Joseph Stewart, III v. Anthony Holmes ( 2006 )

NO. 07-06-0388-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 13, 2006

______________________________



JOSEPH STEWART, III, APPELLANT

V.

ANTHONY HOLMES, ET AL., APPELLEES



_________________________________

FROM THE 87TH DISTRICT COURT OF ANDERSON COUNTY;

NO. 87-10358; HONORABLE DEBORAH OAKES EVANS, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Joseph Stewart, III, an inmate proceeding pro se, perfected this appeal from the trial court's order dismissing his suit for denial of postage which he alleged was in violation of his constitutional rights. The clerk's record was filed on October 9, 2006. Stewart's brief was due to be filed on November 8, 2006, but has yet to be filed. Also, no motion for extension of time has been filed. By letter from the Clerk of this Court dated November 14, 2006, Stewart was notified of the defect and directed to file by November 28, 2006, either his brief or a response reasonably explaining the failure to do so. Stewart was further directed to show that Appellees, Anthony Holmes, et al., have not been significantly injured by the delay. The Court noted that failure to comply might result in dismissal pursuant to Rule 38.8(a) of the Texas Rules of Appellate Procedure. Stewart did not respond and the brief remains outstanding.

Accordingly, we dismiss this appeal for want of prosecution and failure to comply with a notice from the Clerk of this Court requiring a response or other action in a specified time. See Tex. R. App. P. 38.8(a)(1), 42.3(b) and (c).

Patrick A. Pirtle

Justice

l be "deprived of his right to process his appeal" in cause number 07-06-00428-CV. Relator has timely filed notice of appeal in that cause. The order appealed from in that cause was signed on October 16, 2006. Consequently, the appellate record in that case is not yet due. See Tex. R. App. P. 35.1. As a result, relator has no legal requirement to file any documents in cause number 07-06-00428-CV at this time and, thus, has not shown how he is being "deprived of his right to process his appeal" by any denial of indigent supplies by respondents.

As relator seeks issuance of a writ of mandamus against parties outside of this Court's jurisdictional reach and fails to establish that the writ is necessary to enforce this Court's jurisdiction, we dismiss the petition for want of jurisdiction.

Mackey K. Hancock

Justice