, “a defendant should make an objection before the witness responds.” Dinkins, at 355. Failure to timely object waives the error. Id.

(aka The Texas Three Step)

Any objection, motion, or request must be called to the trial court’s attention and ruled on adversely in order to preserve error. Tex.R.App.P. 33.1. Something is only preserved for appeal if you don’t get what you want. The key is the adverse ruling.

If you object, and the objection is overruled, YOU ARE DONE. Your issue is preserved for appeal.

If you object, and your objection is sustained, you have to keep going. To do the Texas Three Step, you have to continue by 1) requesting an instruction to disregard and 2) requesting a mistrial. Until the judge denies you something, either your instruction or the mistrial, your issue is not preserved for appeal.

Remember, “Move along counsel,” or, “The jury will remember the testimony,” are not rulings. Be persistent, and get your judge to rule. If your judge fails to rule or refuses to rule, an objection must be made to that refusal to rule. Tex.R.App.P. 33(a)(2)(B).

While probably easier, but just as important, make sure to get a ruling on any written motions. Just filing the motion and proposed order is not enough. Get a ruling. Do not rely on the docket sheet. Docket sheet entries are not sufficient rec­ord rulings because they are inherently unreliable and lack the formality of orders and judgments. State v. Shaw, 4 S.W.3d 875, 878 (Tex. App.—Dallas 1999, no pet.)

4. “Running Objections”

Standing up and objecting to a continuing line of questioning or even to an entire witness can be tedious and distracting. It is possible to lodge one objection to an entire line of questioning or even an entire witness, known as a running objection. A timely and specific “running” objection will preserve error. Sattiewhite v. State, 786 S.W.2d 27, 283, 284–85 n. 4 (Tex.Crim.App. 1989) (stating “as long as the running objection constituted a timely objection, stating the specific grounds for the ruling . . . then the error should be deemed preserved by an appellate court”). Make sure, as discussed above, to make your objection and the grounds for it clear. Also, be careful not to waive the error later by a “no objection” statement.

5. Specific Motion Requirements and Limitations

Some motions have specific requirements that must be met in order to properly call the matter to the trial court’s attention. If those specific requirements are not met, the issue is not preserved for appeal.

For example, a motion for continuance must be in writing and sworn to by a person having personal knowledge of the facts. Tex. Code Crim. Proc. Arts.§ 29.03 and § 29.08. An oral motion for continuance preserves nothing. Anderson v. State, 301 S.W.3d 276, 279 (Tex.Crim. App. 2009).

A motion for new trial, jurisdictionally, must be filed within 30 days from the date of the judgment. Tex.R.App.P. 21.4(a). The motion must be acted on within 75 days from the date of the judgment and must be done by written order; a docket entry will not suffice. Tex.R.App.P. 21.8(a) and (b). This means that if you wait until the 30th day to file your motion for new trial, it must be ruled on within 45 days or it is overruled by operation of law. A trial court cannot extend the time to file a motion for new trial. See Morris v. Morris, 250 S.W.3d 119, 120 (Tex.App.—Tyler 2003, no pet.).

A Motion in Limine preserves nothing for appellate review. “To preserve error regarding the subject matter of the motion in limine, the attorney must object at the time the subject is raised during the trial.” Fuller v. State, 253 S.W.3d 220, 232 (Tex.Crim.App. 2008). Even an objection that the evidence “violates the motion in limine” is usually not enough. Webb. V. State, 760 S.W.2d 263, 275 (Tex.Crim.App. 1988). You have to explain at the time why the evidence is not admissible.

6. Pretrial Rulings and Rulings Outside the Presence of the Jury

Unlike your motion in limine, rulings on pretrial motions or rulings outside the presence of the jury do not need to be re-urged to preserve them for appeal. See Tex.R.Evid. 103(b); Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App. 1986). Just because you don’t have to make your objection again doesn’t mean you don’t want to make your objection again. If additional testimony comes out at trial that supports your previously denied motion, re-urge the motion to the court. Also, remember that issues like probable cause can be presented to a jury with a 38.22 jury instruction. Take as many bites at that apple as you can. A fairly recent Court of Criminal Appeals case held that a trial objection asserting a specific ground not included in an earlier motion was sufficient to preserve a claim of error on appeal. See Gibson v. State, 541 S.W.3d 164 (Tex.Crim.App. Nov. 8, 2017).

Beware of inadvertent waiver! When an attorney states during trial that they have “no objection” to the admission of evidence that was the subject of a pretrial motion to suppress or other objection designed to exclude that evidence, it has been found to waive any error in the trial court’s admission of that evidence despite the prior ruling. See Estrada v. State, 313 S.W.3d 274, 302 (Tex.Crim.App. 2010); Harris v. State, 656 S.W.2d 481, 484 (Tex.Crim.App. 1983).

However, the current rule regarding inadvertent waiver is not as harsh. “The rule that a later statement of ‘no objection’ forfeits an earlier-preserved error is context-dependent.” Thomas v. State, 408 S.W.3d 877 (Tex.Crim.App. 2013). Your error will still be preserved if the record otherwise establishes that no waiver was either intended by the attorney or understood by the trial court. Id. at 885.

Be safe. Practice this at home. “No further objections, your honor.”

7. Keeping Your Record Clean, and Making Sure It’s There

The record of your trial is not a video. It is a list of documents and dates from the clerk and a transcript of what the court reporter hears. It’s important that everything you want your appellate counsel, and more importantly the Court of Appeals, to hear is in that record and is as clear as possible.

Consider the Abbott and Costello issue on a transcript:

Q: So when you first heard the gunshot, where were you when you saw the defendant with the gun?
A: I was standing right here.
Q: Right there?
A: Right here.
Q: Right there?
A: Yes.

Especially in this age of digital display and electronic rec­ords, it is important to either include a hard copy of notations on exhibits to give context to testimony, or use descriptive language in the question and answer to paint a picture for appellate counsel and courts.

Remember that if the court reporter is not present, or isn’t taking down what is being said, it is not part of the record and not preserved for appeal. If an attorney wants the bench conference recorded, they must ask the reporter to take it down. Valle v. State, 109 S.W.3d, 500, 508 (Tex.Crim.App. 2003). A pretrial motion asking that the court reporter record all bench conferences is similar to a motion in limine and will not preserve error. Moore v. State, 999 S.W.2d 385, 298 (Tex.Crim.App. 1999).

If there is a bench conference, or a conference in chambers or any other place the court reporter is not taking everything down, you must memorialize the substance of what was requested and the trial court’s ruling once proceedings are back on the record.

III. What Does This Mean for Appellate Counsel?

The question to keep in the back of your mind is why are we doing this at all? The answer is so that a trial and its proceedings can be reviewed. The written record is all there is to work with on appeal. All preservation occurs at the trial court level. If any matter does not appear in the written record, an appellate court will presume that it did not happen. Where an issue has not been properly preserved for appeal, an appellate court should not address the merits of that issue. Ford v. State, 305 S.W.3d 530, 533 (Tex.Crim.App. 2009).

So make your record. Make it clear. And for that every once in a while when we don’t get a win from the jury, preserve everything to protect your flank.

Credit for the original research and paper goes to former Dallas County Public Defender Appellate Division Chief Katherine A. Drew.

Clifford Duke
Clifford Duke
Clifford Duke has been with the Dallas County Public Defender’s Office for the last thirteen years after a short miserable term practicing personal injury and worker’s compensation law. He is a graduate of Gonzaga University, a Past President of the Collin County Young Lawyers Association and the Dallas County Criminal Defense Lawyers Association, and currently serves on as a Director for TCDLA. He enjoys occasionally volunteering with Legal Aid of Northwest Texas, as well as speaking for TCDLEI and TCDLA. He and his wife are both avid hockey fans and players, and are enjoying getting their six year old son into the best game on earth.

Clifford Duke has been with the Dallas County Public Defender’s Office for the last thirteen years after a short miserable term practicing personal injury and worker’s compensation law. He is a graduate of Gonzaga University, a Past President of the Collin County Young Lawyers Association and the Dallas County Criminal Defense Lawyers Association, and currently serves on as a Director for TCDLA. He enjoys occasionally volunteering with Legal Aid of Northwest Texas, as well as speaking for TCDLEI and TCDLA. He and his wife are both avid hockey fans and players, and are enjoying getting their six year old son into the best game on earth.

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