DONALD RAY MCCRAY, Appellant v. DOUGLAS D. MULDER, Appellee

DISMISS and Opinion Filed July 2, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00420-CV
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DONALD RAY MCCRAY, Appellant
V.
DOUGLAS D. MULDER, Appellee
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On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 07-07969
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MEMORANDUM OPINION
Before Justices Wright, Bridges, and Mazzant
        In this case, the trial court signed its final order of dismissal on January 7, 2008. Appellant did not timely file any post-judgment motion that would extend the period for filing the notice of appeal. Therefore, his notice of appeal was due by February 6, 2008. See Tex. R. App. P. 26.1(b). Appellant's notice of appeal was file-stamped March 27, 2008.
        By letter dated April 30, 2008, we directed the parties to file letter briefs addressing our jurisdiction over the appeal. Appellant responded   See Footnote 1  that he mailed the notice of appeal by depositing it in the prison mail system on January 22, 2008. Appellee responds that appellant has not provided proper proof that he timely filed his notice of appeal.         The timely filing of a notice of appeal is jurisdictional. See Tex. R. App. P. 25.1(b), 26.3. When a party files a notice of appeal within fifteen days of the deadline, rule 26.3 permits the party to file a motion for extension of time to file the notice of appeal. See Tex. R. App. P. 26.3; see Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). However, a notice of appeal filed outside the fifteen-day period provided by rule 26.3 will not invoke the appellate court's jurisdiction. See Verburgt, 959 S.W.2d 617.
        Under rule 9.2(b), a pleading is considered timely filed if it is placed in a stamped envelope, correctly addressed to the proper clerk, deposited in the United States mail on or before the last day of filing, and received within ten days after the filing deadline. Tex. R. App. P. 9.2(b). Rule 9.2(b)(2) makes it clear that appellant has the burden of providing some measure of proof his notice of appeal was placed in the United States mail on or before February 6, 2008. See Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007).
        In Houser v. McElveen, 243 S.W.3d 646 (Tex. 2009) (per curiam), the Texas Supreme Court addressed rules 9.2(b) and 26.3 in relation to the prison mail system. Houser mailed his notice of appeal thirty-five days after the trial court's judgment was signed. Id. at 646. Therefore, Houser was entitled to the benefit of rule 26.3(a). Moreover, the notice of appeal was received by the trial court clerk on the sixteenth day after it was originally due, which was within ten days of the date it was due under rule 26.3(a). Therefore, the court concluded Houser was also entitled to the benefit of rule 9.2(b), the mailbox rule. Id. Thus, under the facts presented, the court concluded Houser was entitled to an extension of time to file his notice of appeal. Id. at 647.
        Such is not the case here. Even taking appellant's assertion that he mailed his notice of appeal on January 22, 2008 as true and applying rules 9.2(b) and 26.3(a) as liberally as possible, at the latest, appellant's notice of appeal would have to have been received by March 5, 2008 for him to obtain the benefit of those rules. There is nothing in the record before this Court that shows either the District Clerk or this Court's clerk received appellant's notice of appeal at any time before March 27, 2008. We decline to apply rules 9.2(b), 26.3(a), or Houser so broadly that an appellant's mere assertion of a timely mailing date would give us jurisdiction over an appeal regardless of when the document was actually received. Because appellant's March 27, 2008 notice of appeal is untimely as to the January 7, 2008 judgment, we conclude we have no jurisdiction over the appeal. See Verburgt, 959 S.W.2d 617.
        We DISMISS this appeal for want of jurisdiction.
 
 
                                                                  PER CURIAM        
080420F.P05
 
Footnote 1 Appellant did not file a response with this Court. He mailed his response to appellee's counsel, who provided the Court with a copy.