Amar Gueye v. Luz Torres ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
October 18, 2021
No. 04-21-00353-CV
Amar GUEYE,
Appellant
v.
Luz TORRES,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 2021CV02073
Honorable J Frank Davis, Judge Presiding
ORDER
Sitting: Irene Rios, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
The clerk of this court received appellant’s brief on October 4, 2021. 1 The brief does not
comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1.
Specifically, the brief violates Rule 38.1 in that it does not contain:
(1) a list of all parties and counsel;
(2) a table of contents;
(3) an index of authorities;
(4) a statement of the case;
(5) a brief statement of the issues presented;
(6) a statement of facts with record references;
(7) a summary of the argument;
(8) proper legal argument with appropriate citation to authorities and the appellate
record; and
(9) a proper appendix containing a copy of the judgment appealed.
1
We note that appellant, who is pro se and indigent, filed his brief before the reporter’s record was filed. On
September 29, 2021, the clerk of this court notified the court reporter by letter that the reporter’s record was overdue
and required her to file the reporter’s record no later than October 29, 2021.
See id. 38.1(a) (requiring a complete list of all parties to judgment); 38.1(b) (requiring a table of
contents with references to the pages of the brief); 38.1(c) (requiring an index of authorities
indicating the pages of the brief where the authorities are cited); 38.1(d) (requiring the brief to
state concisely the nature of the case); 38.1(g) (requiring a statement of facts with record
references); 38.1(h) (requiring the brief to contain a succinct, clear, and accurate statement of the
arguments made in the body of the brief); 38.1(i) (requiring a clear and concise argument with
appropriate citations to authorities and the record); and 38.1(k) (requiring an appendix containing
a copy of the judgment or other appealable order).
The appellate rules require the text of the brief to be double-spaced and the typeface to be
no smaller than 14-point. See TEX. R. APP. P. 9.4 (d),(e). The appellate rules also require a
certificate of compliance stating the number of words contained in the brief. See id. 9.4(i)(3).
Here, the typeface is less than 14-point and much of the brief is not double-spaced. Additionally,
the brief does not contain a certificate of compliance.
Although substantial compliance with Rule 38.1 is generally sufficient, we may order a
party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38.1. See id. R.
38.9(a). We conclude that the defects described above constitute flagrant violations of Rule 38.1
and Rule 9.4.
Accordingly, we ORDER appellant’s brief stricken and ORDER appellant to file an
amended brief in this court on or before November 22, 2021. However, if appellant requires
more time to file an amended brief, he may file a motion for extension of time to file his brief.
Any amended brief filed by appellant must correct the violations listed above and fully
comply with Rule 38.1 and Rule 9.4 of the Texas Rules of Appellate Procedure. If the amended
brief does not comply with this order, we “may strike the brief, prohibit appellant from filing
another, and proceed as if had failed to file a brief.” See id. 38.9(a); see also id. 38.8(a)
(authorizing this court to dismiss the appeal if the appellant fails to timely file a brief). Even if
we do not strike the amended brief and prohibit appellant from filing another brief, we may find
that any issues raised by appellant are waived due to inadequate briefing and overrule those
issues. See, e.g., Marin Real Estate Partners v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San
Antonio 2011, no pet.).
If appellant timely files an amended brief that complies with this order, the appellee’s
brief will be due thirty days after appellant’s brief is filed. See TEX. R. APP. P. 38.6(b).
_________________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 18th day of October, 2021.
___________________________________
MICHAEL A. CRUZ, Clerk of Court