Brent Shockley v. Krisha Marie Yalk

• Court: Court of Appeals of Texas
• Decided: February 14, 2023
• Docket: 07-22-00128-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00128-CV

BRENT SHOCKLEY, APPELLANT

V.

KRISHA MARIE YALK, APPELLEE

On Appeal from the 233rd District Court Tarrant County, Texas Trial Court No. 233-708854-21, Honorable Kenneth Newell, Presiding

February 14, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant challenges the trial court’s entry of a lifetime protective order and award

of attorney’s fees against him for prosecution of the same. Because he has waived any

potential error due to inadequate briefing even after an opportunity to cure the defects,

we strike his brief and dismiss this appeal for want of prosecution.

Appellant filed a brief on July 29, 2022. The brief did not comply with Rule 38.1(g)

and (i) of the Texas Rules of Appellate Procedure and we ordered him to file a corrected brief in compliance with the applicable rules. He filed another brief which is also

substantially out of compliance with relevant briefing requirements. Notably, he has no

citation to the record in his fact or argument sections and the brief lacks appropriate

citation to authority and/or substantive application of the facts of the case to guiding law

throughout his argument sections.

Error can be waived by inadequate briefing. Fredonia State Bank v. Gen. Am. Life

Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994). Appellate briefing requirements are

compulsory. M&E Endeavours LLC v. Air Voice Wireless LLC, Nos. 01-18-00852-CV,

01-19-00180-CV, 2020 Tex. App. LEXIS 6906, at *17–18 (Tex. App.—Houston [1st Dist.]

Aug. 17, 2020, no pet.) (mem. op.). We are not required, or allowed, to pick through the

record to find and develop potential issues for the parties—even pro se litigants. See

Roberts for Roberts v. City of Texas City, No. 01-21-00064-CV, 2021 Tex. App. LEXIS

9623, at *4 (Tex. App.—Houston [1st Dist.] Dec. 2, 2021, no pet.) (mem. op.) (appellate

court may not assume the role of advocate for a party). An appellate brief is meant to

educate the court regarding the issues and assist in resolving the case. Id. at *2–3.

The Rules of Appellate Procedure control the required content and organization of

an appellant’s brief. TEX. R. APP. P. 38.1. Among other things, the rules require an

argument that is clear and concise with appropriate citations to the record and relevant

precedent. See Irisson v. Lone Star Nat’l Bank, No. 13-19-00239-CV, 2020 Tex. App.

LEXIS 8553, at *6–7 (Tex. App.—Corpus Christi Oct. 29, 2020, no pet.) (mem. op.)

(“When an appellant’s brief fails to contain clear and concise argument for the contentions

made with appropriate citations to authorities, the appellate court is not responsible for

doing the legal research that might support a party’s contentions.”). 2 As previously mentioned, a pro se litigant is held to the same standard as an

attorney and must comply with the Texas Rules of Appellate Procedure. See Yeldell v.

Denton Cent. Appraisal Dist., No. 02-07-00313-CV, 2008 Tex. App. LEXIS 6639, at *6

(Tex. App.—Fort Worth Aug. 29, 2008, pet. denied) (mem. op.) (“[A]ll parties appearing

in the appellate courts of Texas must conform to the Texas Rules of Appellate

Procedure.”). Appellant’s pro se status does not alter this requirement. See Mansfield

State Bank v. Cohn, 573 S.W.2d 181, 184 (Tex. 1978) (“[N]o basis exists for differentiating

between litigants represented by counsel and litigants not represented by counsel in

determining whether the rules of procedure must be followed.”).

The brief before the Court is disorganized, rambling, at times belligerent, and

incredibly hard to decipher. It has three untitled and unenumerated argument “sections.”

We do not address arguments presented in such a manner. See Massey v. Royall, No.

14-02-01260-CV, 2004 Tex. App. LEXIS 719, at *1 (Tex. App.—Houston [14th Dist.] Jan.

27, 2004, no pet.) (mem. op.) (holding that incomprehensible issue could not be

addressed). The brief has no citation to the record. “A reviewing court is not required to

search the appellate record, with no guidance from the briefing party, to determine if the

record supports the party’s argument.” In re S.R.V., No. 04-17-00556-CV, 2018 Tex. App.

LEXIS 836, at *9–10 (Tex. App.—San Antonio Jan. 13, 2018, no pet.) (mem. op.) (citing

Keyes Helium Co. v. Regency Gas. Servs., L.P., 393 S.W.3d 858, 861–62 (Tex. App.—

Dallas 2012, no pet.); Rubsamen v. Wackman, 322 S.W.3d 745, 746 (Tex. App.—El Paso

2010, no pet.); Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 489 (Tex.

App.—Fort Worth 2004, no pet.)).

3 After providing a party a chance to correct briefing error, appellate courts may

strike a non-compliant brief and proceed as if no brief was filed. See TEX. R. APP.

P. 38.9(a) (“If another brief that does not comply with this rule is filed, the court may strike

the brief, prohibit the party from filing another, and proceed as if the party had failed to

file a brief.”). If a party fails to file a brief, we may dismiss for want of prosecution. TEX.

R. APP. P. 38.8(a)(1). As such, we strike Appellant’s corrected brief because of flagrant

non-compliance with briefing rules.

The appeal is dismissed for want of prosecution. TEX. R. APP. P. 42.3(b), (c).

Per Curiam