David Wright Ziebell v. Mariana B. Hernandez Corona

NO. 12-20-00181-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DAVID WRIGHT ZIEBELL, § APPEAL FROM THE 247TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
MARIANA B. HERNANDEZ CORONA,
APPELLEE § HARRIS COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
For two reasons, this appeal is being dismissed for failure to comply with the Texas Rules
of Appellate Procedure. 1 See TEX. R. APP. P. 42.3(c).
First, a party who is not excused by statute or the appellate rules from paying costs must
pay--at the time an item is presented for filing--whatever fees are required by statute or Texas
Supreme Court order. TEX. R. APP. P. 5. An appellate court may enforce Rule 5 by any order
that is just. Id. After giving ten days’ notice, an appellate court may dismiss an appeal because
the appellant failed to comply with a requirement of the appellate rules, a court order, or a notice
from the clerk requiring a response or other action within a specified time. TEX. R. APP. P.
42.3(c).
On July 16, 2020, Appellant, David Wright Ziebell, was notified that the filing fee in this
appeal is due and that the appeal would be subject to dismissal if not paid within twenty days of
the July 16 notice, unless Appellant is exempt from paying the filing fee or established an
inability to pay the filing fee. See TEX. R. APP. P. 5. On August 6, Appellant was informed that
the filing fee had not been paid and, unless Appellant notified the Court in writing on or before
September 7 as to why Appellant should not pay the fee, or paid the appellate filing fee on or
1
Pursuant to a docket equalization order issued by the Supreme Court of Texas on July 30, 2020, this
appeal has been transferred to this Court from the First Court of Appeals in Houston, Texas.
1
before September 7, the appeal may be dismissed. See TEX. R. APP. P. 42.3(c). The date for
remitting the filing fee passed, and Appellant has not paid the fee or otherwise shown that he is
excused from paying the fee. 2
Second, on August 12, the Clerk of this Court notified Appellant that the notice of appeal
failed to contain the information specifically required by Texas Rules of Appellate Procedure 9.5
and 25.1(d), as well as Section 51.017(a) of the Texas Civil Practice and Remedies Code. See
TEX. R. APP. P 9.5 (service), 25.1(d) (contents of notice); see also TEX. CIV. PRAC. & REM. CODE
ANN. § 51.017(a) (West Supp. 2019) (notice of appeal must be served on each court reporter
responsible for preparing reporter’s record). The notice warned that, unless Appellant filed a
proper notice of appeal on or before September 11, the appeal would be referred to the Court for
dismissal. This deadline passed and Appellant has not filed a compliant notice of appeal or
otherwise responded to this Court’s August 12 notice.
Because Appellant failed, after notice, to comply with Rule 5, Rule 9.5, Rule 25.1, and
Section 51.017(a), the appeal is dismissed. 3 See TEX. R. APP. P. 42.3(c) (on its own initiative
after giving ten days’ notice to all parties, appellate court may dismiss appeal if appeal is subject
to dismissal because appellant failed to comply with a requirement of these rules, a court order,
or a notice from the clerk requiring a response or other action within a specified time).
Opinion delivered October 14, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
2
The record does not indicate that Appellant was declared indigent.
3
We also note that Appellant failed to file the required docketing statement. See TEX. R. APP. P. 32.1.
Additionally, his brief is overdue. See TEX. R. APP. P. 38.8(a)(1).
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 14, 2020
NO. 12-20-00181-CV
DAVID WRIGHT ZIEBELL,
Appellant
V.
MARIANA B. HERNANDEZ CORONA,
Appellee
Appeal from the 247th District Court
of Harris County, Texas (Tr.Ct.No. 2019-15675)
THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that the
appeal be, and the same is, hereby dismissed; and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
3