Opinion
Appellate case number: 01-15-00619-CV
11-24-2015
Darrell J. Harper v. The State of Texas
ORDER Trial court case number: 2014-74062 Trial court: 165th District Court of Harris County
On August 6 and 17, 2015, appellant, Darrell J. Harper, proceeding pro se and incarcerated, filed affidavits of indigence for appellate costs in this Court in the above-referenced appeal, which the Clerk of this Court referred to the trial clerk to be filed. See TEX. R. APP. P. 20.1(a)(2), (c)(1), (d), 25.1(a). On October 22, 2015, the trial clerk filed a clerk's record in this Court with, among other things, the Notice to Trial-Court Clerk Regarding Affidavit of Indigence Filed in Court of Appeals, issued by the Clerk of this Court and filed in the trial court on August 18, 2015, attaching appellant's affidavit of indigence. There was no timely contest to appellant's affidavit of indigence for appellate costs filed in the trial court included in the clerk's record. See id. 20.1(e)(1).
Accordingly, the allegations in the affidavit of indigence are deemed true, and appellant is entitled to proceed without advance payment of appellate costs. See TEX. R. APP. P. at 20.1(f). However, the clerk's record was already filed on October 22, 2015, and on July 21, 2015, the court reporter's information sheet stated that there was no reporter's record taken. Thus, the Clerk of this Court is ORDERED to deem the appellant indigent and that he is allowed to proceed on appeal without advance payment of costs for purposes of the appellate filing fee and the clerk's record fee.
In addition, on November 3, 2015, appellant filed a two-page document entitled, "Appellant's Brief," which is a prematurely-filed brief because it did not contain any references or citations to the clerk's record and it does not comply with Texas Rule of Appellate Procedure 38.1. See TEX. R. APP. P. 38.1, 38.6(a)(1). Thus, the Court sua sponte STRIKES appellant's brief because it does not comply with Texas Rule of Appellate Procedure 38.1. See id. 38.1, 38.9(a).
Specifically, the brief does not contain:
(1) a list of all the parties to the trial court's judgment and addresses of all trial and appellate counsel;TEX. R. APP. P. 38.1(a)-(k).
(2) a table of contents;
(3) an index of authorities;
(4) a brief statement of the case with references to the appellate record;
(5) a statement regarding oral argument;
(6) a list of the issues presented for appeal;
(7) a statement of facts supported by record references;
(8) a summary of the argument;
(9) a clear and concise argument for the contentions made with appropriate citations to legal authorities and the appellate record
(10) a short conclusion clearly stating the nature of the relief sought; and
(11) an appendix.
Accordingly, appellant is ORDERED to file an amended brief containing all necessary references to the clerk's record filed with this Court and conforming to Rule 38.1. See TEX. R. APP. P. 38.1(a)-(k), 38.7, 38.9(a). Appellant's amended brief is due to be filed with this Court no later than 30 days after the date of this order. See TEX. R. APP. P. 38.6(a), (d), 38.7.
Appellee's brief, if any, will be due no later than 30 days after the filing of appellant's amended brief. See TEX. R. APP. P. 38.6(b).
It is so ORDERED. Judge's signature: /s/ Laura Carter Higley
[×] Acting individually [ ] Acting for the Court
Date: November 24, 2015