Brent Shockley v. Krisha Marie Yalk ( 2023 )

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
4