Leslie Allen Schrecengost v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00033-CV
NO. 02-16-00034-CV
LESLIE ALLEN SCHRECENGOST APPELLANT
V.
THE STATE OF TEXAS APPELLEE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NOS. F-2010-0665-B, F-2011-1534-B
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MEMORANDUM OPINION1
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Through these two appeals, Appellant Leslie Allen Schrecengost attempts
to challenge the trial court’s December 8, 2015 order denying his “Motion to
Cease Withdrawal of Funds.”2 Because Schrecengost did not file a
1
See Tex. R. App. P. 47.4.
2
See Harrell v. State, 286 S.W.3d 315, 321 (Tex. 2009) (holding that
proceedings involving the withdrawal of funds from an inmate trust account are
postjudgment motion to extend the appellate deadline, his notice of appeal was
due on January 7, 2016. See Tex. R. App. P. 26.1. Schrecengost filed his notice
of appeal on January 19, 2016, twelve days late.
On February 2, 2016, we sent a letter to Schrecengost stating our concern
that we lacked jurisdiction over these appeals because his notice of appeal was
not timely filed. We informed Schrecengost that unless he, or any party desiring
to continue the appeals, filed a response by February 12, 2016, showing an
explanation for the late filing of the notice of appeal, the appeals could be
dismissed for want of jurisdiction. See Tex. R. App. P. 10.5(b), 26.3(b), 42.3(a).
Schrecengost timely filed a response to our jurisdiction letter.
In his response, Schrecengost explained that because he is incarcerated,
he is not only “restrained by the speed of the United States Postal Service, but
the [prison] mail room as well.” He then provided a timeline of events relating to
his notice of appeal and asked that we accept the timeline as a reasonable
explanation for his late filing. In his timeline, Schrecengost acknowledged that he
received the trial court’s denial of his “Motion to Cease Withdrawal of Funds” on
December 23, 2015, yet waited until January 12, 2016, to place his notice of
civil in nature and that the proper method for seeking appellate review of an order
of withdrawal of funds from an inmate trust account is by direct appeal of the
order).
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appeal in the prison mail.3 No explanation was given for the twenty-day delay
between the date Schrecengost received the trial court’s order and the date he
mailed his notice of appeal.
An appellate court may extend the time to file a notice of appeal if, within
fifteen days after the due date, the appellant files his notice of appeal and a
motion for extension of time in the appellate court. Tex. R. App. P. 26.3. A
motion for extension of time is implied when a notice of appeal is filed in good
faith within fifteen days following the appellate deadline. Verburgt v. Dorner, 959
S.W.2d 615, 617 (Tex. 1997); Johnson v. Hope Vill. Apartments, No. 09-09-
00526-CV, 2010 WL 4263760, at *6 (Tex. App.—Beaumont Oct. 28, 2010, pet.
denied) (mem. op.). An appellant, however, is required to offer a reasonable
explanation for the delay in the filing of the notice of appeal. See Tex. R. App. P.
10.5(b)(1)(C), (b)(2)(A), 26.3(b); Jones v. City of Houston, 976 S.W.2d 676, 677
(Tex. 1998); In re G.J.P., 314 S.W.3d 217, 221 (Tex. App.—Texarkana 2010,
pet. denied). A reasonable explanation is “any plausible statement of
circumstances indicating that failure to file within the [required] period was not
deliberate or intentional, but was the result of inadvertence, mistake or
mischance.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989); In
re J.I., 156 S.W.3d 651, 652 (Tex. App.—Fort Worth 2005, order).
3
While Schrecengost’s timeline indicates that the certificate of service for
his notice of appeal was made on “1-10-15,” the actual certificate of service
provides a date of January 12, 2016.
3
Here, Schrecengost has not provided a reasonable explanation for his
delay in filing his notice of appeal. Accepting his timeline as true, it indicates that
Schrecengost received the trial court’s denial of his “Motion to Cease Withdrawal
of Funds” on December 23, 2015—well before the January 7, 2016 deadline to
file his notice of appeal—yet he does not provide any explanation as to why he
waited until January 12, 2016, to mail his notice of appeal. There is nothing in
the record before us demonstrating the required showing that this delay was the
result of inadvertence, mistake, or mischance. See Garcia, 774 S.W.2d at 669;
J.I., 156 S.W.3d at 652.
As Schrecengost has not provided a reasonable explanation for his delay
in filing his notice of appeal, we lack jurisdiction over these appeals. See Jones,
976 S.W.2d at 677; G.J.P., 314 S.W.3d at 221; see also Perez v. State, No. 07-
08-00124-CR, 2008 WL 1744323, at *1 (Tex. App.—Amarillo Apr. 16, 2008, no
pet.) (mem. op., not designated for publication) (dismissing appeal for want of
jurisdiction when appellant did not provide an explanation for his untimely notice
of appeal but merely provided relevant dates and expressed a desire to appeal).
Accordingly, we dismiss these appeals for want of jurisdiction. See Tex. R. App.
P. 42.3(a), 43.2(f); Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617.
PER CURIAM
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: April 7, 2016
4