Court of Appeals of Texas, Fourth District, San Antonio
the 224th Judicial District Court, Bexar County, Texas Trial
Court No. 2013-CI-00678 Honorable David A. Canales, Judge
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa,
Justice Irene Rios, Justice
appeal arises from the trial court's June 14, 2017 final
decree of divorce dividing the marital property between
Appellant Sylvia Gardner and Appellee Eric Gardner. Because
Appellant, who is representing herself on appeal, has twice
failed to file a brief that complies with the Texas Rules of
Appellate Procedure, we dismiss this appeal for want of
filed her original brief on December 15, 2017; the brief
failed to comply with the appellate rules. The brief
consisted of a fifteen-page document and a binder. The binder
was a 2½ inch, three-ring binder filled with personal
documents, photographs, receipts, and the like. The binder
was not prepared by the clerk or the reporter; there is no
indication the binder's contents were filed in the trial
court. The binder appeared to be an appendix to
Appellant's original brief.
December 20, 2017, we advised Appellant that her brief did
not comply with Rule 38.1 of the Texas Rules of Appellate
Procedure. See Tex. R. App. P. 38.1. Specifically,
the brief did not include Identity of Parties and Counsel,
Table of Contents, Index of Authorities, Statement of the
Case, Issues Presented, Statement of Facts, Summary of the
Argument, Argument, Prayer, or an Appendix that complied with
the Rules. See id. Further, no part of the brief
contained any citations to the record. Contra id. R.
38.1(i), (g). The great majority of the brief recited alleged
facts and complaints, but the brief offered only a few
sentences that might be construed to present a legal argument
describing how the trial court erred and why this court
should reverse the trial court's judgment. Contra
id. The brief did not recite the standard of review; it
did not contain an index of authorities, and it contained no
citations to any legal authorities. Contra id.
advised Appellant that, with respect to her binder,
"[t]he attachment of documents as exhibits or appendices
to briefs is not formal inclusion in the record on appeal
and, therefore, the documents cannot be considered."
Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer,
Inc., 178 S.W.3d 198, 210 (Tex. App.-Houston [14th
Dist.] 2005, no pet.); accord Mauldin v. Clements,
428 S.W.3d 247, 262 n.3 (Tex. App.-Houston [1st Dist.] 2014,
no pet.) (noting that "documents attached to briefs are
not part of the record of the case and cannot be
concluded the brief failed to comply with Rule 38, and we
struck Appellant's original brief. See id. R.
38.9(a). We ordered Appellant to file an amended brief that
corrected all of the errors listed and fully complied with
the applicable rules. See, e.g., id. R.
9.4, 9.5, 38.1. We warned Appellant that if the amended brief
did not comply with our 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).
January 4, 2018, Appellant filed a first amended brief, and
the next day, filed a second amended brief. Her second
amended brief consisted of 274 pages: fourteen pages for her
brief and 260 pages as an appendix. The amended brief does
not comply with Rules 9.4 and 38.1 of the Texas Rules of
Appellate Procedure. See Tex. R. App. P. 9.4, 38.1.
the brief contains most of the appropriate section headings,
but the required substance is missing. For example, the Table
of Authorities identifies procedural points in the underlying
suit instead of listing legal authorities such as statutes,
rules, and cases. Contra id. R. 38.1(c). The
Statement of Facts recites alleged facts without any
citations to the appellate record. Contra id. R.
38.1(g). The Argument section consists of three one-sentence
paragraphs; none contains any citations to authorities or to
the record. Contra id. R. 38.1(i).
brief does not list a single statute, rule, or case; it does
not contain a single citation to the appellate record; and it
does not present any legal issue supported by argument for
this court to review. Contra id. R. 38.1. The brief
is wholly inadequate to present any questions for appellate
review. See Ruiz v. State, 293 S.W.3d 685, 693 (Tex.
App.-San Antonio 2009, pet. ref'd); Robert L. Crill,
Inc. v. Bond, 76 S.W.3d 411, 423 (Tex. App.-Dallas 2001,
necessarily conclude Appellant's second amended brief
fails to comply with the Texas Rules of Appellate Procedure
or our December 20, 2017 order. See Tex. R. App. P.
42.3. As we warned Appellant we would do if her amended brief
did not comply with the Rules and our December 20, 2017
order, we strike Appellant's second amended brief,
prohibit her from filing another brief in this appeal, and
dismiss this appeal for want of prosecution. See
Tex. R. App. P. 9.4(i)(2), 38.8(a)(1), 38.9(a), 42.3(b).