Carmen Aceituno, et al. v. Chevron, U. S. A., et al.--Appeal from County Court at Law No 3 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CARMEN ACEITUNO, )

) No. 08-04-00086-CV

Appellant, )

) Appeal from the

v. )

) County Court at Law #3

CHEVRON U.S.A., INC., et al., )

) of El Paso County, Texas

Appellees. )

) (TC# 97-526)

)

MEMORANDUM OPINION

This is an attempted appeal from a summary judgment granted in favor of Appellees, Chevron U.S.A., Inc., et al. The issue before this Court is whether Appellant, Ms. Aceituno timely filed her notice of appeal. We conclude that she did not and dismiss the attempted appeal for want of jurisdiction.

The record reflects that the trial court entered its judgment on December 19, 2003. A motion for new trial was not timely filed in this case[1]. Ms. Aceituno filed a notice of appeal on April 2, 2004.

A civil appeal is perfected when the notice of appeal is filed. Tex.R.App.P. 26.1; see Restrepo v. First Nat=l Bank of Dona Ana County, N.M., 892 S.W.2d 237, 238 (Tex.App.--El Paso 1995, no writ)(applying former Tex.R.App.P. 40(a)[1]). If the appellant does not file a motion for new trial, a motion to modify, a motion to reinstate under Rule 165a, or a request for findings of fact or conclusions of law, the notice of appeal must be filed within thirty days after the judgment or other appealable order is signed. Tex.R.App.P. 26.1; Restrepo, 892 S.W.2d at 238. The time for filing a notice of appeal is extended if the appellant files both a notice of appeal and a motion for extension of time within fifteen days after the deadline for filing the notice of appeal. Tex.R.App.P. 26.3

The last date allowed for timely filing the notice of appeal was January 19, 2004, thirty days after the day the trial court imposed its sentence. Tex.R.App.P. 26.1. Ms. Aceituno did not file her notice of appeal until April 2, 2004, and did not timely file a motion for extension of time. Therefore, Ms. Aceituno failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

April 29, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

[1] Ms. Aceituno mailed her motion for new trial via Fed Ex on January 19, 2004. Pursuant to Tex.R.App.P. 9.2(b), a document filed by mail received within ten days after the filing deadline is considered timely if:

(A) it was sent to the proper clerk by United States Postal Service first-class, express, registered, or certified mail;

(B) it was placed in an envelope or wrapper properly addressed and stamped; and

(c) it was deposited in the mail on or before the last day for filing.

Tex.R.App.P. 9.2(b). While the last day for filing the motion for new trial was January 19, 2004, Ms. Aceituno=s motion for new trial was not mailed via the United States Postal Service. Ms. Aceituno failed to comply with the requirements of Tex.R.App.P. 9.2(b) and thus, her motion for new trial was not timely filed.