Kathy L. Kacal v. Rebecca A. Cohen

Kathy L. Kacal v. Rebecca A. Cohen, et al.

IN THE

TENTH COURT OF APPEALS

No. 10-99-143-CV

     KATHY L. KACAL,

                                                                              Appellant

     v.

     REBECCA A. COHEN, ET AL.,

                                                                              Appellees

From the 40th District Court

Ellis County, Texas

Trial Court # 55,228

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Kathy L. Kacal filed suit against Appellees for defamation, discriminatory employment practices, and related causes of action. The court granted Appellees’ motion for summary judgment and rendered a take nothing judgment against Kacal.

      Kacal timely filed a notice of appeal by depositing her notice in the mail on May 16, 1999. See Tex. R. App. P. 9.2(b)(1). The reporter’s record was filed in this Court on June 1, and the clerk’s record was filed on July 5. The Court has granted Kacal one extension of time for filing her brief. Although her brief was due on September 7, no appellant’s brief has been filed. Id. 38.6(a).

      Appellate Rule 38.8(a)(1) provides that if an appellant fails to timely file her brief, the Court may:

dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant’s failure to timely file a brief.

Id. 38.8(a)(1).

      More than thirty days have passed since Kacal's brief was due. We notified her of this defect by letter on September 16. Id. 42.3, 44.3. She has not responded to our letter by requesting an extension or by showing grounds for continuing the appeal, nor has she provided a reasonable explanation for failing to file a brief. Id. 42.3, 38.8(a)(1). Therefore, this appeal is dismissed for want of prosecution. Id. 38.8(a)(1).

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed for want of prosecution

Opinion delivered and filed October 13, 1999

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mal style='text-align:justify;line-height:200%'>   After reviewing the evidence in light of the deference afforded the trial court, we find the trial court did not err in determining Davenport’s testimony to be not credible and Stuart’s testimony to be credible.  On this basis then, the trial court did not err in its determination that Johnson lacked standing to contest the search.  Because we find the trial court did not err, we need not address Johnson’s remaining arguments under his first issue.  Accordingly, Johnson’s first issue is overruled.

Article 38.23 Instruction

            Johnson argues in his second issue that the trial court erred in denying his request for a jury charge instruction under article 38.23 of the Texas Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). 

            A defendant's right to the submission of jury instructions under Article 38.23(a) is limited to genuine, disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.  Madden v. State, 242 S.W.3d 504, 509-510 (Tex. Crim. App. 2007).  To raise a disputed fact issue warranting an Article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question.  Id. at 513.  In this context, a cross-examiner's questions do not create a conflict in the evidence, although the witness's answers to those questions might.  Id. 

            In his brief, Johnson does not state what affirmative evidence put the legality of the search into question.  As the El Paso Court has appropriately stated:

It is the Appellant's burden to discuss [] assertions of error.  An appellate court has no duty--or even right--to perform an independent review of the record and applicable law to determine whether there was error.  Were we to do so,  … we would be abandoning our role as neutral adjudicators and become an advocate for that party.

 

Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).  The requirement is no different for appellants in criminal cases.  Accordingly, this issue is inadequately briefed and is overruled.  Tex. R. App. P. 38.1; McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001). 

Conclusion

            Having overruled each issue on appeal, we affirm the trial court’s judgment.

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Affirmed

Opinion delivered and filed October 20, 2010

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