Dietrick Lewis Johnson, Sr. v. Rafael De La Garza and the De La Garza Law Firm, P.C.

Opinion

DISMISS and Opinion Filed May 12, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00234-CV

DIETRICK LEWIS JOHNSON, SR., Appellant V. RAFAEL DE LA GARZA AND THE DE LA GARZA LAW FIRM, P.C., Appellees

On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-02061-2019

MEMORANDUM OPINION Before Justices Molberg, Goldstein, and Smith Opinion by Justice Goldstein Dietrick Lewis Johnson, Sr. appeals the trial court’s January 31, 2020 order

dismissing his case for want of prosecution. Appellant filed his notice of appeal on

April 12, 2021. After reviewing the clerk’s record, we notified the parties that it

appeared appellant’s notice of appeal was not timely filed. We instructed appellant

to file a jurisdictional brief specifically addressing the timeliness issue and gave

appellees the opportunity to respond.

On May 10, 2021, appellant filed a jurisdictional letter brief that alleges he

was prevented from pursuing his underlying case because he was housed in a special housing unit at USP Canaan (a high security United States penitentiary in

Pennsylvania). Appellant asserts he was afforded few, if any, opportunities to

communicate with the trial court until September 8, 2020. He asks this Court to

“reinstate all of his appellate rights in the trial court.” He did not, however, address

the timeliness of his notice of appeal or how this Court has jurisdiction to “reinstate”

his appellate rights.

Our jurisdiction is fundamental and never presumed. Brashear v. Victoria

Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no

pet.). Absent a timely filed notice of appeal from a final judgment or recognized

interlocutory order, we do not have jurisdiction over an appeal. See Lehmann v. Har–

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When a party does not file a post-

judgment motion extending the appellate timetable, the notice of appeal is due within

thirty days after the judgment is signed or, with an extension motion, within forty-

five days after the judgment is signed. See TEX. R. APP. P. 26.1, 26.3.

Because appellant did not file any post-judgment motion extending the

appellate timetable, the notice of appeal was due on March 2, 2020. See id. 4.1(a),

26.1. Appellant, however, filed his notice of appeal on April 12, 2021, more than

one year after the deadline. The untimely notice of appeal fails to invoke our

jurisdiction. See Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233 (Tex. App.—

Houston [1st Dist.] 2007, no pet.).

–2– Accordingly, we dismiss the appeal. See TEX. R. APP. P. 25.1(b), 42.3(a).

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

210234F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DIETRICK LEWIS JOHNSON, SR., On Appeal from the 219th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 219-02061- No. 05-21-00234-CV V. 2019. Opinion delivered by Justice RAFAEL DE LA GARZA AND Goldstein. Justices Molberg and THE DE LA GARZA LAW FIRM, Smith participating. P.C., Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

Judgment entered May 12, 2021

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