Vernie Wayne McDaniel v. Robert A. Brimmer, M.D.--Appeal from 78th District Court of Wichita County

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-254-CV

VERNIE WAYNE MCDANIEL APPELLANT

V.

ROBERT A. BRIMMER, M.D. APPELLEE

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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION(1)
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Appellant pro se Vernie Wayne McDaniel filed a notice of appeal from the trial court's summary judgment on July 17, 2002. McDaniel has not, however, filed a brief in this case. Appellee Robert A. Brimmer, M.D. has filed a brief in support of the trial court's judgment. We affirm.

Although McDaniel is proceeding pro se, he is required to comply with the rules of appellate procedure in pursuing his appeal. See Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex. App.--San Antonio 1999, pet. denied), cert. denied, 531 U.S. 835 (2000). Where a party fails to file a brief, rule 38.8 allows the appellate court to dismiss the appeal for want of prosecution or, if an appellee's brief is filed, the court may regard that brief as correctly presenting the case and may affirm the trial court's judgment upon that brief without examining the record. Tex. R. App. P. 38.8(a)(1), (3); Harkins v. Dever Nursing Home, 999 S.W.2d 571, 573 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Because Dr. Brimmer filed his brief in this case, we choose the latter option.

We affirm the trial court's judgment.

PER CURIAM

PANEL F: DAY, GARDNER, and WALKER, JJ.

[DELIVERED: MARCH 20, 2003]

1. See Tex. R. App. P. 47.4.