David W. Howell v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 13, 2021
• Docket: 04-21-00119-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas May 13, 2021

No. 04-21-00119-CV

David W. HOWELL, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 20-593 Honorable Kirsten Cohoon, Judge Presiding

ORDER

Appellant filed his brief on May 4, 2021, but Appellant’s brief does not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1. Specifically, the brief has, among others, the following defects: • the Statement of the Case is three pages long, discusses the facts, includes arguments, and has no record references, contra id. R. 38.1(d); • the Statement of Facts contains arguments and has no citations to the appellate record; contra id. R. 38.1(g); • each issue in the Argument section begins by listing case names with their citations, and the application sections include some case names alone, but supplying case names without the reporter volume number, reporter abbreviation, and the specific page referred to to support propositions are not “appropriate citations to authorities,” contra id. R. 38.1(i); • the Argument section contains no citations to either the clerk’s or reporter’s records, contra id. R. 38.1(i); and • there is no Certificate of Compliance, contra id. R. 9.4(i)(3). This court may order a party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38. See id. R. 38.9(a). We conclude that the defects described above constitute flagrant violations of Rule 38. Therefore, we STRIKE Appellant’s brief and ORDER Appellant to file an amended brief within TEN DAYS of the date of this order. The amended brief must correct all the violations listed above and fully comply with the applicable rules. See, e.g., id. R. 9.4, 9.5, 38.1. If the amended brief does not comply with this order, we “may strike the brief, prohibit [Appellant] from filing another, and proceed as if [Appellant] had failed to file a brief.” See id. R. 38.9(a); see also id. R. 38.8(a) (authorizing this court to dismiss an appeal if an appellant fails to timely file a brief). If Appellant timely files a brief that complies with this order, Appellee’s brief will be due thirty days after Appellant’s brief is filed. See TEX. R. APP. P. 38.6(b).

_________________________________ Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 13th day of May, 2021.

___________________________________ MICHAEL A. CRUZ, Clerk of Court