Memorandum Opinion by Chief Justice Martinez, 04-25-00037-CV, January 28, 2026.
On appeal from the 37th Judicial District Court, Bexar County
Synopsis
When an appellant elects to file a partial reporter’s record without providing a contemporaneous statement of points or issues under Texas Rule of Appellate Procedure 34.6(c), they trigger a fatal common-law presumption that the omitted portions of the record support the trial court’s judgment. In this instance, because the appellant failed to comply with the procedural safeguards of Rule 34.6, the missing volumes—which included his entire case-in-chief—rendered his sufficiency challenges legally impossible to sustain.
Relevance to Family Law
While Vallecillo stems from a civil defamation and statutory grievance dispute, its holding is a cautionary tale for family law practitioners navigating the high costs of appellate transcripts in multi-day custody or complex property trials. Litigants frequently attempt to economize by requesting only “relevant” portions of a transcript (e.g., the specific testimony of a child custody evaluator or a forensic accountant). However, failing to strictly adhere to the notice requirements of Rule 34.6(c) creates an irrebuttable presumption that the omitted testimony—perhaps from a spouse or a social worker—provided sufficient evidence to justify the trial court’s ruling on the best interest of the child or the just and right division of the estate.
Case Summary
Fact Summary
Peter Vallecillo sued Veronica Gonzalez for defamation and the filing of frivolous complaints with the Texas Ethics Commission. Following a jury trial, the court entered a take-nothing judgment based on the jury’s negative findings regarding the defamatory and frivolous nature of the complaints. Vallecillo, proceeding pro se on appeal, struggled with the costs of the reporter’s record. After receiving an estimate of over $3,600 for the full transcript, he opted to pay for a partial record consisting only of the defendant’s testimony and the end of the trial, omitting his own case-in-chief and the testimony of several other witnesses. Crucially, the clerk’s record contained no request for a reporter’s record that included a statement of points or issues, nor did Vallecillo file such a statement independently with the appellate court.
Issues Decided
The central issue was whether an appellant’s failure to file a statement of points or issues under TRAP 34.6(c) requires the appellate court to apply the common-law presumption that omitted portions of a partial reporter’s record support the trial court’s judgment, even when the appellant challenges the legal and factual sufficiency of the evidence.
Rules Applied
The court relied on Texas Rule of Appellate Procedure 34.6(c), which provides a “safe harbor” for appellants using partial records. Under this rule, if an appellant designates a partial record and includes a statement of points/issues, the appellate court will presume the designated portions constitute the entire record for purposes of the appeal. However, the court also looked to Rule 34.6(c)(1) and (4) and the Texas Supreme Court’s holding in Bennett v. Cochran, 96 S.W.3d 227 (Tex. 2002), which emphasizes that while the statement of issues need not be filed at the exact moment the record is requested, it must be filed in time to allow the appellee to designate additional portions of the record. Absent this filing, the common-law presumption articulated in Simon v. York Crane & Rigging Co., 739 S.W.2d 793 (Tex. 1987), remains in effect: any omitted evidence is presumed relevant and supportive of the judgment.
Application
The Fourth Court of Appeals engaged in a strict application of the burden of proof on appeal. Because Vallecillo failed to file a statement of points or issues, he was not entitled to the “safe harbor” presumption that the partial record was complete. Consequently, the court was required to presume that the missing half of the trial—specifically the appellant’s own case-in-chief—contained evidence that supported the jury’s “No” answers. The court noted that because sufficiency reviews (legal and factual) require an examination of the entire record, an appellant who provides only a partial record without the Rule 34.6(c) statement effectively traps themselves. The court could not determine if the evidence was insufficient without knowing what was said during the missing testimony of Vallecillo, Osorio, and Nazaroff.
Holding
The court held that when an appellant fails to provide a statement of points or issues in conjunction with a partial reporter’s record, the appellate court must apply the common-law presumption that the omitted portions of the record support the trial court’s judgment.
The court further held that Vallecillo could not overcome this presumption because the missing testimony constituted the very evidence he was required to produce to meet his burden of proof at trial. As a result, his sufficiency points were overruled and the judgment was affirmed.
Practical Application
In the heat of post-trial motions, the statement of points or issues is often overlooked. For the family law litigator, this case serves as a reminder that “substantial compliance” has limits. If you are representing an appellee and notice that the appellant has filed a partial record without a 34.6(c) statement, you are under no obligation to correct their error. You can strategically rely on the common-law presumption in your brief to argue that the appellant has waived any sufficiency challenge. Conversely, for appellants, the 34.6(c) statement is not a mere formality; it is the only shield against an automatic affirmance when the full record is cost-prohibitive.
Checklists
Navigating the Partial Record Safe Harbor
- Initial Request: When requesting the transcript from the court reporter, include a formal “Statement of Points or Issues” in the written request.
- Filing: Ensure a copy of the written request (containing the statement) is filed with the trial court clerk to ensure it appears in the Clerk’s Record.
- Service: Serve the statement on the appellee immediately to trigger their 10-day window to designate additional portions of the record.
- Verification: Upon receipt of the Reporter’s Record, verify that the court reporter’s certification page acknowledges the partial nature of the request.
- Remediation: If you realize the statement was omitted, file it as soon as possible. Under Bennett, you may still receive the benefit of the rule if it is filed early enough for the appellee to respond and supplement the record before briefing.
Appellee’s Strategy for Incomplete Records
- Audit the Clerk’s Record: Search for any document labeled “Statement of Points” or “Request for Partial Record.”
- Silent Strategy: If the statement is missing and the record is partial, do not move to compel a complete record.
- Briefing the Presumption: In the responsive brief, lead with the common-law presumption. Argue that because the appellant failed to comply with Rule 34.6(c), the court must assume the missing testimony (e.g., temporary orders testimony or expert cross-examination) supports the trial court’s findings.
Citation
Vallecillo v. Gonzalez, No. 04-25-00037-CV (Tex. App.—San Antonio Jan. 28, 2026, no pet. h.).
Full Opinion
Family Law Crossover
In Texas divorce and custody litigation, the “Partial Record Death Trap” is most frequently “weaponized” during appeals of SAPCR orders where the appellant only brings up the final hearing but omits the temporary orders or previous enforcement hearings that the trial court took judicial notice of. If the appellant fails to file a Rule 34.6(c) statement, the appellee can argue that the appellate court must presume the testimony from those omitted hearings supported the “best interest” finding. This effectively makes the trial court’s judgment “bulletproof” against sufficiency challenges. Strategically, if an appellant chooses a partial record in a custody case, the appellee should check for the 34.6(c) statement immediately; its absence is often the most direct path to an affirmance without ever reaching the merits of the custody determination.
~~b843d818-c917-434c-acc8-7a40c2d0bb64~~
Share this content: