Don Ray White v. Marla Ramirez , 480 S.W.3d 8 ( 2015 )

NUMBER 13-15-00308-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
DON RAY WHITE, Appellant,
v.
MARLA RAMIREZ, Appellee.
____________________________________________________________
On Appeal from the 53rd District Court
of Travis County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion Per Curiam
Appellant, Don Ray White, proceeding pro se, attempted to perfect an appeal from
a judgment entered by the 53rd District Court of Travis County, Texas, in trial court cause
number D-1-GN-13-002904.1 We dismiss the appeal for want of jurisdiction.
1 This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through Ch. 46 2015 R.S.).
The trial court dismissed the underlying case for want of prosecution on April 21,
2015. Appellant filed his notice of appeal on June 2, 2015. On July 13, 2015, the Clerk
of this Court gave appellant notice that it appeared that the appeal had not been timely
perfected. Appellant was advised that the appeal would be dismissed if the defect was
not corrected within ten days from the date of receipt of the Court’s directive. Appellant
filed a response in which he appears to indicate that he did not receive timely notice of
the trial court’s judgment because he had been transferred between penal institutions.
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). The notice of appeal must be filed within
thirty days after the judgment or other appealable order is signed when appellant has not
filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or
request for findings of fact and conclusion of law. See TEX. R. APP. P. 26.1. Appellant’s
notice of appeal was not filed within this thirty-day period of time and the record before
us does not include a motion for new trial or other post-judgment motion which would
extend the time to file a notice of appeal.
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 id. 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (1997) (construing the
predecessor to rule 26.1). Appellant's notice of appeal was not filed within the fifteen-
day period provided by Rule 26.3.
When a party adversely affected by the judgment does not receive notice within
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twenty days of judgment, the period for filing the appeal begins to run from the date the
party received notice, provided no more than ninety days have elapsed since the signing
of the judgment or other appealable order. See TEX. R. CIV. P. 306a(4); TEX. R. APP. P.
4.2(a)(1). This rule expressly provides that it applies if notice is received after twenty
days from the date that judgment was signed but not more than ninety days after the
original judgment was signed. See TEX. R. CIV. P. 306a(4).
In the instant case, the date that appellant received notice of the trial court’s
judgment is not identified in the record. Accordingly, we are unable to ascertain whether
rule 306a(4) is inapplicable. See Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993); Jon
v. Stanley, 150 S.W.3d 244, 248 (Tex. App.–Texarkana 2004, no pet.). Moreover, even
if it were to apply, appellant did not follow the procedures required in Texas Rule of Civil
Procedure 306a and Texas Rule of Appellate Procedure 4.2 to gain additional time to
perfect his appeal. See Mem'l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per
curiam) (holding that compliance with the provisions of rule 306a is a jurisdictional
prerequisite).
The Court, having examined and fully considered the documents on file and
appellant’s response to this Court’s notice, is of the opinion that we lack jurisdiction over
this appeal. Accordingly, the appeal is hereby DISMISSED FOR WANT OF
JURISDICTION. See TEX. R. APP. P. 42.3(a). All pending motions, if any, are likewise
DISMISSED.
PER CURIAM
Delivered and filed the
31st day of August, 2015.
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