Dietrick Lewis Johnson, Sr. v. Rafael De La Garza and the De La Garza Law Firm, P.C. ( 2021 )

DISMISS and Opinion Filed May 12, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00234-CV
DIETRICK LEWIS JOHNSON, SR., Appellant
V.
RAFAEL DE LA GARZA AND THE DE LA GARZA LAW FIRM, P.C.,
Appellees
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-02061-2019
MEMORANDUM OPINION
Before Justices Molberg, Goldstein, and Smith
Opinion by Justice Goldstein
Dietrick Lewis Johnson, Sr. appeals the trial court’s January 31, 2020 order
dismissing his case for want of prosecution. Appellant filed his notice of appeal on
April 12, 2021. After reviewing the clerk’s record, we notified the parties that it
appeared appellant’s notice of appeal was not timely filed. We instructed appellant
to file a jurisdictional brief specifically addressing the timeliness issue and gave
appellees the opportunity to respond.
On May 10, 2021, appellant filed a jurisdictional letter brief that alleges he
was prevented from pursuing his underlying case because he was housed in a special
housing unit at USP Canaan (a high security United States penitentiary in
Pennsylvania). Appellant asserts he was afforded few, if any, opportunities to
communicate with the trial court until September 8, 2020. He asks this Court to
“reinstate all of his appellate rights in the trial court.” He did not, however, address
the timeliness of his notice of appeal or how this Court has jurisdiction to “reinstate”
his appellate rights.
Our jurisdiction is fundamental and never presumed. Brashear v. Victoria
Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no
pet.). Absent a timely filed notice of appeal from a final judgment or recognized
interlocutory order, we do not have jurisdiction over an appeal. See Lehmann v. Har–
Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When a party does not file a post-
judgment motion extending the appellate timetable, the notice of appeal is due within
thirty days after the judgment is signed or, with an extension motion, within forty-
five days after the judgment is signed. See TEX. R. APP. P. 26.1, 26.3.
Because appellant did not file any post-judgment motion extending the
appellate timetable, the notice of appeal was due on March 2, 2020. See id. 4.1(a),
26.1. Appellant, however, filed his notice of appeal on April 12, 2021, more than
one year after the deadline. The untimely notice of appeal fails to invoke our
jurisdiction. See Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233 (Tex. App.—
Houston [1st Dist.] 2007, no pet.).
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Accordingly, we dismiss the appeal. See TEX. R. APP. P. 25.1(b), 42.3(a).
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
210234F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DIETRICK LEWIS JOHNSON, SR., On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-02061-
No. 05-21-00234-CV V. 2019.
Opinion delivered by Justice
RAFAEL DE LA GARZA AND Goldstein. Justices Molberg and
THE DE LA GARZA LAW FIRM, Smith participating.
P.C., Appellee
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED for want of jurisdiction.
Judgment entered May 12, 2021
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