                                                                                    ACCEPTED
                                                                                03-14-00670-CV
                                                                                        5515528
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                            6/2/2015 4:04:16 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                       NO. 03-14-00670-CV

                  IN THE COURT OF APPEALS                       FILED IN
                                                         3rd COURT OF APPEALS
              FOR THE THIRD DISTRICT OF TEXAS                AUSTIN, TEXAS
                       AUSTIN, TEXAS                     6/2/2015 4:04:16 PM
                                                           JEFFREY D. KYLE
                                                                 Clerk

                        MARY E. ALLEN,
                          Appellant,

                                v.

                WELLS BRANCH SELF STORAGE,
                         Appellee.



             On Appeal from the County Court at Law #2
                     Of Travis County, Texas


                      BRIEF OF APPELLEE


COUNSEL:
Connie N. Heyer
1122 Colorado St.
Ste. 313
Austin, Texas 78701
Telephone: (512) 474-6901
Facsimile: (512) 474-0717
E-mail: connieheyer@niemannlaw.com

Oral Argument Not Requested
                 IDENTITY OF PARTIES AND COUNSEL

Petitioner/Plaintiff:

      Mary E. Allen

Counsel for Petitioner/Plaintiff:

      Mary E. Allen, Pro Se
      General Delivery
      823 Congress, Ste. 150
      Austin, Texas 78701
      Telephone: (512) 701-8080

Respondent/Counter-Plaintiff:

      Wells Branch Self-Storage

Counsel for Respondent/ Counter-Plaintiff:

      Connie N. Heyer
      Texas State Bar No. 00794373
      1122 Colorado St., Ste. 313
      Austin, Texas 78701
      Telephone: (512) 474-6901
      Facsimile: (512) 474-0717




                                     2
                                  TABLE OF CONTENTS

I.     STATEMENT OF FACTS ................................................................. 6

II.    SUMMARY OF ARGUMENT .......................................................... 7

III.   ARGUMENT ....................................................................................... 8

       A. NO JUSTICIABLE QUESTION WAS PRESENTED TO
           THIS COURT ............................................................................. 8

        B. APPELLANT WAIVED ARGUMENT ON APPEAL ............... 10

        C.     EVEN IF A JUSTICIABLE QUESTION WERE
               PRESENTED AND APPELLANT HAS NOT
               WAIVED ARGUMENT ON APPEAL, APPELLANT
               DID NOT ARGUE ANY REVERSIBLE ERROR .................. 10

IV.    CONCLUSION .................................................................................. 11

V.     APPENDIX ........................................................................................ 13

       A. TRIAL COURT’S JUDGMENT (C-1-CV-14-007235) ........TAB A

       B. TEXAS RULE OF APPELLATE PROCEDURE 38.1 .......... TAB B

       C. TEXAS RULE OF APPELLATE PROCEDURE 44.1 .......... TAB C




                                                    3
                                 TABLE OF AUTHORITIES

RULES

Tex. R. App. P. 44.1 ................................................................................. 7, 10

Tex. R. App. P. 38.1 ..................................................................................... 10

CASES

Benefit Trust Life Insurance Company v. Baker, 487 S.W.2d 406
(Tex. Civ. App.—Waco 1972, no writ) .......................................................... 7

Bullock v. American Heart Ass’n, 360 S.W.3d 661
(Tex. App.—Dallas 2012, pet. denied) ......................................................... 10

Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex. 1992) ........................... 9

Fiduciary Mortgage Co. v. City Nat’l Bank, 762 S.W.2d 196
(Tex. App.—Dallas 1988, writ denied) .......................................................... 9

Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d 858
(Tex. App.—Dallas 2013, no pet.) ................................................................ 10

Liberty Mutual Fire Ins. Co. v. McDonough, 734 S.W. 2d 66
(Tex. App.—El Paso 1987, no writ) ............................................................... 7

Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978) ......................... 8

Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277 (Tex. 1987) .............. 9

Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) ................................... 8




                                                      4
                       STATEMENT OF THE CASE

      This is an appeal from a judgment rendered by the County Court at

Law #2 of Travis County, Texas awarding damages for past-due self-storage

facility rent and attorney’s fees to Wells Branch Self Storage.

                             ISSUE PRESENTED

      1.     Did Appellant properly present a justiciable question that this

Court may rule on?

      2.     If Appellant’s brief is construed to present a justiciable question,

is there any reversible error?




                                       5
I.    STATEMENT OF FACTS

      On April 16, 2013, Mary E. Allen, Appellant, and Wells Branch Self

Storage, Appellee, entered into a rental agreement whereby Appellant would

rent a storage unit from Appellee. Clerk’s Record at 51–55.             Appellant

subsequently became delinquent on rental payments. Id. at 61.

      In February of 2014, Appellant filed suit in Justice Court, Precinct Two

of Travis County, Texas seeking damages and alleging that all rent amounts

had been paid on time and that an employee of Appellee had stolen a rental

payment. Id. at 80–82. In April of 2014, Appellee filed a counterclaim

alleging breach of contract and requesting damages for unpaid rent and

attorneys’ fees. Id. at 49–55. On July 11, 2014, the Justice Court rendered a

judgment in favor of Appellee awarding damages and attorneys’ fees. Id. at

42.

      Appellant filed a motion for new trial with the County Court at Law #2

of Travis County, Texas in September of 2014. Id. at 119–20. A jury trial

was not requested. Id. On October 16, 2014, the County Court at Law

rendered a judgment in favor of Appellee awarding damages and attorneys’

fees plus court costs and post judgment interest at a rate of 5% per annum on

all amounts due from the date of the judgment until paid. Id. at 122.

      Appellant filed notice of appeal on October 22, 2014. Id. at 123.



                                       6
II.   SUMMARY OF ARGUMENT

      Appellant makes no point of error in her brief, but rather merely

summarizes what she believes to be the facts of the case. Appellant’s brief

did not even assert that the evidence is factually or legally insufficient to

support the judgment of the trial court, but had it done so a justiciable issue

still would not exist.   A point of error in which the assertion is made that the

evidence is factually or legally insufficient to support the judgment of the trial

court does not present a justiciable question. Benefit Trust Life Insurance

Company v. Baker, 487 S.W.2d 406 (Tex. Civ. App.—Waco 1972, no writ). It

is essential that the complaint on appeal be with regard to specific special

issues and not the verdict generally.        Liberty Mutual Fire Ins. Co. v.

McDonough, 734 S.W. 2d 66, 70 (Tex. App.—El Paso 1987, no writ).

Appellant did not request or file findings of fact and conclusions of law that

the trial court relied on in support of the judgment rendered. There are no

specific issues or findings of which Appellant complains, thus Appellant’s

appeal must fail.

      Further, per Rule 44.1 of the Tex as Rules of Appellate Procedure, a

judgment may be reversed on appeal if the trial court made an error at law

that resulted in the rendition of an improper judgment or prevented the

appellant from properly presenting their case to the court of appeals.


                                        7
Appellant’s does not argue that the trial court made any reversible error and

instead merely reiterates conclusory factual allegations previously made to the

trial court.

       Therefore, this Court must affirm the trial court’s judgment because

Appellant presents no justiciable question to this Court. This Court must

affirm the trial court’s judgment even if Appellant has been construed to have

presented a justiciable question because Appellant does not allege any

reversible error.

III.   ARGUMENT

       A.      No Justiciable Question Was Presented to This Court

       While Appellant is a pro se litigant, Appellant must still comply with

applicable substantive laws and rules of procedure. See Mansfield State Bank

v. Cohn, 573 S.W.2d 181, 184 (Tex. 1978). Although the court may liberally

construe pro se pleadings and briefs, pro se litigants are still required to

comply with applicable laws and rules of procedure. See Wheeler v. Green,

157 S.W.3d 439, 444 (Tex. 2005). To allow otherwise would give pro se

litigants an unfair advantage over litigants represented by counsel.        See

Mansfield State Bank, 573 S.W.2d at 184.

       The standard of review to be used by this Court is whether the evidence

introduced at the trial court is legally and factually sufficient to support the



                                       8
trial court’s judgment. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852

(Tex. 1992) (stating legal and factual sufficiency of the evidence is applicable

to an appeal of a nonjury trial). When a party appeals from a nonjury trial, it

must complain of specific findings and conclusions of the trial court that it

believes are in error, because a general complaint against the trial court’s

judgment does not present a justiciable question. See Fiduciary Mortgage

Co. v. City Nat’l Bank, 762 S.W.2d 196, 197–98, 204 (Tex. App.—Dallas

1988, writ denied) (requiring findings of fact and conclusions of law to be

requested or filed for there to be a justiciable question). If an appellant does

not request or file findings of fact and conclusions of law and does not

complain of a specific finding of fact, the court of appeals must presume that

all questions of fact were found in support of the judgment, and the reviewing

court must affirm that judgment on any basis. See Point Lookout West, Inc. v.

Whorton, 742 S.W.2d 277, 278 (Tex. 1987) (“Neither party requested

findings of fact and conclusions of law. Therefore, all questions of fact

should have been presumed found in support of the judgment, and the

judgment affirmed if it could be upheld on any basis.” (citing Lassiter v.

Bliss, 559 S.W.2d 353 (Tex. 1977)).

      In this case, the Appellant did not comply with applicable rules of

procedure by failing to request or file findings of fact and conclusions of law



                                       9
and does not complain of a specific finding of fact. As such, there is no

justiciable question for this Court to decide, and the court must affirm the trial

court’s judgment.

      B.     Appellant Waived Argument on Appeal

Appellant’s brief does not refer to or cite the record in any way. As such,

Appellant has waived any potential argument on appeal. Tex. R. App. P.

38.1(i).   This Court has no duty to review a voluminous record without

guidance from an appellant to determine if an issue raised constitutes

reversible error. Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d

858, 861 (Tex. App.—Dallas 2013, no pet.); Bullock v. American Heart

Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied) (appellate

court has no duty or right to perform an independent review of the record and

applicable law to determine whether there was error).

      C.     Even If A Justiciable Question Were Presented and

Appellant Has Not Waived Argument on Appeal, Appellant Did Not

Argue Any Reversible Error

      On April 29, 2015, Appellant filed a hand-written brief with this Court.

Appellant’s brief merely reiterates the same unsubstantiated factual

allegations made previously by Appellant to the trial court.




                                       10
      Rule 44.1 establishes the standard for reversible error and states that a

judgment may be reversed on appeal if the trial court made an error at law

that resulted in the rendition of an improper judgment or prevented Appellant

from properly presenting her case to this court. Even viewing Appellant’s

brief in the most favorable light, none of Appellant’s arguments can be

construed as arguing that the trial court made an error at law that resulted in

the rendition of an improper judgment or prevented Appellant from properly

presenting her case to this court. Therefore, this Court must affirm the trial

court’s judgment because Appellant does not allege any reversible error.

IV.   CONCLUSION

      Appellee requests that this Court affirm the trial court’s judgment on

the grounds that Appellant has not presented a justiciable question or,

alternatively, that Appellant has not alleged any reversible error.

      Appellee also requests all such other relief to which it may be entitled.

                                              Respectfully submitted,


                                                   /S/ Connie N. Heyer
                                              __________________________
                                              Niemann & Heyer, L.L.P
                                              Connie N. Heyer
                                              Counsel for Appellee
                                              Texas State Bar No. 00794373
                                              1122 Colorado Street, Ste. 313
                                              Austin, Texas 78701
                                              Telephone: (512) 474-6901
                                              Facsimile: (512) 474-0717

                                       11
                      CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing has been
forwarded to Appellant at her last known address of record, via certified mail,
return receipt requested on this ____
                                   29 day of _________,
                                                May       2015.



_______________________
/S/ Connie N. Heyer
Connie N. Heyer
      Mary E. Allen, Pro Se
      General Delivery
      823 Congress, Ste. 150
      Austin, Texas 78701

                   CERTIFICATE OF COMPLIANCE

     I hereby certify on this ____
                               29 day of _________,
                                          May       2015, that this
document contains 1,280 words, which complies with Texas Rule of
Appellate Procedure 9.4(i)(B).



_______________________
 /S/ Connie N. Heyer
Connie N. Heyer




                                      12
      APPENDIX

Tab   Document Description

A     Trial Court’s Judgment (C-1-CV-14-007235)

B     Texas Rule of Appellate Procedure 38.1

C     Texas Rule of Appellate Procedure 44.1




             File Server:CLIENTS:WellsBranchSelfStorage:Allen Appeal:BriefIT5-15.pdf




            13
                                    CAUSE NO. C-l-CV-14-007235


         MARY E. ALLEN,                                      §      IN THE COUNTY COURT
                                                             §
                               Plaintiff,                    §                                       T)

                                                             §                    3)

                                                             §                                 CD    W
         v.
                                                             §     TRAVIS COU^fY, TElLASn
                                                             §                    o_"          —
                                                                                                     o
                                                                                               -_j   72
                                                             §                    S1/ r~
                                                                                  .-to!'
                                                                                               ~o    71
                                                             §                    •    /   >   _!_   ;n
                                                                                  ~j ,J '"-
         WELLS BRANCH SELF STORAGE,                          §                                 CO
                                                                                                     ,-\


                                                                                  3?^;               O
                                                             §                                 -0-   "in

                               Defendant.                    §   COUNTY COURT AT LAW Wt




                                              JUDGMENT




                On the 16th day of October, 2014, came to be heard the above titled and numbered
         cause. The Plaintiff/Counter-Defendant, MARY E. ALLEN ("ALLEN"), appeared in
         person and announced ready for trial. The Defendant/Counter-Plaintiff, WELLS
         BRANCH SELF STORAGE ("WBSS"), appeared with counsel and announced ready for
         trial. No jury was demanded and all issues were submitted to the Court. After hearing and
         considering the pleadings, evidence and argument, the Court is of the opinion and finds
         that Plaintiff, ALLEN, shall recover nothing from Defendant, WBSS; and also finds that
                                                      Text
         the Counter-Plaintiff, WBSS, is entitledto judgment against Counter-Defendant ALLEN.

               IT IS, THEREFORE, ORDERED by the Court that the said Plaintiff, MARY
         E. ALLEN, take nothing by the original claim.

               IT IS FURTHER ORDERED that the Counter-Plaintiff, WELLS BRANCH
         SELF STORAGE, recover from Counter-Defendant, MARY E. ALLEN, as follows:

                $1,441.00      unpaid rent;
                $__/_^_£_      attorney's fees; or
                $3ML ffO as total sum; plus court costs; and post judgment interest at a rate
                of 5% per
                      pei annum on all amounts from the date of the judgment until paid, for
                which let execution issue


                SIGNED this the 16th day ofOctober, 2014.
Case # C-l-CV-14-007235

 IIIIII Hill

                                                     TAB A
                                                                                                           Yfr
Page 44                                                                                      TEXAS RULES OF APPELLATE PROCEDURE


             accurate copy to the clerk of the court in which the                             (2)     Criminal Cases. If the clerk’s record or
             case is pending.                                                                         reporter’s record has not been timely filed, the
                                                                                                      appellate court clerk must refer the matter to
                      Notes and Comments                                                              the appellate court. The court must make
                                                                                                      whatever order is appropriate to avoid further
      Comment to 1997 change: The rule is new.                                                        delay and to preserve the parties’ rights.

                                                                                       (b)    If No Clerk’s Record Filed Due to Appellant's Fault.
             Rule 37. Duties of the Appellate                                                 If the trial court clerk failed to file the clerk’s record
              Clerk on Receiving the Notice                                                   because the appellant failed to pay or make
                  of Appeal and Record                                                        arrangements to pay the clerk’s fee for preparing the
                                                                                              clerk’s record, the appellate court may — on a
37.1. On Receiving the Notice of Appeal                                                       party’s motion or its own initiative — dismiss the
                                                                                              appeal for want of prosecution unless the appellant
       If the appellate clerk determines that the notice of appeal                            was entitled to proceed without payment of costs.
or certification of defendant's right of appeal in a criminal case                            The court must give the appellant a reasonable
is defective, the clerk must notify the parties of the defect so that                         opportunity to cure before dismissal.
it can be remedied, if possible. If a proper notice of appeal or
certification of a criminal defendant's right of appeal is not filed                   (c)    If No Reporter’s Record Filed Due to Appellant's
in the trial court within 30 days of the date of the clerk's notice,                          Fault. Under the following circumstances, and if the
the clerk must refer the matter to the appellate court, which will                            clerk’s record has been filed, the appellate court may
make an appropriate order under this rule or Rule 34.5(c)(2).                                 — after first giving the appellant notice and a
                                                                                              reasonable opportunity to cure — consider and
37.2. On Receiving the Record                                                                 decide those issues or points that do not require a
                                                                                              reporter’s record for a decision. The court may do
      On receiving the clerk’s record or the reporter’s record, the                           this if no reporter’s record has been filed because:
appellate clerk must determine whether each complies with the
Supreme Court’s and Court of Criminal Appeals’ order on                                       (1)     the appellant failed to request a reporter’s
preparation of the record. If so, the clerk must endorse on each                                      record; or
the date of receipt, file it, and notify the parties of the filing and
the date. If not, the clerk must endorse on the clerk’s record or                             (2)     (A) appellant failed to pay or make
reporter’s record — whichever is defective — the date of receipt                                          arrangements to pay the reporter's fee to
and return it to the official responsible for filing it. The appellate                                    prepare the reporter’s record; and
court clerk must specify the defects and instruct the official to
correct the defects and return the record to the appellate court by                                   (B) the appellant is not entitled to proceed
a specified date. In a criminal case, the record must not be posted                                       without payment of costs.
on the Internet.
                                                                                                         Notes and Comments
37.3. If No Record Filed
                                                                                      Comment to 1997 change: Former Rules 56 and 57(a) are
      (a)    Notice of Late Record.                                              merged. Subdivisions 37.2 and 37.3 are new.

             (1)   Civil Cases. If the clerk’s record or reporter’s
                   record has not been timely filed, the appellate                                  Rule 38. Requisites of Briefs
                   clerk must send notice to the official
                   responsible for filing it, stating that the record            38.1. Appellant's Brief
                   is late and requesting that the record be filed
                   within 30 days if an ordinary or restricted                          The appellant’s brief must, under appropriate headings and
                   appeal, or 10 days if an accelerated appeal. The              in the order here indicated, contain the following:
                   appellate clerk must send a copy of this notice
                   to the parties and the trial court. If the clerk                    (a)    Identity of Parties and Counsel. The brief must give
                   does not receive the record within the stated                              a complete list of all parties to the trial court's
                   period, the clerk must refer the matter to the                             judgment or order appealed from, and the names and
                   appellate court. The court must make whatever                              addresses of all trial and appellate counsel, except as
                   order is appropriate to avoid further delay and                            otherwise provided in Rule 9.8.
                   to preserve the parties' rights.


                                                                          44

                                                                         TAB B
TEXAS RULES OF APPELLATE PROCEDURE                                                                                                   Page 45


    (b)   Table of Contents. The brief must have a table of                           (1)   Necessary Contents. Unless voluminous or
          contents with references to the pages of the brief.                               impracticable, the appendix must contain a
          The table of contents must indicate the subject matter                            copy of:
          of each issue or point, or group of issues or points.
                                                                                            (A) the trial court’s judgment or other
    (c)   Index of Authorities. The brief must have an index of                                 appealable order from which relief is
          authorities arranged alphabetically and indicating the                                sought;
          pages of the brief where the authorities are cited.
                                                                                            (B) the jury charge and verdict, if any, or the
    (d)   Statement of the Case. The brief must state concisely                                 trial court’s findings of fact and
          the nature of the case (e.g., whether it is a suit for                                conclusions of law, if any; and
          damages, on a note, or involving a murder
          prosecution), the course of proceedings, and the trial                            (C) the text of any rule, regulation, ordinance,
          court's disposition of the case. The statement should                                 statute, constitutional provision, or other
          be supported by record references, should seldom                                      law (excluding case law) on which the
          exceed one-half page, and should not discuss the                                      argument is based, and the text of any
          facts.                                                                                contract or other document that is central
                                                                                                to the argument.
    (e)   Any Statement Regarding Oral Argument. The brief
          may include a statement explaining why oral                                 (2)   Optional Contents. The appendix may contain
          argument should or should not be permitted. Any                                   any other item pertinent to the issues or points
          such statement must not exceed one page and should                                presented for review, including copies or
          address how the court’s decisional process would, or                              excerpts of relevant court opinions, laws,
          would not, be aided by oral argument. As required                                 documents on which the suit was based,
          by Rule 39.7, any party requesting oral argument                                  pleadings, excerpts from the reporter’s record,
          must note that request on the front cover of the                                  and similar material. Items should not be
          party’s brief.                                                                    included in the appendix to attempt to avoid the
                                                                                            page limits for the brief.
    (f)   Issues Presented. The brief must state concisely all
          issues or points presented for review. The statement             38.2. Appellee's Brief
          of an issue or point will be treated as covering every
          subsidiary question that is fairly included.                          (a)   Form of Brief.

    (g)   Statement of Facts. The brief must state concisely                          (1)   An appellee's brief must conform to the
          and without argument the facts pertinent to the issues                            requirements of Rule 38.1, except that:
          or points presented. In a civil case, the court will
          accept as true the facts stated unless another party                              (A) the list of parties and counsel is not
          contradicts them. The statement must be supported                                     required unless necessary to supplement
          by record references.                                                                 or correct the appellant's list;

    (h)   Summary of the Argument. The brief must contain a                                 (B) the appellee’s brief need not include a
          succinct, clear, and accurate statement of the                                        statement of the case, a statement of the
          arguments made in the body of the brief. This                                         issues presented, or a statement of facts,
          summary must not merely repeat the issues or points                                   unless the appellee is dissatisfied with
          presented for review.                                                                 that portion of the appellant's brief; and

    (i)   Argument. The brief must contain a clear and concise                              (C) the appendix to the appellee’s brief need
          argument for the contentions made, with appropriate                                   not contain any item already contained in
          citations to authorities and to the record.                                           an appendix filed by the appellant.

    (j)   Prayer. The brief must contain a short conclusion                           (2)   When practicable, the appellee's brief should
          that clearly states the nature of the relief sought.                              respond to the appellant's issues or points in the
                                                                                            order the appellant presented those issues or
    (k)   Appendix in Civil Cases.                                                          points.

                                                                                (b)   Cross-Points.



                                                                     45
                                                                   TAB B
Page 52                                                                                 TEXAS RULES OF APPELLATE PROCEDURE


      (c)   reverse the trial court's judgment in whole or in part                             Rule 44. Reversible Error
            and render the judgment that the trial court should
            have rendered;                                                   44.1. Reversible Error in Civil Cases

      (d)   reverse the trial court's judgment and remand the                     (a)    Standard for Reversible Error. No judgment may be
            case for further proceedings;                                                reversed on appeal on the ground that the trial court
                                                                                         made an error of law unless the court of appeals
      (e)   vacate the trial court's judgment and dismiss the                            concludes that the error complained of:
            case; or
                                                                                         (1)   probably caused the rendition of an improper
      (f)   dismiss the appeal.                                                                judgment; or

43.3.Rendition Appropriate Unless Remand Necessary                                       (2)   probably prevented the appellant from properly
                                                                                               presenting the case to the court of appeals.
      When reversing a trial court's judgment, the court must
render the judgment that the trial court should have rendered,                    (b)    Error Affecting Only Part of Case. If the error
except when:                                                                             affects part of, but not all, the matter in controversy
                                                                                         and that part is separable without unfairness to the
      (a)   a remand is necessary for further proceedings; or                            parties, the judgment must be reversed and a new
                                                                                         trial ordered only as to the part affected by the error.
      (b)   the interests of justice require a remand for another                        The court may not order a separate trial solely on
            trial.                                                                       unliquidated damages if liability is contested.

43.4. Judgment for Costs in Civil Cases                                      44.2. Reversible Error in Criminal Cases

      In a civil case, the court of appeals’ judgment should                      (a)    Constitutional Error. If the appellate record in a
award to the prevailing party the appellate costs — including                            criminal case reveals constitutional error that is
preparation costs for the clerk’s record and the reporter’s record                       subject to harmless error review, the court of appeals
— that were incurred by that party. But the court of appeals may                         must reverse a judgment of conviction or punishment
tax costs otherwise as required by law or for good cause.                                unless the court determines beyond a reasonable
                                                                                         doubt that the error did not contribute to the
43.5. Judgment Against Sureties in Civil Cases                                           conviction or punishment.

       When a court of appeals affirms the trial court judgment,                  (b)    Other Errors. Any other error, defect, irregularity,
or modifies that judgment and renders judgment against the                               or variance that does not affect substantial rights
appellant, the court of appeals must render judgment against the                         must be disregarded.
sureties on the appellant's supersedeas bond, if any, for the
performance of the judgment and for any costs taxed against the                   (c)    Presumptions. Unless the following matters were
appellant.                                                                               disputed in the trial court, or unless the record
                                                                                         affirmatively shows the contrary, the court of
43.6. Other Orders                                                                       appeals must presume:

       The court of appeals may make any other appropriate order                         (1)   that venue was proved in the trial court;
that the law and the nature of the case require.
                                                                                         (2)   that the jury was properly impaneled and
                     Notes and Comments                                                        sworn;

      Comment to 1997 changes: Former Rules 80(a) - (c) and                              (3)   that the defendant was arraigned;
82 are merged. Paragraph 43.2(e) allows the court of appeals to
vacate the trial court’s judgment and dismiss the case; paragraph                        (4)   that the defendant pleaded to the indictment or
43.2(f) allows the court of appeals to dismiss the appeal. Both                                other charging instrument; and
provisions are new but codify current practice. Paragraph
43.3(a) is moved here from former Rule 81(c). Paragraph                                  (5)   that the court's charge was certified by the trial
43.3(b), allowing a remand in the interest of justice, is new.                                 court and filed by the clerk before it was read
Subdivisions 43.4 and 43.5 are from former Rule 82.                                            to the jury.

                                                                             44.3. Defects in Procedure

                                                                      52

                                                                     TAB C
