Michael Yow v. State of Texas ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN







NO. 3-93-644-CV



MICHAEL YOW,

APPELLANT

vs.





STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 491,074, HONORABLE VIRGIL MULANAX, JUDGE PRESIDING

PER CURIAM

The trial court signed its final judgment in this cause August 5, 1993. The deadline to file a timely motion for new trial was September 7, 1993. Tex. R. Civ. P. 329b(a). Appellant filed an untimely motion for new trial September 20, 1993. Because the untimely motion for new trial did not extend the deadline to perfect the appeal, the appeal bond was due thirty days from the signing of the final judgment, September 7, 1993. Tex. R. App. P. 41(a)(1). Appellant Michael Yow filed an appeal bond November 3, 1993. No motion for extension of time to file the appeal bond was tendered. Tex. R. App. P. 41(a)(2).

This Court notified the parties that the appeal would be dismissed for want of jurisdiction unless any party desiring to continue the appeal tendered to this Court a response showing grounds to continue the appeal. See Tex. R. App. P. 60(a)(2). In response, Yow filed a motion to extend the time for filing the statement of facts and continue the appeal. The motion to continue the appeal recites that the motion for new trial was mailed to the Travis County District Clerk on September 1, 1993. Attached to the motion to continue the appeal is the affidavit of a secretary who works in the office of Yow's counsel. The secretary's affidavit recites that she mailed an original and a copy of the motion for new trial with the filing fee by first-class mail, properly addressed and with proper postage to the Travis County District Clerk on September 1, 1993. See Fellowship Missionary Baptist Church v. Sigel, 749 S.W.2d 186, 188 (Tex. App.--Dallas 1988, no writ) (if postmark is absent, then date of mailing can be established by affidavit); Tex. R. App. P. 19(d); see also Doyle v. Grady, 543 S.W.2d 893, 894 (Tex. Civ. App.--Texarkana 1976, no writ) (sustaining timeliness based on facts recited in affidavit).

Even though the affidavit is prima facie evidence of the date the motion for new trial was mailed, the motion was not timely received in the district court. A document (1) sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and (2) deposited in the mail on or before the last day for filing the document, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. Tex. R. Civ. P. 5.

In order to avail himself of Rule 5, Yow's motion for new trial had to have been received by the trial-court clerk by September 17, 1993. There is no indication here that Yow's motion for new trial was received by the clerk before the date of its filing; accordingly, we will presume that it was received on the date filed, September 20, 1993. This was more than ten days after it was due and, therefore, it cannot be deemed filed in time. Because the untimely motion for new trial did not extend the deadline to perfect the appeal, the appeal bond was not timely filed. The motion for extension of time to file the statement of facts and continue the appeal is overruled.

The appeal is dismissed for want of jurisdiction. Tex. R. App. P. 60(a)(2).

Before Justices Powers, Jones and Kidd

Dismissed for Want of Jurisdiction

Filed: January 12, 1994

Do Not Publish