NO. 12-04-00028-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TERRY GIBSON, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THOMAS BOCHOW, M.D. AND
EAST TEXAS EYE CARE ASSOCIATES, § SMITH COUNTY, TEXAS
APPELLEES
MEMORANDUM OPINION
Terry Gibson appeals following the trial court’s entry of its order granting Appellees Thomas Bochow, M.D. and East Texas Eye Care Associates’ no-evidence motion for summary judgment. Gibson raises one issue on appeal. We affirm.
Background
Gibson filed suit against Appellees alleging that Dr. Bochow committed medical negligence during the administration of a retro bulbar injection prior to a scleral buckling procedure to repair a detached retina in Gibson’s left eye, which caused nerve damage to the eye. Appellees objected to the testimony of Gibson’s expert, Dr. John Maggiano, and filed a brief in support thereof. The trial court sustained Appellees’ objection and excluded Dr. Maggiano’s testimony.
On November 11, 2003, Appellees filed a no-evidence motion for summary judgment. In their motion, Appellees argued that there was no evidence of record to support the issue of causation because (1) the trial court had excluded Dr. Maggiano’s testimony, and (2) “no evidence from the [record] indicate[s] that Dr. Bochow inserted the needle at the wrong angle....” The trial court granted Appellees’ no-evidence motion for summary judgment, and this appeal followed.
Appeal From Trial Court’s Order Granting No-evidence Summary Judgment
In his sole issue, Gibson argues that the trial court erred in sustaining Appellees’ objections to Dr. Maggiano’s testimony. But even assuming arguendo that we were to sustain Gibson’s sole issue, the outcome of the case would not differ.
The appellant's brief must state concisely all issues or points presented for review. Tex. R. App. P. 38.1(e); Bankhead v. Maddox, 135 S.W.3d 162, 163 (Tex. App.–Tyler 2004, no pet.). An issue presented in an appellant's brief is sufficient if it directs the attention of the appellate court to the error about which the complaint is made. See Bankhead, 135 S.W.3d at 163 (citing Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 839 (Tex. App.–Fort Worth 1999, no pet.)). Moreover, in support of an issue, the appellant's brief must contain a clear and concise argument and appropriate citations to authority and to the record. See Tex. R. App. P. 38.1(h). In its review of a civil matter, an appellate court has no discretion to fabricate an issue not raised in the appellant's brief, even though the court may perceive that the ends of justice require such a course. See Bankhead, 135 S.W.3d at 163–64; Krumb v. Porter, 152 S.W.2d 495, 496 (Tex. Civ. App.–San Antonio 1941, writ ref'd).
Here, Gibson failed to raise an issue concerning whether the trial court erroneously granted Appellees’ no-evidence motion for summary judgment and support such an issue with cogent argument. Even if we were to agree with Gibson and hold that the trial court improperly sustained Appellees’ objection to Dr. Maggiano’s testimony, such a decision on our part would not serve to undo the trial court’s decision to grant Appellees’ no-evidence motion for summary judgment. Gibson bore the responsibility to frame the issues for his appeal, see Tex. R. App. P. 38.1(e), and we cannot fabricate an issue that was not properly raised in Gibson’s brief. See Bankhead, 135 S.W.3d at 163–64.
Moreover, Gibson has failed to appropriately support each of the declarations of fact in his brief with proper citations to the record. The only arguable reference to the record directs this court to testimony of Dr. Maggiano “beginning at page 27.” A party asserting error on appeal bears the burden of showing that the record supports the contention raised and of specifying the place in the record where matters upon which he relies or of which he complains are shown. See Sisters of Charity of the Incarnate Word v. Gobert, 992 S.W.2d 25, 31 (Tex. App.–Houston [1st Dist.] 1997, no pet.). Where this burden is not carried, the party waives the issue. Id. As an appellate court, we are under no duty to make an independent search of the record for evidence supporting an appellant's position. See Curtis v. Commission For Lawyer Discipline, 20 S.W.3d 227, 231 n.2 (Tex. App.–Houston [14th Dist.] 2000, no pet.). Gibson’s reference to the starting-point of a portion of Dr. Maggiano’s testimony is too vague to meet the requirements of Rule 38.1(h).
Conclusion
For the foregoing reasons, Gibson has waived the issue of whether the trial court improperly granted Appellees’ no-evidence motion for summary judgment. As it has no bearing on the outcome of the case, we need not reach Gibson’s sole issue concerning whether the trial court improperly struck Dr. Maggiano’s testimony. We affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered September 8, 2004.
Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.
(PUBLISH)