In the Estate of Jose Luis Pomar, Deceased--Appeal from County Court At Law No 1 of Webb County

MEMORANDUM OPINION

No. 04-07-00831-CV

In the Estate of Jose Luis Pomar, Deceased

From the County Court At Law No 1, Webb County, Texas

Trial Court No. 2007-PB4-000018-L1

Honorable Alvino (Ben) Morales, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Rebecca Simmons, Justice

Steven C. Hilbig, Justice

Delivered and Filed: February 20, 2008

DISMISSED

Appellant Evangelina Rendon appeals the trial court s order signed on October 1, 2007. In this order, the trial court stated that Rendon failed to prove the elements of a common law marriage to [Pomar], and otherwise has no interest in his estate. The trial court ordered that Rendon take nothing from the estate of [Pomar]. [1] The notice of appeal was due to be filed on October 31, 2007. A motion for extension of time to file the notice of appeal was due to be filed on November 15, 2007. See Tex. R. App. P. 26.3. Rendon filed her notice of appeal on November 26, 2007 and a motion for extension of time to file a notice of appeal on December 4, 2007. On December 11, 2007, we issued an order that Rendon show cause, in writing, why her appeal should not be dismissed for lack of jurisdiction.

Rendon filed a response on January 23, 2007. In her response, Rendon states that this court should not dismiss her appeal because she filed a petition for writ of mandamus in an attempt to invoke this court s jurisdiction. On October 23, 2007, Rendon filed a petition for writ of mandamus complaining that the trial court limited her efforts to obtain discovery showing the children are disqualified to serve as administrators. In re Evangelina Rendon, No. 04-07-00742-CV, 2007 WL 3355455 (Tex. App. San Antonio Nov. 14, 2007, orig. proceeding). On November 14, 2007, this court denied Rendon s petition. Id.

Generally, the appellate court s jurisdiction is invoked when an appellant timely files an instrument in a bona fide attempt to invoke [that] court s jurisdiction. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). The issue Rendon seems to posit is whether her petition for writ of mandamus is an instrument that she filed in a bona fide attempt to invoke this court s appellate jurisdiction. We hold that Rendon s petition for writ of mandamus is not an instrument that was filed in a bona fide attempt to invoke the appellate court s jurisdiction as purported in her notice of appeal.

Rendon s petition for writ of mandamus and notice of appeal requested relief from different orders and thus, served different purposes. Unlike her notice of appeal, in her petition for writ of mandamus, Rendon was not seeking appellate relief from the trial court s order dated October 1, 2007. Rendon s petition for writ of mandamus was, therefore, not filed for the purpose of obtaining appellate relief from the trial court s order of October 1, 2007. Consequently, we are unable to conclude that Rendon s petition for writ of mandamus can serve as a substitute to timely perfect her appeal. See In the Interest of K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (holding that a motion for new trial is not an instrument that may be considered a bona fide attempt to invoke the appellate court s jurisdiction because, among other reasons, the purpose of the motion is to extend the deadline to file a notice of appeal and not to serve as a substitute).

Accordingly, Rendon s notice of appeal is untimely. Because this court is without jurisdiction to consider an appeal that is not timely perfected, we must dismiss this appeal for want of jurisdiction. Grondoma v. Sutton, 991 S.W.2d 90, 93 (Tex. App. Austin 1998, pet. denied). Rendon s appeal is therefore dismissed for want of jurisdiction.[2]

PER CURIAM

[1] On October 22, 2007, the trial court granted letters of administration to applicants Jose Luis Pomar, Jr. and Isabel Garcia Pomar. Rendon and Guadalupe Pomar filed a joint notice of appeal and the motion for extension of time to file a notice of appeal. This court granted Guadalupe Pomar s motion.

[2] We dismiss Rendon s appeal without any bearing to Guadalupe Pomar s appeal.