Affirmed and Memorandum Opinion filed August 30, 2018.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00779-CV

                           DIERDRE VIA, Appellant
                                         V.
        LARRY WOODROW AND WARREN TREPTOW, Appellees

                    On Appeal from the 212th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 16-CV-1385

                  MEMORANDUM OPINION

      The trial court dismissed Dierdre Via’s suit against Larry Woodrow and
Warren Treptow for want of prosecution. In a single issue on appeal, Via asks, “Did
the trial court err as a matter of law by refusing to rule on Plaintiff’s Motion to
Reinstate?” Via prays for this court to “REVERSE this matter to the Trial Court for
hearing and a ruling on Plaintiff’s Motion to Reinstate.”
      Via’s brief does not contain any citations to the record, let alone a citation to
support her contention that the trial court refused to rule on the motion. Contrary to
Via’s assertion, the record contains an order denying Via’s motion to reinstate. The
order is signed by the trial court and dated October 2, 2017.

      Both appellees dispute Via’s contention that the trial court failed to rule on
the motion, and Treptow notes in his brief that Via failed to cite to the record, which
“constitutes waiver on appeal.” Via filed a “response” to Woodrow’s brief and again
failed to cite to the record. Via has not responded to Treptow’s argument that Via
waived error.

      An appellant has the burden to show error. Budd v. Gay, 846 S.W.2d 521, 524
(Tex. App.—Houston [14th Dist.] 1993, no writ) (citing Christiansen v. Prezelski,
782 S.W.2d 842, 843 (Tex. 1990)); see also Garcia v. Sasson, 516 S.W.3d 585, 590
(Tex. App.—Houston [1st Dist.] 2017, no pet.) (noting that an appellant has “the
ultimate burden to bring forth a record showing reversible error”). The burden is on
an appellant to demonstrate that the record supports the appellant’s contentions and
to make accurate references to the record to support complaints on appeal. Russell
v. City of Bryan, 919 S.W.2d 698, 706 (Tex. App.—Houston [14th Dist.] 1996, writ
denied); see also Tex. R. App. 38.1(g), (i) (statement of facts and argument must be
supported with references and citations to the record). “The failure to cite to relevant
portions of the trial record waives appellate review.” Rendleman v. Clarke, 909
S.W.2d 56, 59 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d).

      When an appellant’s brief is deficient, it is a “settled rule that an appellate
court has some discretion to choose between deeming a point waived and allowing
amendment or rebriefing.” Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284 (Tex. 1994). An appellate court may find waiver if the appellant
has had notice of briefing defects and an opportunity to rebrief, yet the appellant

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fails to rebrief. See Rendleman, 909 S.W.2d at 59 (holding that the appellant had
notice of defect and an opportunity to rebrief when the appellee pointed out the
defect and the appellant subsequently failed to rebrief); see also Stevens v. Stevens,
809 S.W.2d 512, 513–14 (Tex. App.—Houston [14th Dist.] 1991, no writ) (same).

      As noted above, the record before this court appears to contradict Via’s
allegation on appeal that the trial court refused to rule on her motion to reinstate. Via
does not direct this court to any part of the record to support the alleged error. Via
has had ample notice of the briefing defect and the opportunity to rebrief, yet she
has failed to do so. Accordingly, we exercise our discretion to deem Via’s issue
waived. See Rendleman, 909 S.W.2d at 59.

      Via’s issue is overruled. The trial court’s judgment is affirmed.




                                         /s/       Ken Wise
                                                   Justice


Panel consists of Justices Boyce, Donovan, and Wise.




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