Oscar Dean Davis v. Walter Earl Stephenson, Sr. ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00073-CV
______________________________
OSCAR DEAN DAVIS, Appellant
V.
WALTER EARL STEPHENSON, SR., Appellee
On Appeal from the County Court at Law
Cass County, Texas
Trial Court No. CCL-11-C-167
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Oscar Dean Davis, appellant, filed his notice of appeal July 20, 2011.
Davis filed a motion to extend time “to complete appeal,” which this Court granted to
September 21 for the filing of the record. Davis is not indigent and is therefore responsible for
payment of the clerk’s record and reporter’s record. See TEX. R. APP. P. app. C (B)(1); 20.1.
The clerk’s record was due on September 21, 2011. There is no information to indicate
Davis has made efforts to have the clerk’s record filed with this Court. On October 21, 2011, we
contacted Davis by letter, giving him an opportunity to cure the various defects, and warning him
that if we did not receive an adequate response within ten days, this appeal would be subject to
dismissal for want of prosecution. See TEX. R. APP. P. 42.3(b), (c).
On September 23, 2011, we received Davis’ brief in this matter, which we returned to him,
explaining that the clerk’s record had not been filed and that his brief would be due thirty days after
the clerk’s record had been filed. Appellate courts must base their decisions on the record as
made and brought forward, not on a record that should have been made or that could have been
made. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). Although the
jurisdiction of a court of appeals is invoked by timely filing documents showing a bona fide intent
to appeal, see Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997), we cannot decide a case
without an adequate record, and with no clerk’s record, we have nothing to review, and therefore
we cannot find error.
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We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: November 29, 2011
Date Decided: November 30, 2011
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