Eduardo M. Benavides v. Johnny Sanchez--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-278-CV

EDUARDO M. BENAVIDES,

Appellant

v.

JOHNNY SANCHEZ,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 25,658

MEMORANDUM OPINION

Eduardo Benavides attempts to appeal by writ of error from a judgment signed July 3, 1996, dismissing his in forma pauperis lawsuit against Johnny Sanchez, a former court reporter for the 144th District Court in Bexar County. See Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1997). Benavides alleged in his petition that Sanchez had, among other things, in June 1984 incorrectly transcribed the events of his criminal trial in the 144th District Court. Benavides timely perfected his writ of error on December 6, 1996. See Tex. R. App. P. 45(d).

The transcript was timely filed in this court on December 20, 1996. See Tex. R. App. P. 54(a). Following two extensions, Benavides' brief was due to be filed in this court on or before April 11, 1997. Id. 74(k). Appellate Rule 74(l)(1) provides:

Civil Cases. In civil cases, when the appellant has failed to file his brief in the time prescribed, the appellate court may dismiss the appeal for want of prosecution, unless reasonable explanation is shown for such failure and that appellee has not suffered material injury thereby. The court may, however, decline to dismiss the appeal, whereupon it shall give such direction to the cause as it may deem proper.

Id. 74(l)(1).

This court received a brief from Benavides on April 15. The envelope in which the brief was mailed bears a clear and legible postmark from the United States Postal Service of April 12, 1997. Rule of Appellate Procedure 4(b) provides for the filing of records, briefs, and other papers by means of the United States Postal Service. A document related to the prosecution of an appeal will be deemed timely filed if it is sent to the proper clerk's address by first-class mail, if it is deposited with the Postal Service on or before the last day it is due, and if it is received by the appropriate clerk within ten days of its due date. Id. 4(b); see also Tex. R. Civ. P. 5. In determining the date upon which the document was mailed, Rule 4(b) provides that "a certificate of mailing by the United States Postal Service or a legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing." Tex. R. App. P. 4(b); see also Tex. R. Civ. P. 5. In the certificate of service Benavides signed with his brief, he indicates that he "forwarded" a true and correct copy of his brief to the respondent on April 11, 1997.

The Beaumont Court of Appeals in Texas Beef Cattle Co. v. Green, 862 S.W.2d 812 (Tex. App. Beaumont 1993, no writ), held that a clear and legible postmark determines the date a document is deposited with the United State Postal Service, and an affidavit from the person mailing the document is insufficient evidence to establish an earlier date of deposit. Following Green, we conclude that the date Benavides filed his brief is April 12, 1997.

On March 12, 1997, we notified Benavides that we may dismiss his appeal for want of prosecution if he failed to file an appellant's brief within thirty days. Id. 60(a)(2), 83. Those thirty days passed, and Benavides failed to timely file his brief. Therefore, this appeal is dismissed for want of prosecution. Id. 74(l)(1); see Resendez v. Schwartz, 08-96-123-CV, slip op. at 2 (Tex. App. El Paso, January 9, 1997, no writ).

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice James (Retired)

(Justice James not participating)

Dismissed for want of prosecution

Opinion delivered and filed April 30, 1997

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