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Click here for the full text of this decision FACTS:Omar Mendoza appeals from a post-answer default judgment forfeiting his interest in a Rolex watch, gold bracelet, and gold ring. The forfeiture occurred under the auspices of Texas Code of Criminal Procedure Chapter 59. Mendoza contends the default judgment should be reversed, because he was denied the ability to obtain a record of the forfeiture hearing, since the proceeding was not memorialized. HOLDING:Reversed and remanded. The failure to have a court reporter transcribe an evidentiary proceeding when the appellant and his counsel are absent from it constitutes reversible error. Sharif v. Par Tech Inc., 135 S.W.3d 869 (Tex. App. Houston [1st Dist.] 2004, no pet.). Here, the clerk’s record discloses that the state sued to forfeit the property mentioned earlier. Mendoza was joined as a party and filed a verified answer denying his opponent’s purported right to relief. When the proceeding ultimately came for trial, neither Mendoza nor his attorney of record was present. Thereafter, the trial court rendered the post-answer default judgment at issue. That the trial occurred on the designated date is undisputed, as is the fact that a court reporter transcribed neither the evidence presented nor the argument proffered at the hearing. These circumstances evince reversible error. The court rejects the state’s contention that no error arose because the trial court was able to grant judgment based solely on the state’s pleadings. A post-answer default judgment may not be entered based solely on the pleadings; rather, the plaintiff must offer evidence and prove his claim. To the extent that the trial court insinuated in its judgment that it received evidence at the trial, the proceeding was evidentiary in nature. “Without a record of the evidence, one can hardly claim with any semblance of authority that the evidence was insufficient. And, we opt not to require from Mendoza that which he cannot do (i.e. review the record and attack the sufficiency of the evidence) as a condition to preserving his complaint.” Gilley v. Anthony, 404 S.W.2d 60, 64 (Tex. Civ. App.-Dallas 1966, no writ) (holding that the law will not require one to do the fruitless). OPINION:Quinn, C.J.; Quinn, C.J., Reavis and Campbell, JJ.

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