Opinion
No. 08-19-00110-CV
10-12-2020
Claudia BROWN, Justice of the Peace for Precinct 4, Place # 1, Appellant, v. The STATE of Texas, Appellee.
Claudia L. Brown, for Appellant. James E. Nichols, for Appellee.
Claudia L. Brown, for Appellant.
James E. Nichols, for Appellee.
Before Alley, C.J., Rodriguez, and Palafox, JJ.
OPINION
YVONNE T. RODRIGUEZ, Justice
The Bell County Attorney, on behalf of the State of Texas, Appellee, filed a petition for the removal of Claudia Brown, Appellant, from her office as Justice of the Peace for Bell County, Texas, Precinct 4, Place 1. In a three-day jury trial, a jury found that Brown committed various instances of official misconduct or incompetence in the performance of her duties, as alleged by the State, and in accordance with the jury's affirmative findings, the trial court entered a judgment and order of removal that resulted in Brown's removal from office. Although Brown was represented by trial counsel, she proceeded to appeal pro se from the judgment. However, Brown never requested a clerk's record or reporter's record for her appeal, and while the clerk apparently filed the clerk's record on the clerk's own initiative, no reporter's record has been submitted to this Court to aid our decision. Based on this lack of a reporter's record and various briefing deficiencies by Brown, the State argues that this Court cannot review the arguments in Brown's pro se brief.
We hold that Brown's appellate issues are both waived by inadequate briefing and unreviewable without a reporter's record. Consequently, we affirm the trial court's judgment.
This case was transferred to us from the Third Court of Appeals pursuant to the Texas Supreme Court's docket equalization efforts. We follow the precedents from that Court where they might conflict with our own. Tex.R.App.P. 41.3.
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I. BACKGROUND
On behalf of the State, the Bell County Attorney filed a petition for the removal of Brown from her office as Justice of the Peace for Bell County, Texas, Precinct 4, Place 1. As the basis for Brown's removal, the petition alleged that she committed six acts of official misconduct by misfeasance or malfeasance, two acts of official misconduct by nonfeasance, and thirteen instances of incompetency that demonstrated she was "unfit and unable to promptly and properly discharge ..." her official duties due to a serious physical or mental defect not existing at the time of her election. In response to the petition, Brown filed, among other things, a general denial.
A three-day jury trial was held, and the trial court charged the jury with seventeen questions requiring the jury to find whether it was true or not true by a preponderance of the evidence that Brown committed official misconduct or was incompetent in the performance of her duties. The jury returned a unanimous verdict of true to each of those questions, except for a single question to which the jury unanimously answered not true. In accordance with the jury's verdict, the trial court entered a final judgment and order of removal that ordered Brown immediately removed from office. The judgment recited that a record of the testimony was taken by a court reporter. From this judgment, Brown filed a pro se notice of appeal. Although a clerk's record was filed without Brown having made any request for it, Brown did not request a reporter's record, and none was filed. Nonetheless, Brown attached several documents to her pro se appellate brief. Later, Brown filed a first addendum to her brief containing numerous documents "to consider in adjudicating this appeal." We issued a letter stating that we received the addendum but would not file it because the documents within did not appear to have been made a part of the record. Brown then filed a second similar addendum containing a portion of the reporter's record. We then issued another letter informing her that we would not consider attached documents and giving her notice that we lacked a reporter's record, if, it was necessary to the appeal:
The Court is not authorized to consider attachments to a party's brief unless those attachments are part of the official appellate record. In an appeal, the appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record. TEX.R.APP.P. 34.1. The clerk's record has been filed and the parties have filed their respective briefs. A reporter's record has not been filed. Therefore, the Court has not filed and will not consider the addendum[.]
Subsequently, Brown filed two more similar addendums and a letter asserting various factual contentions, and we issued an additional letter giving notice of Brown's noncompliance with the Rules of Appellate Procedure. We eventually issued a final letter stating that we would submit the case on the briefs and that the clerk should be notified at once if the case will not be submitted for any reason. Still without the filing of the reporter's record, we set the case for submission.
II. ISSUES ON APPEAL
In Brown's pro se brief, she fails to identify any clearly defined issues for this Court. For that matter, the "Issues" section of her brief does not identify whether she asserts one issue or multiple issues, and it instead recites factual assertions. Nonetheless, Brown clearly argues that we should reverse the trial court's judgment and order of removal, and we perceive the following arguments in her brief: (1) the evidence is insufficient to support the judgment; (2) the judgment removing her from officer violates double jeopardy, due to a prior public reprimand and order of additional education she previously received; and (3) the judgment was improper, due to some "suspicion of collusion" to remove her from office that stemmed from "bias due to [her] gender, race, and political affiliation."
In response, the State argues that we should reject Brown's contention for the following reasons: (1) she waived any potential issues through inadequate briefing; and (2) by failing to present this Court with a reporter's record to support her contentions, she both failed to show this Court that she preserved her complaints for appellate review and failed to show the evidence is insufficient to support the judgment.
III. DISCUSSION
A. Whether Brown Waived Any Potential Issues by Inadequate Briefing
1. Applicable Law
A pro se litigant is held to the same standards as licensed attorneys 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.). If pro se litigants were not required to comply with applicable rules of procedure, they would be given an unfair advantage over parties represented by counsel. Hughes , 2016 WL 5349380, at *2 ; Robb , 417 S.W.3d at 590. And as relevant here, a party's brief must "state concisely all issues or points presented for review" and "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX.R.APP.P. 38.1(f), (i).
2. Application
As noted above, Brown failed to concisely state her potential issues presented for review. But more importantly, in the entirety of Brown's pro se brief, she cites to no authority at all in support of her claims. Likewise, she makes no citations to the clerk's record or the unfiled reporter's record. Based on these briefing deficiencies, we hold that Brown waived any potential issues in her appeal by failing to adequately brief them. See TEX.R.APP.P. 38.1(f), (i) ; see also, e.g., 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 Appellant waived his issues by inadequate briefing where he failed to support his issues with clear and concise argument for the contentions made, with appropriate citations to authorities and to the record); Hughes , 2016 WL 5349380, at *2 (same). We would overrule her issues for this reason alone. However, we ultimately overrule her issues for a more fundamental reason, as explained below.
B. Whether Brown's Arguments are Reviewable without a Reporter's Record
1. Applicable Law
If the clerk's record has been filed but the court reporter has not filed a reporter's record because the appellant failed to request 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)(1). Thus, an appellate court will be limited to considering only those issues that do not require a reporter's record for decision if the Appellant does not afford the court with a reporter's record after a reasonable opportunity to cure. See, e.g., In Interest of M.D.G. , 527 S.W.3d 299, 303-04 (Tex.App.--El Paso 2017, no pet.) ; Caldwell v. Goodfellow Caldwell , No. 03-10-00292-CV, 2012 WL 5476848, at *1-2 (Tex.App.--Austin Nov. 8, 2012, pet. denied)(mem. op.).
2. Application
In this case, the clerk's record has been filed but no reporter's record has been filed. Furthermore, to the extent that documents attached to Brown's filings were not in the record, we may not consider Brown's numerous attachments on appeal. See Hughes , 2016 WL 5349380, at *2 (citing TEX.R.APP.P. 34.1) ; see also Save Our Springs All., Inc. v. City of Dripping Springs , 304 S.W.3d 871, 892 (Tex.App.--Austin 2010, pet. denied) ("We are limited to the appellate record provided.").
In response to Brown's attempt to supplement the appellate record with documents attached to her brief and to addendums, this Court issued multiple letters to Brown informing her that we could not consider those attachments as part of the record and that those submissions did not comply with the Rules of Appellate Procedure. More importantly, we expressly gave Brown notice that "the appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record[,]" that "[a] reporter's record has not been filed[,]" and that we would submit the appeal on the briefs unless the clerk was notified that the case should not be submitted for any reason. Based on our correspondence with Brown, we hold that she was given sufficient notice of the record deficiency and a reasonable opportunity to cure. See TEX.R.APP.P. 37.3(c)(1) ; see also Gardner v. Comm'n for Lawyer Discipline , No. 03-97-00275-CV, 1998 WL 161346, at *1-2 (Tex.App.--Austin Apr. 9, 1998, no pet.)(not designated for publication) (holding that the Court gave Appellant notice of a deficient record and a reasonable opportunity to cure it where: (1) the Court notified Appellant by letter that the reporter's record was unfiled; and (2) the Court, having at some point received no further correspondence from Appellant, notified her that the cause would be submitted for decision); M.D.G. , 527 S.W.3d at 303-04 (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). Accordingly, we are limited to considering only those issues not requiring the reporter's record for decision. See, e.g., M.D.G. , 527 S.W.3d at 303-04 ; Caldwell , 2012 WL 5476848, at *1-2.
Turning to Brown's contentions in this appeal, Brown bases her overall argument that we should reverse the trial court's judgment and order of removal on the following: (1) insufficient evidence; (2) double jeopardy; and (3) "suspicion of collusion[.]" Yet, the merits of all three contentions cannot be decided without a reporter's record of the evidence that was presented at Brown's three-day jury trial. Thus, her potential issues on appeal are not reviewable. 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 evidence supported the trial court's decision.")[Citations omitted]. In addition to waiver by inadequate briefing, we therefore overrule any of Brown's potential issues presented for review for this reason, as well.
IV. CONCLUSION
The trial court's judgment is affirmed.