Jesus David Hernandez v. Marsha McLane, David Bowers, and Stacy Dinwiddie

• Court: Court of Appeals of Texas
• Decided: January 6, 2020
• Docket: 07-19-00422-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-19-00422-CV ________________________

JESUS DAVID HERNANDEZ, APPELLANT

V.

MARSHA MCLANE, DAVID BOWERS, AND STACY DINWIDDIE, APPELLEES

On Appeal from the County Court Lamb County, Texas Trial Court No. 3354; Honorable James M. DeLoach, Presiding

January 6, 2020

MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.

Appellant, Jesus David Hernandez, appearing pro se, appeals from the trial court’s

Order of Dismissal. Because Hernandez filed his notice of appeal untimely, we dismiss

the appeal for want of jurisdiction.

The trial court signed the Order of Dismissal on August 15, 2019. Hernandez did

not file a motion for new trial or a motion to modify the judgment. Accordingly, his notice of appeal was due thirty days after the judgment was signed, i.e., by September 16, 2019.

TEX. R. APP. P. 26.1(a), 4.1(a). Hernandez filed his notice of appeal on September 25,

2019.

A timely notice of appeal is essential to invoking this court’s jurisdiction. See TEX.

R. APP. P. 25.1(b), 26.1. We may extend the time to file a notice of appeal by fifteen days

if an appellant files a notice of appeal and a motion for an extension of time that

reasonably explains the need for an extension. TEX. R. APP. P. 26.3, 10.5(b). A motion

for extension is implied if the notice of appeal is filed within fifteen days after the notice

deadline. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). However, an appellant

must still reasonably explain the delay in filing the notice of appeal when a motion for

extension is implied. Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).

Hernandez filed his notice of appeal within fifteen days of the appellate deadline

but did not file a motion for an extension of time. By letter of December 4, 2019, we

notified Hernandez that a motion for extension was implied and directed him to file a

written response explaining why his notice of appeal was filed untimely. We advised

Hernandez that if he did not file a response by December 16, we would dismiss the appeal

for want of jurisdiction. Hernandez has not filed a response to date.

Because Hernandez failed to provide a reasonable explanation for his untimely

notice of appeal, we cannot grant an implied motion for extension. See TEX. R. APP. P.

26.3, 10.5(b); Phillips v. Gunn, No. 07-14-00094-CV, 2014 Tex. App. LEXIS 4027, at *2

(Tex. App.—Amarillo Apr. 11, 2014, no pet.) (mem. op.). Therefore, his late notice of

appeal failed to invoke the jurisdiction of this court. Id.

2 Accordingly, we dismiss the purported appeal for want of jurisdiction. TEX. R. APP.

P. 42.3(a).

Per Curiam