# Fourth Court of Appeals

San Antonio, Texas

August 26, 2019

No. 04

- 19

- 00409

- CV

Frederick O. SILVER

, Appellant

v.

TOYOTA MOTOR MANUFACTURING TEXAS, INC., ET AL.

, Appellee

From the 131st Judici al District Court, Bexar County, Texas

Trial Court No. 2019

- CI

- 05365 Honorable Rosie Alvarado, Judge Presiding



### O R D E R

By order dated August 6, 2019, the trial court clerk was ordered to file a clerk’s record “containing only those documents necessary to review the trial court’s order on ability to afford

costs which should include the appellant’s affidavits of indigence, any contests or responses, and

the trial court’s order. ” Appellant has filed a motion asserting it is “impossible for [him] to file an accurate brief” because the clerk’s record filed pursuant to this court’s order does not contain ; (1) his “second/new Statement of inability to afford Court cost . . . as directed by the order signed on 04/ 05 /2019 by Judge ; ” and (2) “Written Contested affidavit filed by defendant or
clerk.”

Although we presume the trial court clerk included all documents filed in the trial court

that we re responsive to our prior order, the reporter’s record reflect s a ppellant filed a sec ond statement of inability on April 11, 2019, which is not contained in the clerk’s re cord. It is

therefore ORDERED that appellant’s motion is GRANTED IN PART . The trial court clerk is

ORDERED to file no later than ten days from the date of this order: ( 1) a supplemental clerk’s record containing th e statement of inability filed on April 11, 2019 ; and (2) a written notification certifying no contests or responses were filed in the trial court. The clerk of this court is ORDERED to provide appellant with copies of the supplemental clerk’s record and written notification immediately upon receipt of the filings.

By order dated August 21, 2019, this court struck appellant’s first brief noting several deficiencies. On August 22, 2019, appellant filed a n amen ded brief which does not correct the deficiencies noted in the prior order other than to delete any reference to Rule 18a of the TexasRules of Civil Procedure. Notwithstanding these deficiencies, we will not strike appellant’s

amended brief and will not order appellant to file a second amended brief. However, appellant is advised that we may ultimately conclude that appellant has waived his appellate complaints

due to inadequate briefing. See Lott v. First Bank , No. 04

- 13

- 00311

- CV, 2014 WL 4922896, at *4 (Tex. App.

— San Antonio Oct. 14, 2014, no pet.) (holding the appellant waived any appellate complaint by failing to comply with the briefing rules set out in Rule 38.1 of the Texas Rules of Appellate Procedure).

Because appellant’s motion st ates it was “impossible for [him] to file an accurate brief” because the statement of inability he filed in the trial court on April 11, 2019 was missing from the clerk’s record, appellant is ORDERED to file a written advisory in this court no later than

t en days from the date the supplemental clerk’s record is filed stating whether he intends to file

a second amended brief.

___________________________ ______ Beth Watkins , Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said

court on this 26th day of August, 2019

.

____________________________ _______ K eith E. H ottle

, Clerk of Court