Opinion
No. 07-04-0541-CV
October 19, 2005.
Appeal from the 181st District Court of Randall County, No. 51,823-B, Hon. John B. Board, Presiding.
Panel D: Before QUINN, C.J., REAVIS and CAMPBELL, JJ.
ON MOTION FOR REHEARING
Pending before the court is the motion of Marshall Cross, Danny Johnson and Lisa Johnson (collectively referred to as Cross) for rehearing. Cross again raises the contention of "trial by consent" and posits that we erred in concluding that they had not preserved the issue for our review. We overrule the motion.
While the subject was first broached in the reply brief of Cross it went unmentioned in their appellants' brief. Furthermore, authority holds that issues raised for the first time in a reply brief generally may not be considered. Bankhead v. Maddox, 135 S.W.3d 162, 163-64 (Tex.App.-Texarkana 2004, no pet.); Krumb v. Porter, 152 S.W.2d 495, 496-97 (Tex.Civ.App.-San Antonio 1941, writ ref'd); see Penley v. C.L. Westbrook, Jr., 146 S.W.3d 220, 227 (Tex.App.-Fort Worth 2004, pet. filed) (holding that the Texas Rules of Appellate Procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in the appellee's briefs but not raised by the appellant's original brief). Moreover, even if we had the authority to consider the claim, our review of the record reveals it to be meritless.
Accordingly, we overrule Cross' motion for rehearing.