Peggy Sue Butler v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
March 8, 2018
No. 04-17-00676-CV
Peggy Sue BUTLER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. 16620A
Honorable N. Keith Williams, Judge Presiding
ORDER
Appellant’s brief was originally due January 19, 2018. Neither the brief nor a motion for
extension of time was filed at that time. On February 1, 2018, we ordered appellant to file, on or
before February 12, 2018, her appellant’s brief and a written response reasonably explaining her
failure to timely file the brief.
On February 12, 2018, appellant mailed a motion requesting an extension of time to file
her brief, and the motion was filed in our court on February 14, 2018. See TEX. R. APP. P. 9.2(b)
(outlining when documents filed by mailed are timely filed). Thereafter, on February 16, 2018,
appellant mailed her appellant’s brief, which was filed in our court on February 20, 2018. The
brief, however, does not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See
id. R. 38.1. Specifically, the brief violates Texas Rule of Appellate Procedure 38.1 in that it does
not contain:
(1) a table of contents;
(2) an index of authorities;
(3) a proper statement of the case, stating concisely the nature of the case;
(4) a brief statement of the issues presented, setting out what errors were
allegedly committed by the trial court;
(5) include a statement of facts with record references;
(6) a proper summary of the argument;
(7) proper legal argument with appropriate citation to authorities and the
appellate record; or
(8) a certificate of service;
(9) a certificate of compliance; or
(10) a proper appendix.
See id. R. 38.1(b) (requiring table of contents), 38.1(c) (requiring index of authorities), 38.1(d)
(requiring statement of case), 38.1(f) (requiring statement of issues presented), 38.1(g) (requiring
statement of facts with record reference), 38.1(h) (requiring summary of argument, 38.1(i)
(requiring argument with appropriate citation to authority and record), and 38.1(k) (requiring
appendix with copy of judgment or other appealable order, any jury charge and verdict form, any
findings of fact and conclusions of law, and text of applicable rules, regulations, ordinances,
statutes, constitutional provisions, or other law on which argument is based, or any contract or
other document central to argument); see also id. R. 9.4(i)(3) (requiring that computer generated
documents include a certificate of compliance stating the number of words in document); see
also id. R. 9.5 (requiring filing party to serve copy of filing on all parties and include a certificate
of service stating he has complied with such service).
Although substantial compliance with Rule 38.1 is generally sufficient, this court may
order a party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38.1. See id.
R. 38.9(a). We conclude that the formal defects described above constitute flagrant violations of
Rule 38.1.
Accordingly, we GRANT appellant’s request for an extension to file her brief, but
ORDER appellant’s brief stricken. We further ORDER appellant to file an amended brief in
this court on or before April 9, 2018. The amended brief must correct the violations listed above
and fully comply with Rule 38.1 of the Texas Rules of Appellate Procedure as well as Rules 9.4
and 9.5 of the Texas Rules of Appellate Procedure. See 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 appeal if appellant fails to timely file brief). Even if we
do not strike the brief and prohibit appellant from filing another brief, we may find that any
issues raised by appellant are waived due to inadequate briefing, and overrule those issues. See,
e.g., Marin Real Estate Partners v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no
pet.).
We recognize that appellant represents herself on appeal, i.e., she is acting pro se.
However, the law is clear that pro se litigants are held to the same standards as licensed attorneys
and must comply with all applicable rules of procedure, including the rules governing appellate
briefs. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). A pro se
litigant is required to properly present her case on appeal just as she is required to properly
present her case to the trial court. Id. Accordingly, we will not apply different standards merely
because an appeal is brought by a litigant acting without advice of counsel. Id.
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).
We order the clerk of this court to serve a copy of this brief on appellant and all counsel.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 8th day of March, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court