law-appeal-document-not-in-the-record-cannot-be-considered | errors on appeal
ATTACHMENT OF DOCUMENTS OUTSIDE THE RECORD TO
APPELLATE BRIEF
We cannot consider documents attached as appendices to briefs and must consider a case based
solely upon the record before the trial court. See Cherqui v. Westheimer Street Festival Corp., 116
S.W.3d 337, 342 n.2 (Tex. App.-- Houston [14th Dist.] 2003, no pet.); Nguyen v. Intertex, Inc., 93 S.W.
3d 288, 292-93 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
With limited exceptions [...] an appellate court may not consider matters outside the appellate
record. Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). The attachment of documents as exhibits or appendices to
briefs is not formal inclusion in the record on appeal; therefore, we cannot consider the documents
that are not included in the record. See Sowell v. The Kroger Co., 263 S.W.3d 36, 38 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
Further, the excerpts of Hellmold's testimony that U.S. Bank relies on were omitted from the record. Although
U.S. Bank appended to its brief a portion of Hellmold's deposition containing the excerpts, the appellees have
objected that this court should not consider documents outside the record. We agree. See Tex. R. App. P.
38.1(h); Worldpeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex.App.- Houston [14th
Dist.] 2005, pet. denied). Therefore, we do not consider U.S. Bank's references to Hellmold's deposition
testimony and opinions.
U.S. Bank N.A. v. Stanley (Tex.App.- Houston [14th Dist.] Sep. 15, 2009)(Brown)
(creditor's fiduciary duty claim against director) (Delaware law applied)
AFFIRMED: Opinion by Justice Brown
Before Justices Seymore, Brown and Sullivan
14-08-00567-CV U.S. Bank National Association, a National Banking Association, as Liquidating Trustee v.
John R. Stanley, Walter S. Piontek, Ted E. Davis, Ronald H. Benson, R. Gerald Bennett, and John Does I-X
Appeal from 133rd District Court of Harris County
Trial Court Judge: LAMAR MCCORKLE
In support of these contentions, the Cantus attach two purported court orders to their appellate brief.
Dominguez complains that the attached orders are not included in the record and therefore we should not
consider them. With limited exceptions not relevant here, an appellate court may not consider matters
outside the appellate record. Bencon Mgmt. & Gen. Contracting, 178 S.W.3d 198, 210-11 (Tex. App.-
Houston [14th Dist.] 2005, no pet.); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.-Houston [14th
Dist.] 2002, no pet.). Therefore, we do not consider the documents attached to the Cantus' appellate brief.
[3]
Cantu v. Dominguez (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Brown)
(vix lit no security posted, lawsuit against attorney, jurisdictional limits of county court)
AFFIRMED: Opinion by Justice Brown
Before Justices Seymore, Brown and Sullivan
14-08-00156-CV Tony Cantu and Elsa Cantu v. Ben Dominguez
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd
The document was admitted into evidence as Plaintiff's Exhibit 10, but it is not part of the record on appeal.
We therefore cannot consider the document itself even though Miller has included it in the appendix to her
brief. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex. App.- Houston [14th
Dist.] 2003, no pet.) (“[W]e cannot consider documents attached as appendices to briefs and must consider
a case based upon the record filed."). Accordingly, we have relied only on testimony about the document.
Langhorne v. Miller (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Seymore) (conversion of aircraft,
proof of conversion damages, market value, owner may testify, quantum meruit claim fails)
AFFIRMED: Opinion by Justice Seymore
Before Justices Seymore, Brown and Sullivan)
14-08-00081-CV Danny Langhorne v. Kay M. Miller
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey
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