Rhina L. Gervis v. State ( 2015 )

NUMBER 13-15-00199-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________
RHINA L. GERVIS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 398th District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion Per Curiam
Appellant, Rhina L. Gervis, attempted to perfect an appeal from a judgment
entered by the 398th District Court of Hidalgo County, Texas, in cause number C-1754-
10-I. Judgment in this cause was signed on November 2, 2010.
Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the judgment is signed, unless a motion for
new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial
has been filed, notice of appeal shall be filed within ninety days after the judgment is
signed. TEX. R. APP. P. 26.1(a).
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 Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (1997) (construing the predecessor
to Rule 26). However, appellant must provide a reasonable explanation for the late filing:
it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins, 140 S.W.3d
462, 462 (Tex. App.—Amarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.
—Waco 2002, no pet.).
Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of appeal
was due on December 2, 2010, but was not filed until April 21, 2015. On April 22, 2015,
the Clerk of this Court notified appellant of this defect so that steps could be taken to
correct the defect, if it could be done. Appellant was advised that, if the defect was not
corrected within ten days from the date of receipt of this Court’s letter, the appeal would
be dismissed. Appellant responded by filing a motion for extension of time to file the
notice of appeal. Appellant asserts she has good cause for the extension of time
because she did not know it was possible to appeal the judgment.
Although appellant has responded with an explanation regarding her late filing of
the notice of appeal, appellant’s notice of appeal was filed beyond the fifteen-day grace
period provided by rule 26.3. The Court, having examined and fully considered the
documents on file and appellant’s failure to timely perfect his appeal, is of the opinion that
the appeal should be dismissed for want of jurisdiction. Appellant’s motion for extension
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of time to file the notice of appeal is hereby DENIED. Accordingly, the appeal is hereby
DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P. 42.3(a).
PER CURIAM
Delivered and filed the
14th day of May, 2015.
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