Frederick O. Silver v. Toyota Motor Manufacturing Texas, Inc. ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
August 26, 2019
No. 04-19-00409-CV
Frederick O. SILVER,
Appellant
v.
TOYOTA MOTOR MANUFACTURING TEXAS, INC., ET AL.,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-05365
Honorable Rosie Alvarado, Judge Presiding
ORDER
By order dated August 6, 2019, the trial court clerk was ordered to file a clerk’s record
“containing only those documents necessary to review the trial court’s order on ability to afford
costs which should include the appellant’s affidavits of indigence, any contests or responses, and
the trial court’s order.” Appellant has filed a motion asserting it is “impossible for [him] to file
an accurate brief” because the clerk’s record filed pursuant to this court’s order does not contain;
(1) his “second/new Statement of inability to afford Court cost . . . as directed by the order
signed on 04/05/2019 by Judge;” and (2) “Written Contested affidavit filed by defendant or
clerk.”
Although we presume the trial court clerk included all documents filed in the trial court
that were responsive to our prior order, the reporter’s record reflects appellant filed a second
statement of inability on April 11, 2019, which is not contained in the clerk’s record. It is
therefore ORDERED that appellant’s motion is GRANTED IN PART. The trial court clerk is
ORDERED to file no later than ten days from the date of this order: (1) a supplemental clerk’s
record containing the statement of inability filed on April 11, 2019; and (2) a written notification
certifying no contests or responses were filed in the trial court. The clerk of this court is
ORDERED to provide appellant with copies of the supplemental clerk’s record and written
notification immediately upon receipt of the filings.
By order dated August 21, 2019, this court struck appellant’s first brief noting several
deficiencies. On August 22, 2019, appellant filed an amended brief which does not correct the
deficiencies noted in the prior order other than to delete any reference to Rule 18a of the Texas
Rules of Civil Procedure. Notwithstanding these deficiencies, we will not strike appellant’s
amended brief and will not order appellant to file a second amended brief. However, appellant
is advised that we may ultimately conclude that appellant has waived his appellate complaints
due to inadequate briefing. See Lott v. First Bank, No. 04-13-00311-CV, 2014 WL 4922896,
at *4 (Tex. App.—San Antonio Oct. 14, 2014, no pet.) (holding the appellant waived any
appellate complaint by failing to comply with the briefing rules set out in Rule 38.1 of the
Texas Rules of Appellate Procedure).
Because appellant’s motion states it was “impossible for [him] to file an accurate brief”
because the statement of inability he filed in the trial court on April 11, 2019 was missing from
the clerk’s record, appellant is ORDERED to file a written advisory in this court no later than
ten days from the date the supplemental clerk’s record is filed stating whether he intends to file
a second amended brief.
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 26th day of August, 2019.
___________________________________
Keith E. Hottle,
Clerk of Court