Albert Benavidez v. Dane Larew Appeal from 28th District Court of Nueces County (memorandum opinion per curiam)
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NUMBER 13-16-00447-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________ ALBERT BENAVIDEZ, Appellant, v. DANE LAREW, Appellee. ____________________________________________________________ On appeal from the 28th District Court of Nueces County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Justices Garza, Perkes, and Longoria Memorandum Opinion Per Curiam Appellant, Albert Benavides, attempted to perfect an appeal from a judgment entered by the 28th District Court of Nueces County, Texas, in cause number 2014-DCV0995-A. Judgment in this cause was signed on April 29, 2016. A motion for new trial was filed on May 13, 2016. Appellant filed a notice of appeal on August 4, 2016. Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when notice of appeal is filed within thirty days after the judgment is signed, unless a motion for new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the judgment is signed. TEX. R. APP. P. 26.1(a). 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.BAmarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.BWaco 2002, no pet.). Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of appeal was due on July 28, 2016, but was not filed until August 4, 2016. Appellant’s notice of appeal states he is appealing the order denying the motion for new trial entered on July 5, 2016. Texas Rule of Appellate Procedure 26.1 establishes the deadline for filing a notice of appeal based on the date that the judgment was signed and not from the date a motion for new trial is denied. See TEX. R. APP. P. 26.1(a). On August 12, 2016, 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 2 letter, the appeal would be dismissed. To date, no response has been received from appellant providing a reasonable explanation for the late filing of the notice of appeal. The Court, having examined and fully considered the documents on file, appellant’s failure to timely perfect his 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 15th day of September, 2016. 3
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