Minerva Elizalde v. State of Texas and Hidalgo County, Texas

• Court: Court of Appeals of Texas
• Decided: December 17, 2009
• Docket: 13-09-00581-CV
• Status: Published

Opinion

NUMBER 13-09-00581-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

MINERVA ELIZALDE, Appellant,

v.

STATE OF TEXAS AND HIDALGO COUNTY, TEXAS, Appellees. ____________________________________________________________

On appeal from the County Court at Law No. 4 of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion Per Curiam

Appellant, Minerva Elizalde, attempted to perfect an appeal from a judgment

entered by the County Court at Law No. 4 of Hidalgo County, Texas, in cause number

CCD-0019-D. Judgment in this cause was signed on July 21, 2009. A motion for new trial was not filed. Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of

appeal was due on August 20, 2009, but was not filed until September 8, 2009.

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.).

On October 19, 2009, 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. To date, no response has been received from appellant.

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

failure to timely perfect her 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 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 17th day of December, 2009.