in Re: David Scot Lynd ( 2012 )

l)ISMISS: Opinion issued December 10, 2012
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No. 05-11-01280-CV
IN RE: DAVID SCOT LYND
On Appeal from the 162nd Judicial District Court
1)allas County, Texas
Trial Court Cause No. I)C-10-06759
MEMORANDUM OPINION
Beibre Justices Moseley, Francis. and Lang
Opinion By Justice Lang
By letter dated October 24, 2012, the Court questioned its jurisdiction over this appeal.
Specifically, it appears the notice of appeal is untimely. We instructed appellant to file a
jurisdictional brief within ten days explaining how this Court has jurisdiction and gave appellee an
opportunity to file a responsive brief On November 13. 2012. appellant filed a motion for an
extension of time and dismissal of jurisdictional brief request. We treat appellant’s motion as a
jurisdictional brief.
A notice of appeal is due thirty days after the date the judgment is signed. TEx, R. App. P.
26. 1. If a party timely files a post-judgment motion extending the appellate timetable, the notice of
appeal is due ninety days after the date the judgment is signed. See TEx. R. APr. P.26.1(a). An
extension of time may be granted if an appellant files a notice of appeal within fifteen days of the
deadline and files a motion complying with rule of appellate procedure 10.5(b). See TEx. R. APP.
P.26.3. Without a timely notice of appeal, this Court lacks jurisdiction. See Thx. R. APE. P.25.1.
In his jurisdictional brief, appellant states:
Appellant filed the original notice on 6-30-2011 with the request for findings
of facts and conclusions of law. That notice had the original 6-8-2010 indigent
affidavit attached. The subsequent notices were due to the clerk feeling that [the]
affidavit was too old and must be redone.
The record before this Court does not support appellant’s claim. The request for findings offact and
conclusions oflaw does not include a notice ofappeal. Appellant also contends the time limit to file
a notice of appeal runs from the date of the judgment or an order on a motion for new trial.
Appellant’s assertion is incorrect Appellate timetables begin running only from the date the
judgment is signed. See Tex. R. App. P.26.1.
Appellant contends he made a good faith effort to invoke this Court’s jurisdiction by
attempting to file the original affidavit of indigence. The trial court clerk refbsed to file it. He
contends we should consider his good faith attempt as a request for an extension of time. As
support, appellant cites to Jones v. Cliv of Houston. 976 S.W.2d 676 (Tex. 1998). In Jone.c, the
appellant did not file the perfecting instrument, an affidavit in lieu of bond, before the deadline or
a motion for extension within the fifteen-day grace period. The appellant did, however, file his
affidavit in lieu ofbond within the fifteen-day grace period. Id. at 677. The supreme court held that
the filing of the affidavit within the grace period implied a motion for extension. Id. The holding
in Jones is not applicable to this case. Appellant did not file the perfecting instrument, a notice of
appeal, within either ninety days ofthe date ofthe judgment or within the fifteen-day grace period.
The trial court signed the judgment on May 24, 2011. Appellant filed a timely motion to
reconsider. Accordingly, the notice ofappeal was due on August 22,2011, ninety days from the date
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the judement was sincd. Sec TEN. R. Ai’r. P. 26. 1(a). Appellant bled a notice of appeal on
September 12, 2011. In his notice of appeal, appellant states that he is appealing the trial court’s
judgment dated June 14. 2011 The irial court signed an order on June 14, 20!! denying appellant’s
motion to reconsider. The judgment was signed on May 24, 2011 and that is the date from which
the appellate timetable runs. Appellant’s notice of appeal was tiled 21 days past the deadline.
Because appellant did not file a timely notice of appeal. this Court lacks jurisdiction. Accordingly,
we dismiss the appeal TEN. R. APP. P. 42.3(a.
JGL S. LNG’
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JUDGMENT
IN RE: DAViD SCoT LYND Appeal from the I 62nd Judicial District Court
of Dallas County, Texas. (Tr.Ct.No. DC- 10-
No. 05-1 1-01280-CV 06750).
Opinion (Iclivered by Justice Lang, Justices
Moseley and Francis, participating.
Based on the Court’s opinion of this date, the appeal is I)ISMISSEI).
It is ORDERED that appellee, Craig Watkins, recover his costs ofthe appeal from appellant,
David Scot Lynd.
Judgment entered December 10, 2012.
S. LANG