Absent Reporter’s Record Presumes Evidence Supports Judgment | Terrell v. Duke (2026)

Terrell v. Duke, 04-23-00144-CV, August 12, 2026.

On appeal from 131st Judicial District Court, Bexar County, Texas

Synopsis

No reporter’s record, no evidentiary reversal. In Terrell v. Duke, the Fourth Court of Appeals reaffirmed that when an appellant challenges rulings that depend on the trial evidence but fails to provide a reporter’s record, the appellate court must presume the omitted evidence supports the judgment. For Texas family-law appeals, that principle is outcome-determinative in attacks on property division, conservatorship, child support, tort findings, and trial-management rulings.

Relevance to Family Law

This is a family-law appellate record case with broad practical consequences for divorce and SAPCR litigation. Final decrees routinely rest on trial evidence concerning characterization, reimbursement, disproportional division, conservatorship, material-and-substantial-change allegations, best interest, support, enforcement of premarital agreements, and attorney misconduct complaints. Terrell is a pointed reminder that even potentially substantial complaints will fail on appeal if the appellant does not secure a reporter’s record or properly invoke the limited-record procedures under the appellate rules. For family-law trial lawyers, this case underscores that appellate preservation is not just about objections; it is also about making sure the evidentiary record can actually reach the court of appeals.

Case Summary

Fact Summary

The divorce decree in Terrell v. Duke followed a lengthy jury trial conducted over several months in 2022 in Bexar County. The decree addressed nearly every major family-law fault line: property division, debt allocation, identification of separate property, the child’s name change, joint managing conservatorship, the father’s exclusive right to designate the child’s primary residence within Bexar County, possession and access, child support, and competing tort claims between the spouses. The decree also awarded the husband $300,000 on his tort claims and rendered a take-nothing judgment on the wife’s tort claims.

After judgment, the wife appealed and attempted to obtain the reporter’s record without payment based on an earlier affidavit of indigence. That effort failed. The trial court found she was not indigent and could afford the record; the Fourth Court later affirmed that ruling and expressly warned that if she did not pay or make arrangements to pay for the reporter’s record, the appeal would proceed without it. She still did not produce proof of payment, and no reporter’s record was filed.

Proceeding pro se after appellate counsel withdrew, the wife raised thirty-three issues. The appellate court sorted those complaints into three categories: issues requiring a reporter’s record, issues resolvable from the clerk’s record alone, and issues not properly before the court. The excerpted reasoning focuses on the first category and reiterates the central rule: when the complained-of matters depend on the evidence adduced at trial, the absence of a reporter’s record is usually fatal.

Issues Decided

The court decided, among other things, the following appellate-record issues:

• Whether the appellant could challenge provisions of the divorce decree allegedly inconsistent with a premarital agreement without a reporter’s record showing the agreement was admitted or otherwise properly before the trial court.
• Whether the appellant could argue that a prior SAPCR order controlled conservatorship and possession issues when that prior order was not included in the appellate record.
• Whether legal- and factual-sufficiency challenges to conservatorship-related findings and tort findings could be reviewed without the trial evidence.
• Whether complaints about improper contact with jurors, denial of mistrial, and refusal to sanction opposing counsel could be reviewed without a reporter’s record of the underlying events and objections.
• More broadly, whether the absence of a reporter’s record required the court to presume the omitted evidence supported the decree and prevented reversal on issues dependent on trial evidence.

Rules Applied

The court relied on familiar but unforgiving appellate-record principles:

• The appellant bears the burden to present a sufficient record showing reversible error. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990).
• In the absence of a reporter’s record, the appellate court presumes the omitted evidence supports the trial court’s judgment. The opinion cited authorities including Cody Tex., L.P. v. BPL Expl., Ltd., 619 S.W.3d 735, 742–45 (Tex. App.—San Antonio 2021, pet. denied), and Coleman v. Lemons, No. 01-01-00209-CV, 2001 WL 1854591, at *1 (Tex. App.—Houston [1st Dist.] May 2, 2002, no pet.) (mem. op.).
• A court of appeals cannot assess harmful error without the relevant record. See Tex. R. App. P. 44.1(a).
• Evidentiary sufficiency complaints generally require the entire reporter’s record unless a partial-record procedure under Texas Rule of Appellate Procedure 34.6 is properly invoked.
• Documents contained in the clerk’s record are not evidence merely because they were filed; they must have been admitted at trial or judicially noticed. The court cited Loredo v. Williams, No. 03-25-00052-CV, 2025 WL 2325166, at *2 (Tex. App.—Austin Aug. 13, 2025, no pet.) (mem. op.).
• Pro se litigants are given a liberal reading of their briefs, but they must still comply with procedural rules governing appellate presentation.

The opinion also referenced Texas Rule of Civil Procedure 145(g) in the separate costs dispute and rejected the appellant’s reliance on Texas Rule of Appellate Procedure 38.1(g) to have unsupported factual assertions accepted as true.

Application

The court’s analysis was methodical and highly instructive for appellate practitioners. It began with the premise that most of the appellant’s thirty-three issues were evidence-dependent. That classification mattered because once no reporter’s record was filed, the court’s review narrowed dramatically.

On the premarital-agreement issues, the court noted that a copy of the alleged agreement appeared in the clerk’s record because it had been attached to pleadings and summary-judgment filings. But that did not solve the problem. Without a reporter’s record, the court could not know whether the agreement was authenticated, whether objections were raised, whether it was admitted into evidence, or whether the trial court judicially noticed it. Nor could the court determine whether the trial evidence established the factual predicates the appellant claimed required enforcement in her favor. The same problem affected the alleged conflict with a 2018 SAPCR order: that order was not included in the record, so the court could not compare its terms to the decree or evaluate harm.

The sufficiency complaints failed for an even more obvious reason. A party challenging the legal or factual sufficiency of trial evidence must ordinarily furnish the full evidentiary record, or at least properly proceed under the partial-record rule. The appellant did neither. As a result, the court had no basis to evaluate whether the evidence supported conservatorship-related findings, any modification-related issues, or the jury’s tort findings.

The same logic carried over to complaints about alleged juror contact, denial of mistrial, and refusal to sanction opposing counsel. Those are highly context-driven rulings. Without a reporter’s record showing what occurred, what objections were made, what explanations were offered, and how the trial court ruled in context, the court of appeals could not determine either error or harm.

The opinion is also notable for rejecting an attempted workaround. The appellant argued that Rule 38.1(g) required the court to accept her factual assertions as true because the appellee had not contradicted them. The court disagreed because factual statements in a brief must be supported by record references, and there was no reporter’s record to support those assertions. In addition, the appellee expressly disputed factual statements relying on matters outside the record. That discussion is especially useful in family-law appeals, where appellants sometimes try to fill evidentiary gaps through briefing narratives. Terrell makes clear that briefing cannot substitute for the record.

Holding

The court held that the appellant could not obtain reversal on issues that required examination of the trial evidence because she failed to file a reporter’s record, and the omitted evidence was therefore presumed to support the judgment. Applying Christiansen and related authorities, the court emphasized that the burden to present a sufficient record rests with the appellant, not the court, not the appellee, and not the trial judge.

The court further held that complaints concerning alleged inconsistency with a premarital agreement and a prior SAPCR order could not succeed because the appellate record did not establish that the premarital agreement was actually in evidence, and the prior SAPCR order itself was not included in the record. Without those materials in an appellate posture that permitted review, the court could neither measure error nor assess harm.

The court also held that the appellant’s legal- and factual-sufficiency challenges necessarily failed because such complaints require the evidentiary record. The same result followed for complaints about alleged improper juror contact, mistrial, and sanctions, all of which depended on events occurring during trial and therefore could not be reviewed in the absence of the reporter’s record. The decree was affirmed.

Practical Application

For Texas family-law litigators, Terrell should be read as a record-management decision as much as an appellate decision. It teaches that many of the issues we most often litigate in divorce and custody cases are functionally unreviewable without a reporter’s record. If your appellate theory depends on testimony, objections, offers of proof, bench conferences, evidentiary rulings, jury-charge discussions, or oral pronouncements, the record is the appeal.

Several practical points follow.

First, where a premarital or postmarital agreement is central to the decree, do not assume inclusion in the clerk’s record preserves anything. Make sure the agreement is authenticated, offered, ruled on, and clearly admitted, or that judicial notice is explicit. Otherwise, the appellate court may treat the document as a paper in the file rather than evidence.

Second, in conservatorship and modification disputes, the absence of the reporter’s record is especially damaging. Material-and-substantial-change evidence, best-interest evidence, and possession/access proof almost always drive the judgment. A clerk’s record rarely captures enough to support reversal.

Third, if there is a prior order—temporary orders, a prior SAPCR order, protective orders, mediated settlement terms incorporated elsewhere—make sure the operative order is actually included in the appellate record. An argument that the final decree conflicts with another order will collapse if that underlying order is missing.

Fourth, on trial-conduct complaints such as juror contact, mistrial, improper jury argument, or sanctions, context is everything. Without a transcribed record of the complained-of event, preservation, objection, explanation, ruling, and resulting prejudice, the appellate court cannot perform a meaningful review.

Finally, if there is a genuine cost problem regarding the reporter’s record, address it aggressively and early. Seek relief under the applicable rules, obtain prompt rulings, and if relief is denied, understand that proceeding without the record will sharply limit appellate options. In some cases, counsel should narrow issues to pure questions of law apparent on the face of the clerk’s record rather than pursue evidence-dependent complaints that cannot succeed.

Checklists

Protect the Appellate Record in a Family-Law Trial

• Identify at the outset which likely appellate issues will depend on testimony or trial exhibits.
• Confirm that every critical exhibit is formally offered and admitted.
• Obtain explicit rulings on objections, authentication issues, and requests for judicial notice.
• Make sure bench conferences or off-the-record discussions affecting substantive rights are placed on the record.
• Preserve offers of proof or bills of exception when evidence is excluded.
• Ensure jury-charge objections and requested questions/instructions are transcribed and filed.

Preserve Premarital-Agreement Issues

• Plead the agreement clearly and attach it if appropriate.
• Authenticate the agreement through competent testimony or stipulation.
• Offer the agreement into evidence at trial; do not rely on its presence in the clerk’s file.
• Obtain a clear ruling admitting the agreement.
• Develop testimony tying the agreement’s operative provisions to the requested property or reimbursement relief.
• Request findings or otherwise create a record showing how the trial court treated the agreement.

Preserve SAPCR and Conservatorship Appellate Issues

• Include all prior operative SAPCR orders in the clerk’s record.
• Clearly identify whether the case involves modification standards under Family Code section 156.101.
• Build a complete record on material and substantial change.
• Build a complete record on best interest, primary residence, possession, support, and any geographic restriction.
• If challenging sufficiency on appeal, order the full reporter’s record unless a proper partial-record designation is strategically justified.
• Avoid assuming the decree alone will reveal the evidentiary basis for the ruling.

Handle Reporter’s Record Cost Problems Early

• Evaluate at judgment whether the client can fund the reporter’s record.
• If indigency relief is sought, comply strictly with Rule 145 procedures and evidentiary requirements.
• Calendar all appellate deadlines relating to payment arrangements and record requests.
• If an indigency challenge is sustained, promptly decide whether to pay, narrow issues, or pursue limited legal challenges only.
• Document all communications with court reporters regarding estimates, payment arrangements, and deadlines.
• Treat any appellate court warning about proceeding without a reporter’s record as dispositive of strategy.

Frame Viable Issues When the Record Is Limited

• Focus on pure legal error apparent from the clerk’s record.
• Evaluate jurisdictional defects, facial inconsistencies in the judgment, or purely documentary issues that do not require testimony.
• Abandon legal- and factual-sufficiency points if the evidentiary record is absent.
• Do not rely on factual narratives in the brief to fill gaps in the record.
• Avoid Rule 38.1(g) arguments unsupported by actual record citations.
• Be candid with the client about the dramatically reduced odds of reversal.

Protect Trial-Conduct Complaints

• Make timely, specific objections to improper contact, jury misconduct, improper argument, or sanctionable conduct.
• Request that the complained-of event and the surrounding circumstances be reported.
• Move for mistrial or sanctions on the record and obtain a ruling.
• Develop a record of prejudice and harm, not just misconduct.
• Request curative instructions where strategically appropriate.
• Preserve post-trial motions if additional factual development is needed.

Citation

Terrell v. Duke, Nos. 04-23-00144-CV & 04-23-00635-CV, memorandum opinion delivered August 12, 2026 (Tex. App.—San Antonio Aug. 12, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

~~f9fd9701-f7bc-4d2d-b4cf-8a2bdf4e236f~~