Baoquoc Tran Nguyen v. State ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00372-CR
BAOQUOC TRAN NGUYEN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Criminal Court No. 6
Tarrant County, Texas
Trial Court No. 1546160, Honorable John Weeks, Presiding
April 15, 2020
CONCURRING OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
I concur with the result reached by the majority.
Because this appeal was transferred by the Texas Supreme Court from the
Second Court of Appeals to the Seventh, I apply the precedent of the Second Court in
arriving at my decision. See TEX. R. APP. P. 41.3 (stating that in cases transferred by the
Supreme Court between courts of appeals, the recipient court must decide the case in
accordance with the precedent of the transferring court when their respective precedent
conflicts). Such precedent requires an appellant’s brief to contain clear and concise
arguments supporting the contentions made, coupled with appropriate citation to
authorities and the record. Hollis v. Acclaim Physician Grp., Inc., No. 02-19-00062-CV,
2019 Tex. App. LEXIS 6414, at *9–10 (Tex. App.—Fort Worth July 25, 2019, no pet.);
TEX. R. APP. P. 38.1(i) (stating same). This has been construed as requiring substantive
analysis discussing the facts and authorities “as may be requisite to maintain the point at
issue.” Hollis, 2019 Tex. App. LEXIS 6414, at *10. More importantly, an appellate court
has no duty to brief issues inadequately briefed by an appellant. Id.
At play here is the legal intersection not between two minor unpaved roads in a
rural county but rather between major legal interstates. Those interstates are the First
Amendment of the United States Constitution, Sections Eight and Twenty-Seven of the
Texas Constitution, and § 42.07 of the Texas Penal Code. U.S. CONST. amend. I (stating
that “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the Government for a redress of
grievances”); TEX. CONST. art. 1, § 8 (stating that “[e]very person shall be at liberty to
speak, write or publish his opinions on any subject, being responsible for the abuse of
that privilege; and no law shall ever be passed curtailing the liberty of speech or of the
press”); TEX. CONST. art.1, § 27 (stating that “[t]he citizens shall have the right, in a
peaceable manner, to assemble together for their common good; and apply to those
invested with the powers of government for redress of grievances or other purposes, by
petition, address or remonstrance”); TEX. PENAL CODE ANN. § 42.07(a) (West 2018)
(stating that a person commits a crime if, with intent to harass, annoy, alarm, abuse,
torment, or embarrass another he causes the telephone of another to ring repeatedly or
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makes repeated telephone communications in a manner reasonably likely to harass,
annoy, alarm, abuse, torment, embarrass, or offend another). Fulfilling the mandate
discussed in Hollis and imposed by Rule 38.1(i) when the appellate complaint implicates
such legal interstates requires more than mere allusion to dated authority, quotation from
noted scholars, and rather summary analysis. Yet, this is what appellant offered us here.
Nowhere in his briefing did he mention the plethora of recent legal authority
touching upon the issues tossed at our courthouse door. Nothing was said of recent
precedent from our Court of Criminal Appeals such as Wilson v. State, 448 S.W.3d 418
(Tex. Crim. App. 2014), or Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010). The
same is also true of similar precedent from numerous other courts of appeals. See, e.g.,
Lebo v. State, 474 S.W.3d 402 (Tex. App.—San Antonio 2015, pet. ref’d); Ex parte
Hinojos, No. 08-17-00077-CR, 2018 Tex. App. LEXIS 10530 (Tex. App.—El Paso Dec.
19, 2018, pet. ref’d) (not designated for publication); Ex parte Reece, No. 11-16-00196-
CR, 2016 Tex. App. LEXIS 12649 (Tex. App.—Eastland Nov. 30, 2016, pet. ref’d) (mem.
op., not designated for publication); Blanchard v. State, No. 03-16-00014-CR, 2016 Tex.
App. LEXIS 5793 (Tex. App.—Austin June 2, 2016, pet. ref’d) (mem. op., not designated
for publication). Nor was effort made to update any of his arguments with the most recent
authority addressing the topic from the Fort Worth Court of Appeals in Ex parte Barton,
586 S.W.3d 573 (Tex. App.—Fort Worth 2019, pet. granted), or from this very court in Ex
parte Sanders, No. 07-18-00335-CR, 2019 Tex. App. LEXIS 2813 (Tex. App.—Amarillo
Apr. 8, 2019, pet. granted) (mem. op., not designated for publication).
One cannot deny that the few authorities appellant cited spoke of the right to speak
freely and petition the government. But, none said anything of § 42.07(a) of the Penal
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Code and its effect upon those constitutional rights, while Scott, Wilson, Lebo, Hinojos,
Barton, and the many others did. And, all of them exemplify that the topic being debated
deserves and requires more analysis and development than that offered by appellant.
One of the touchstones to Rule 38.1(i) is “appropriate citation.” That connotes a
sliding scale influenced by the nature of the issue at hand. No doubt, simple legal matters
may entail lesser citation and discussion. Grave matters require more. The matter at
hand tends toward the grave end of the scale while the product offered by appellant fell
towards the simple end. His few authorities and de minimis analysis of the interplay
between the penal statute and constitutional provisions involved here are not enough to
meet the above touchstone. And, again, an appellate court has no obligation to add what
appellant omitted. Consequently, I view the issues of appellant as inadequately briefed
and, therefore, waived.1
Brian Quinn
Chief Justice
Do not publish.
1
I would also hold that his trial objections would have sufficed to preserve the complaint had it been
adequately briefed. See Mandrell v. State, No. 02-02-375-CR, 2004 Tex. App. LEXIS 5642, at *5–6 (Tex.
App.—Fort Worth June 4, 2004, no pet.) (mem. op., not designated for publication) (the Fort Worth Court
noting that it liberally construes objections when deciding preservation issues).
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