Ex Parte D.K. ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00020-CV
___________________________
EX PARTE D.K.
On Appeal from the 213th District Court
Tarrant County, Texas
Trial Court No. D213-E-16934-20
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
I. Introduction
Appellant D.K., appearing pro se, appeals—for the second time—from the trial
court’s expunction order. In her first appeal, Appellant argued that the trial court
abused its discretion by denying her a hearing and by granting only a partial
expunction because the expunction order drafted by the State omitted two
respondents—the Federal Bureau of Investigation and Local News Only.1 There, we
affirmed in part, reversed in part, and remanded the case to the trial court for the sole
purpose of holding a hearing to determine whether Local News Only qualifies as an
agency that should be added to the expunction order. 2 On remand, the trial court held
a hearing as instructed and found that “Local New[s] Only is not an agency or entity
that should be added to the expunction order in this case.” Appellant now appeals the
trial court’s additional finding. 3 We will affirm.
See generally Ex parte D.K., No. 02-20-00304-CV, 2021 WL 3205057 (Tex.
1
App.—Fort Worth, July 29, 2021, no pet.) (mem. op.).
2
Id. at *5.
3
In her brief, Appellant does not set forth a list of numbered issues, and she
appears to attempt to rehash certain issues—such as the omission of the FBI from the
expunction order’s list of respondents—that were already addressed in her previous
appeal. To the extent Appellant’s brief raises any issues that were already addressed in
her prior appeal, we consider our previous opinion to be the law of the case and
decline to revisit those matters. See Estate of Tillotson, 647 S.W.3d 447, 454–55 (Tex.
App.—Texarkana 2022, pet. denied).
2
II. Background
In 2017, Appellant was arrested in Grapevine and charged with criminal
trespass. Appellant’s charge was quashed or dismissed because she completed a
statutory pretrial intervention program. See Tex. Gov’t Code Ann. §§ 76.001(4),
76.011.
In 2020, Appellant filed a petition for expunction of her criminal records,
which she later amended to include a list of law enforcement agencies and public
entities that she had reason to believe had files or records related to her arrest and that
were subject to expunction. Among the agencies and entities that she listed, Appellant
included the FBI and Local News Only. In September 2020, the trial court entered an
order granting the expunction, but the list of respondents included in the order
contained neither the FBI nor Local News Only.
Appellant appealed from the expunction order, arguing that the trial court
abused its discretion by denying her a hearing and by omitting the FBI and Local
News Only from the list of respondents. 4 On appeal, we held that the trial court did
not err in omitting the FBI from the list of respondents, but we remanded the case to
the trial court to determine whether Local News Only qualifies as an agency that
should be added to the expunction order. 5
4
Ex parte D.K., 2021 WL 3205057, at *1.
5
Id. at *3–5.
3
On remand, the trial court held a hearing as instructed and entered a written
finding that “Local New[s] Only is not an agency or entity that should be added to the
expunction order in this case.” This second appeal followed.
III. Discussion
On appeal, Appellant contends that the trial court erred by finding that Local
News Only is not an agency that should be added to the expunction order.6 In
response, the State of Texas asserts that the trial court’s finding should be affirmed
because Appellant has failed to provide a reporter’s record or to file a brief complying
with the Texas Rules of Appellate Procedure and because the trial court complied
with this court’s previous remand order.
A. Did Appellant waive all potential issues through inadequate briefing?
A pro se litigant is held to the same standards as a licensed attorney and must
comply with applicable laws and rules of procedure. Hughes v. Armadillo Prop. for Lina
Roberts, No. 03-15-00698-CV, 2016 WL 5349380, at *2 (Tex. App.—Austin Sep. 20,
2016, no pet.) (mem. op.); Robb v. Horizon Comm. Improvement Ass’n, Inc., 417 S.W.3d
585, 590 (Tex. App.—El Paso 2013, no pet.). Were this not the case, pro se litigants
would be given an unfair advantage over parties represented by counsel. Hughes,
2016 WL 5349380, at *2; Robb, 417 S.W.3d at 590.
6
As previously noted, Appellant did not include a list of numbered issues in her
brief. See supra note 3.
4
Among the rules of procedure with which a litigant—even one acting pro se—
must comply are those setting forth the requirements for appellate briefs. See Tex. R.
App. P. 38.1–38.3. Of particular relevance here, an appellant’s brief must, among
other things, “state concisely all issues or points presented for review,” contain a
statement of pertinent facts “supported by record references,” “contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record,” and, in a civil case, include an appendix. Tex. R. App. P. 38.1(f),
(g), (i), (k).
Appellant’s brief is defective in many respects. It does not concisely—or
clearly—state the issues presented for review. It contains no record references 7 or
appendix and cites no relevant case law. Based on these briefing deficiencies, we hold
that Appellant waived any potential appellate issues. See Tex. R. App. P. 38.1; see also
McKinnon v. Wallin, No. 03-17-00592-CV, 2018 WL 3849399, at *2–3 (Tex. App.—
Austin Aug. 14, 2018, pet. denied) (mem. op.) (holding that pro se appellant had
waived his issues by inadequate briefing); Hughes, 2016 WL 5349380, at *2 (same).
In her brief, Appellant states that “[t]he Judicial district Court does not have
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record references. Therefore, plaintiff is unable to state facts with records of
references as it is stated on Rule 38.1 of Texas Appellate procedure. Plaintiff is only
provided with copies of the documents with filing dates numbers.” Appellant’s
meaning is unclear as the clerk’s record filed with the court included page numbers
clearly visible in the bottom righthand corner. In any event, Appellant, despite acting
pro se, was required to provide citations to the record to support her factual
statements and arguments, and the onus was on her to ensure that such citations were
included in her brief. See Tex. R. App. P. 38.1(g), (i); Hughes, 2016 WL 5349380, at *2;
Robb, 417 S.W.3d at 590.
5
B. Is Appellant’s issue reviewable without a reporter’s record?
Even if we were to set aside Appellant’s briefing defects, we must still overrule
Appellant’s sole issue because it is not reviewable without a reporter’s record. See
Brown v. State, 632 S.W.3d 75, 80 (Tex. App.—El Paso 2020, no pet.).
Under the rules of appellate procedure, if the clerk’s record has been filed, but
the court reporter has not filed a reporter’s record because the appellant failed to
either request or pay for it, an appellate court may—after first giving the appellant
notice and a reasonable opportunity to cure—decide those issues that do not require a
reporter’s record for a decision. Tex. R. App. P. 37.3(c); Bailey v. Bobay, No. 02-15-
00247-CV, 2016 WL 7010924, at *1 (Tex. App.—Fort Worth Dec. 1, 2016, no pet.)
(mem. op.); Caldwell v. Goodfellow Caldwell, No. 03-10-00292-CV, 2012 WL 5476848, at
*1 (Tex. App.—Austin Nov. 8, 2012, pet. denied) (mem. op.). In this case, while the
clerk’s record has been filed, no reporter’s record has been filed, and Appellant has
been given notice and a reasonable opportunity to cure.8 Accordingly, we will address
8
On March 21, 2022, after the court reporter responsible for preparing the
reporter’s record in this appeal informed the court that Appellant had not made
arrangements to pay for the reporter’s record, we sent a letter to Appellant advising
her that unless she provided proof of payment by March 31, 2022, we may consider
and decide those issues that do not require a reporter’s record for a decision. See Tex.
R. App. P. 37.3(c). Because Appellant failed to provide proof of payment by the
deadline, we sent her another letter dated April 5, 2022, notifying her that “[b]ecause
Appellant(s) failed to pay or make arrangements to pay for the reporter’s record, the
court will consider and decide those issues or points that do not require a reporter’s
record for a decision.” Id. Based on our correspondence with Appellant, we hold that
she was given sufficient notice of the record deficiency and a reasonable opportunity
to cure. See id.; In the Interest of M.D.G., 527 S.W.3d 299, 303–04 (Tex. App.—El Paso
6
only those issues not requiring the reporter’s record. See Caldwell, 2012 WL 5476848,
at *1 (citing Office of Pub. Util. Counsel v. Public Util. Comm’n, 878 S.W.2d 598, 599–
600 (Tex. 1994)).
The sole issue 9 raised in Appellant’s brief is whether the trial court erred in
finding that Local News Only is not an agency that should be added to the
expunction order. Yet, in the absence of a reporter’s record, we must presume that
the hearing was properly conducted and that the trial court was presented with
sufficient evidence to make its finding. See Hong Yan Li v. Daylong, No. 03-14-00664-
CV, 2016 WL 232130, at *2 (Tex. App.—Austin Jan. 13, 2016, no pet.) (mem. op.)
(“[Appellant] failed to cause a reporter’s record of the dismissal and sanctions
proceeding to be filed. We must therefore presume that the proceeding was properly
conducted and that the trial court was presented with sufficient evidence to make all
necessary findings.”); Sanadco Inc. v. Hegar, No. 03-14-00771-CV, 2015 WL 4072091, at
*2 (Tex. App.—Austin July 3, 2015, no pet.) (mem. op.) (“Without a reporter’s
record, we have no way to determine what evidence, if any, was adduced at the
hearing and, therefore, whether the trial court abused its discretion. We therefore
assume the underlying proceeding was properly conducted and that sufficient
2017, no pet.) (holding that appellant was given adequate notice of no reporter’s
record and a reasonable opportunity to cure where the court notified appellant that
his appeal would be submitted on the clerk’s record alone if he did not request the
reporter’s record and make arrangements to pay for it).
9
See supra notes 3, 6.
7
evidence supported the trial court’s decision.” (footnote and citations omitted)); see
also Ganesan v. Vallabhaneni, 96 S.W.3d 345, 352 (Tex. App.—Austin 2002, pet. denied)
(“Because [appellant] failed to file a complete reporter’s record or agreed statement of
the facts, his factual and legal sufficiency challenges must fail.”).
Assuming, as we must, that that the trial court was presented with sufficient
evidence to make its finding that Local News Only is not an agency that should be
added to the expunction order, we overrule Appellant’s sole issue.
IV. Conclusion
Having overruled Appellant’s sole issue, we affirm the trial court’s expunction
order.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: October 27, 2022
8