Jesus Diaz De Leon D/B/A Payless Bail Bonds v. Olie S. Robinson

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

OLLIE S. ROBINSON, Appellant/Appellee, v. JESUS DIAZ DE LEON D/B/A PAYLESS BAIL BONDS, Appellee/Appellant.	§ § § § § §	No. 08-06-00181-CV Appeal from 210th District Court of El Paso County, Texas (TC # 2005-5938)

MEMORANDUM OPINION  

This double appeal is before the Court on its own motion for determination whether Olie S. Robinson's appeal should be dismissed for want of prosecution. Finding that Robinson has not filed a brief or a motion for extension of time, we dismiss his appeal. Only Robinson's appeal has been dismissed and the appeal of De Leon remains pending.

Robinson filed suit against De Leon seeking a declaratory judgment. When De Leon did not appear for trial, the trial court entered a default judgment in favor of Robinson on June 16, 2006. Robinson timely filed a notice of appeal and De Leon filed a motion for new trial. Following a hearing, the trial court denied the motion for new trial on July 26, 2006. De Leon filed notice of appeal on August 9, 2006. The clerk's record was filed on September 21, 2006 and the reporter's record was filed on November 20, 2006. Robinson attempted to file a brief on February 5, 2007 but the Court ordered that it not be filed because it was not prepared in accordance with Rule 38.1 of the Rules of Appellate Procedure. The corrected brief was due to be filed on or before February 26, 2007. However, a corrected brief has not been filed. The Clerk notified Robinson on April 5, 2007 that the brief had not been received and his appeal would be dismissed if he did not show grounds for continuing his appeal within ten days from the date of the notice. Robinson has not responded to the inquiry nor has he filed the brief or an extension request.

This court possesses the authority to dismiss an appeal for want of prosecution when the appellant has failed to file his brief in the time prescribed, and gives no reasonable explanation for such failure. Tex.R.App.P. 38.8(a)(1); Elizondo v. City of San Antonio, 975 S.W.2d 61, 63 (Tex.App.--San Antonio 1998, no writ). We have given notice of our intent to do so, requested a response if a reasonable basis for failure to file the brief exists, and have received none. We see no purpose that would be served by declining to dismiss Robinson's appeal at this stage of the proceedings. We therefore dismiss Robinson's appeal for want of prosecution pursuant to Tex.R.App.P. 38.8(a)(1) and 42.3(c).

De Leon's appeal remains pending and his brief has been filed. In order to correctly reflect the status of the parties on appeal following the dismissal of Robinson's appeal, the style of the appeal has been changed to Jesus Diaz De Leon d/b/a Payless Bail Bonds, Appellant v. Olie S. Robinson, Appellee. The cause number is unchanged. The parties are directed to utilize the new style in all future filings.

May 31, 2007 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.