Oscar Dean Davis v. Walter Earl Stephenson, Sr.

• Court: Court of Appeals of Texas
• Decided: November 30, 2011
• Docket: 06-11-00073-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________

No. 06-11-00073-CV ______________________________

OSCAR DEAN DAVIS, Appellant

V.

WALTER EARL STEPHENSON, SR., Appellee

On Appeal from the County Court at Law Cass County, Texas Trial Court No. CCL-11-C-167

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION

Oscar Dean Davis, appellant, filed his notice of appeal July 20, 2011.

Davis filed a motion to extend time “to complete appeal,” which this Court granted to

September 21 for the filing of the record. Davis is not indigent and is therefore responsible for

payment of the clerk’s record and reporter’s record. See TEX. R. APP. P. app. C (B)(1); 20.1.

The clerk’s record was due on September 21, 2011. There is no information to indicate

Davis has made efforts to have the clerk’s record filed with this Court. On October 21, 2011, we

contacted Davis by letter, giving him an opportunity to cure the various defects, and warning him

that if we did not receive an adequate response within ten days, this appeal would be subject to

dismissal for want of prosecution. See TEX. R. APP. P. 42.3(b), (c).

On September 23, 2011, we received Davis’ brief in this matter, which we returned to him,

explaining that the clerk’s record had not been filed and that his brief would be due thirty days after

the clerk’s record had been filed. Appellate courts must base their decisions on the record as

made and brought forward, not on a record that should have been made or that could have been

made. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). Although the

jurisdiction of a court of appeals is invoked by timely filing documents showing a bona fide intent

to appeal, see Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997), we cannot decide a case

without an adequate record, and with no clerk’s record, we have nothing to review, and therefore

we cannot find error.

2 We affirm the judgment of the trial court.

Jack Carter Justice

Date Submitted: November 29, 2011 Date Decided: November 30, 2011