Mario A. Lobato Jr. v. Santa I. Gonzales

• Court: Court of Appeals of Texas
• Decided: February 5, 2015
• Docket: 13-14-00627-CV
• Status: Published

Opinion

NUMBER 13-14-00627-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ___________________________________________________________

MARIO A. LOBATO JR., Appellant,

v.

SANTA I. GONZALES, Appellee. ____________________________________________________________

On appeal from the County Court at Law No. 5 of Nueces County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion Per Curiam

Appellant, Mario A. Lobato Jr., attempted to perfect an appeal from a judgment

entered by the County Court at Law No. 5 of Nueces County, Texas, in cause number

2014-CCV-60271-5. Judgment in this cause was signed on August 4, 2014. Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the judgment is signed, unless a motion for

new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial

has been filed, notice of appeal shall be filed within ninety days after the judgment is

signed. TEX. R. APP. P. 26.1(a).

A motion for extension of time is necessarily implied when an appellant, acting in

good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the

fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time.

See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (1997) (construing the predecessor

to Rule 26). However, appellant must provide a reasonable explanation for the late filing:

it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins, 140 S.W.3d

462, 462 (Tex. App.--Amarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.-

-Waco 2002, no pet.).

Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of appeal

was due on September 3, 2014, but was not filed until October 14, 2014. On December

12, 2014, the Clerk of this Court notified appellant of this defect so that steps could be

taken to correct the defect, if it could be done. Appellant was advised that, if the defect

was not corrected within ten days from the date of receipt of this Court’s letter, the appeal

would be dismissed. No response has been received from appellant.

The Court, having examined and fully considered the documents on file,

appellant’s failure to timely perfect his appeal, and appellant’s failure to respond to this

Court’s notice, is of the opinion that the appeal should be dismissed for want of

2 jurisdiction. Accordingly, the appeal is hereby DISMISSED FOR WANT OF

JURISDICTION. See TEX. R. APP. P. 42.3(a)(c).

PER CURIAM

Delivered and filed the 5th day of February, 2015.