Appellate Record Presumption Without Reporter’s Record | Terrell v. Duke (2026)

Terrell v. Duke, 04-23-00635-CV, August 12, 2026.

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

Synopsis

An appellant cannot obtain reversal of a divorce decree on complaints that depend on trial evidence when no reporter’s record is filed. In that circumstance, the court of appeals will presume the omitted evidence supports the judgment, which is usually fatal to challenges involving property division, conservatorship, damages, jury-related complaints, and evidentiary rulings.

Relevance to Family Law

For Texas family law litigators, Terrell v. Duke is a record-preservation case masquerading as a merits appeal. The opinion is a blunt reminder that appellate complaints about disproportionate property division, modification-type conservatorship rulings, tort findings folded into a divorce decree, sanctions, mistrial requests, and trial-level evidentiary disputes generally rise or fall on the reporter’s record. If the appellant does not secure that record, the appellate court will not reconstruct the trial from briefing, attachments, or clerk’s-record filings; it will presume the evidence heard by the trial court and jury supports the decree.

Case Summary

Fact Summary

The parties married in 2018 and had one child. The divorce litigation expanded well beyond routine dissolution issues. After a multi-month jury trial in 2022, the final decree addressed property division, debts, separate-property characterization, the child’s name change, conservatorship, geographic restriction, possession, child support, and competing tort claims. The decree awarded the husband $300,000 on his tort claims and rendered a take-nothing judgment on the wife’s tort claims.

On appeal, the wife asserted thirty-three issues attacking many aspects of the decree. But the case took a procedural turn before the merits were reached. She sought to obtain the reporter’s record without cost based on an indigency filing. That effort failed. The trial court found she was not indigent, the court of appeals affirmed that ruling in the related costs appeal, and the appellate court expressly warned that failure to pay for the reporter’s record would result in the appeal being considered without it. She did not make arrangements for payment, and no reporter’s record was filed.

That omission controlled the outcome. The court divided the issues into three groups: those requiring a reporter’s record, those resolvable from the clerk’s record alone, and those not properly before the court. The quoted portion of the opinion focuses on the first category and reiterates the governing rule: the appellant bears the burden to bring forward a sufficient record showing reversible error.

Issues Decided

The court decided, at minimum, 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, authenticated, or judicially noticed.
• Whether the appellant could challenge conservatorship-related rulings by relying on an alleged prior SAPCR order that was not included in the appellate record.
• Whether legal- and factual-sufficiency challenges to trial findings could proceed without the reporter’s record or a properly designated partial record under Texas Rule of Appellate Procedure 34.6.
• Whether complaints about alleged improper contact with jurors, denial of mistrial, and refusal to impose sanctions could be reviewed without the reporter’s record.
• More broadly, whether the absence of the reporter’s record required the court to presume that the omitted evidence supported the divorce decree.

Rules Applied

The court relied on familiar but unforgiving appellate principles:

• The appellant bears the burden to present a sufficient record showing error requiring reversal. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990).
• In the absence of a reporter’s record, the court of appeals presumes the omitted evidence supports the trial court’s judgment. Cody Tex., L.P. v. BPL Expl., Ltd., 619 S.W.3d 735, 742–43 (Tex. App.—San Antonio 2019, pet. denied).
• An appellate court cannot assess harmful error without the relevant record. See 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.).
• Legal- and factual-sufficiency challenges generally require the entire evidentiary record, unless the appellant properly proceeds on a partial reporter’s record under Texas Rule of Appellate Procedure 34.6.
• Documents found 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.).
• Harmful-error review remains governed by Texas Rule of Appellate Procedure 44.1(a).
• On the family-law side, the court referenced Texas Family Code section 156.101(a)(1) in connection with the appellant’s argument that a prior SAPCR order could be modified only upon proof of material and substantial change.

Application

The court applied those rules in a straightforward but important way. The appellant attempted to attack multiple merits rulings in the decree, including rulings she said violated a premarital agreement and a prior SAPCR order. But the court could not determine from the clerk’s record alone whether the premarital agreement was ever admitted into evidence, properly authenticated, objected to, or judicially noticed. Nor could it evaluate what trial evidence, if any, supported the appellant’s factual assertions that the agreement had been breached or that the decree materially deviated from enforceable contractual terms.

The same defect defeated the appellant’s conservatorship arguments. She relied in part on an earlier SAPCR order, but that order was not in the appellate record. Without the order itself, the court could not compare its terms to the decree under review, much less determine whether the trial court committed reversible error in entering different conservatorship or possession provisions.

The court then addressed sufficiency complaints. Because a legal- or factual-sufficiency challenge requires the appellate court to review the evidence considered by the trial court or jury, the absence of the reporter’s record was fatal. The appellant had neither filed the full record nor invoked the partial-record procedure in a way that would allow meaningful review. As a result, the court could not examine whether the evidence supported the jury’s findings on the tort claims or whether the evidence justified conservatorship-related rulings.

The same logic carried over to complaints about alleged improper juror contact, denial of mistrial, and refusal to sanction opposing counsel. Those are intensely record-bound complaints. Without a transcript showing what happened, what objections were made, what evidence was offered, and how the trial court ruled, the appellate court had no basis to find abuse of discretion or harm.

The court also rejected any effort to substitute appellate factual assertions for an actual record. Rule 38.1(g) did not save the appellant, both because factual statements must be supported by record references and because the appellee expressly disputed unsupported factual assertions. The opinion is therefore a useful answer to the recurring argument that unchallenged factual recitations in a brief can fill gaps left by a missing reporter’s record. They cannot.

Holding

The court held that the appellant failed to carry her burden to present a sufficient appellate record. Because no reporter’s record was filed, the court presumed the omitted evidence supported the divorce decree. That presumption foreclosed reversal on complaints that depended on the trial evidence.

The court specifically held that challenges to the decree’s treatment of a premarital agreement and alleged inconsistency with a prior SAPCR order failed because the appellate record did not permit meaningful review. The court could not determine whether the agreement was in evidence, what its operative terms were in the context of the trial, whether the prior SAPCR order supported the appellant’s position, or whether any deviation amounted to harmful error.

The court further held that legal- and factual-sufficiency complaints failed as a matter of appellate procedure because sufficiency review requires the evidentiary record. Without the reporter’s record, the court could not review the jury’s findings on tort claims or evidence-based family-law determinations.

Finally, the court held that other trial-management and evidentiary complaints requiring scrutiny of what occurred in open court likewise could not support reversal in the absence of a reporter’s record. The decree was affirmed.

Practical Application

For family law trial and appellate counsel, Terrell should be read as a strategic warning on three fronts.

First, in any divorce appeal involving fact-intensive complaints, the reporter’s record is not optional. If your appellate theory concerns best interest, material and substantial change, waste, reimbursement, economic contribution themes, fault-based disproportionate division, characterization disputes tried to the bench or jury, attorney’s fees proof, valuation evidence, or tort claims joined with the divorce, you should assume the appeal will fail without the record unless the issue is purely legal and apparent on the face of the clerk’s record.

Second, Terrell is a reminder that filed documents are not self-proving appellate evidence. Family lawyers often assume that because a premarital agreement, inventory, mediated settlement agreement, prior order, social-study report, or business record appears in the clerk’s file, the appellate court can rely on it as evidence. Not so. If the complaint depends on the evidentiary status of the document, the record must show admission, judicial notice, or some other proper basis for consideration.

Third, this opinion underscores the practical overlap between indigency disputes and merits preservation. When a party contests ability to pay for the reporter’s record and loses, appellate counsel must immediately pivot to damage control. That may include securing funds, narrowing issues to clerk’s-record points, evaluating whether a partial record is viable under Rule 34.6, or candidly reassessing whether the appeal remains tenable.

In concrete family-law settings, Terrell matters here:

• Divorce property division: A claimed abuse of discretion in dividing community property usually depends on the evidence of value, fault, reimbursement, waste, and economic circumstances. No reporter’s record means presumed support for the division.
• Conservatorship and possession: Complaints about best interest, designation of primary residence, geographic restrictions, modification-type findings, and possession schedules typically require review of testimony and exhibits. Without the reporter’s record, those complaints generally collapse.
• Premarital and partition agreements: Enforcement arguments often depend on authentication, admission, interpretation in context, and evidence of breach or waiver. A clerk’s-record attachment will rarely be enough.
• Divorce-related tort claims: When a decree incorporates defamation, assault, fraud, IIED, or other tort findings between spouses, sufficiency review cannot proceed without the evidentiary record.
• Jury misconduct, mistrial, sanctions, and evidentiary rulings: These are among the least likely complaints to survive a missing reporter’s record because both abuse-of-discretion and harm analysis depend on what occurred at trial.

Checklists

Securing the Appellate Record in a Family Law Case

• Determine immediately whether the contemplated issues require a reporter’s record.
• Calendar the deadline to request the reporter’s record and designate exhibits.
• Confirm in writing which court reporter covered each trial setting, hearing, and bench conference.
• Obtain written cost estimates early, especially in multi-day divorce trials.
• If inability to pay is an issue, pursue Rule 145 relief promptly and develop the evidentiary record on ability to afford costs.
• If the indigency challenge fails, act immediately to arrange payment rather than waiting for appellate deadlines to expire.
• File written proof that payment has been made or arranged if the appellate court orders it.
• Verify that the reporter’s record has actually been requested for all relevant dates and proceedings.

Preserving Family-Law Issues for Review

• Make sure key exhibits—premarital agreements, prior SAPCR orders, inventories, valuations, and damages evidence—are formally admitted or judicially noticed.
• Obtain rulings on objections, offers of proof, and requests for mistrial or sanctions.
• Request that sidebars, bench conferences, and in-chambers rulings be on the record where possible.
• For jury issues, ensure that alleged misconduct or improper contact is supported by admissible evidence and a developed record.
• Preserve sufficiency complaints through the appropriate trial and post-judgment motions when required.
• Tie appellate complaints to specific portions of the record rather than to general grievances about unfairness.

Evaluating Whether a Clerk’s-Record-Only Appeal Is Viable

• Identify whether the issue is truly a pure question of law.
• Ask whether the complained-of error appears on the face of the judgment, pleadings, charge, verdict, or written orders.
• Confirm that the issue does not depend on testimony, admitted exhibits, objections, or context from trial.
• Consider whether a missing document in the clerk’s record can be supplemented.
• Abandon or narrow evidence-dependent issues if the reporter’s record cannot be obtained.
• Explain candidly to the client that most attacks on divorce decrees are not viable without the reporter’s record.

Using a Partial Reporter’s Record Strategically

• Consider Texas Rule of Appellate Procedure 34.6 when only discrete issues will be raised.
• File a proper statement of issues if proceeding on a partial record.
• Limit appellate points to those that can be fairly reviewed on the designated portions.
• Confirm that the selected portions actually contain the testimony, objections, and rulings necessary for review.
• Avoid hybrid briefing that asserts broad sufficiency or abuse-of-discretion complaints unsupported by the designated record.

Handling Premarital-Agreement and Prior-Order Issues

• Ensure the premarital agreement is authenticated and admitted at trial, not merely attached to pleadings.
• Request findings or clear rulings on enforceability if the agreement is contested.
• Include any prior SAPCR order, modification order, or relevant associated record in the appellate record.
• Build a record showing exactly how the decree allegedly departs from the prior order or agreement.
• Address harm explicitly: explain why the alleged deviation probably caused an improper judgment.

Citation

Terrell v. Duke, Nos. 04-23-00144-CV & 04-23-00635-CV, memorandum opinion (Tex. App.—San Antonio Aug. 12, 2026, no pet.) (affirming divorce decree and applying presumption that omitted reporter’s record supports the judgment).

Full Opinion

Read the full opinion here

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