Bobby Joe Evens v. Veda Michelle Evens

• Court: Court of Appeals of Texas
• Decided: September 24, 2020
• Docket: 05-20-00571-CV
• Status: Published

Opinion

DISMISS and Opinion Filed September 24, 2020

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00571-CV

BOBBY JOE EVENS, Appellant V. VEDA MICHELLE EVENS, Appellee

On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-19-10082

MEMORANDUM OPINION Before Justices Myers, Nowell, and Evans Opinion by Justice Evans We questioned our jurisdiction over this appeal from the trial court’s

December 31, 2019 order of dismissal as it appeared untimely. See Brashear v.

Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas

2009, no pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional). As

reflected in the record, appellant, who is a pro se inmate, received notice of the order

on January 15, 2020. He timely filed a motion for new trial, making the notice of

appeal due March 30, 2020, see TEX. R. APP. P. 26.1(a)(1), or with an extension motion, April 14, 2020, see id. 26.3. The notice of appeal, however, was not filed

until May 27, 2020.1

At our direction, appellant filed a letter brief addressing the timeliness of the

appeal. He explained he did not receive confirmation of the filing of his motion for

new trial until March 27, 2020, and he “was under the impression that the tolling

would start the date [he] received confirmation his Motion for New Trial was filed.”

The filing of a motion for new trial, however, does not trigger the appellate

deadlines. Rather, the time for filing a notice of appeal runs from the date the

judgment is signed, see id. 26.1, or if the party affected by the judgment does not

acquire knowledge within twenty days after the judgment is signed, the date the party

acquires knowledge provided it is within ninety days of judgment, see id. 4.2(a)(1).

Because the record here reflects appellant received notice of the dismissal

order within twenty days of its signing, the appellate deadlines were unaffected and

the notice of appeal, filed May 27th, was untimely. Accordingly, we dismiss the

appeal for want of jurisdiction. See id. 42.3(a).

/David Evans/ DAVID EVANS JUSTICE

200571F.P05

1 The filing date for both the notice of appeal and motion for new trial is based on the prisoner mailbox rule. See Enriquez v. Livingston, 400 S.W.3d 610, 621 (Tex. App.—Austin 2013, pet. denied) (op. on reh’g) (under prisoner mailbox rule, date prisoner gives pleading to prison authorities for mailing deemed date of filing with court clerk). –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BOBBY JOE EVENS, Appellant On Appeal from the 256th Judicial District Court, Dallas County, Texas No. 05-20-00571-CV V. Trial Court Cause No. DF-19-10082. Opinion delivered by Justice Evans, VEDA MICHELLE EVENS, Justices Myers and Nowell Appellee participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

Judgment entered September 24, 2020.

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