Opinion
No. 05-06-00228-CV
Opinion Filed April 11, 2006.
On Appeal from the 330th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-06510-Y.
Dismiss.
Before Chief Justice THOMAS and Justices LANG and MAZZANT.
MEMORANDUM OPINION
The Court has before it appellant Michael R. Crossland's February 13, 2006 motion for extension of time to file notice of appeal and his March 17, 2006 supplement to his motion for extension of time to file notice of appeal. Appellant filed the supplement in response to this Court's February 28, 2006 order directing him to file, within seven days from the date of the order, a supplement to his motion for extension of time containing copies of the judgment, any postjudgment motion that would extend the appellate timetable, and an affidavit or proof that he mailed his notice of appeal within the fifteen-day window for filing late notices of appeal. Although his belated supplement satisfies our timeliness concerns under Texas Rule of Appellate Procedure 26.3, we must determine whether he provided a reasonable explanation for filing his notice of appeal late under Rules 26.3(b) and 10.5(b)(1)(c). See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (remanding cause for determination of whether belatedly filed motion for extension provided a reasonable explanation for the late filing); Harlan v. Howe State Bank, 958 S.W.2d 380, 381 (Tex. 1997) (same); Boyd v. American Indem. Co., 958 S.W.2d 379, 380 (Tex. 1997) (same).
The Texas Supreme Court has defined "reasonable explanation" to mean "`any plausible statement of circumstance 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) (citation omitted); see Hagaman v. Morgan, 886 S.W.2d 398, 403 (Tex.App.-Dallas 1994, writ denied). The Supreme Court emphasized that "[a]ny conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance." Garcia, 774 S.W.2d. at 670.
Appellant provided the following explanation in his motion for extension of time: "Appellant had filed a motion to amend the judgment of the court below but the judgment could not be heard until January 30, 2006, which was after the deadline for filing the appeal but still a date within the plenary jurisdiction of the court below." In Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex.App.-Hous. [1st Dist.] 1999, pet. denied), the court of appeals held as unreasonable, appellant's explanation that "his lawyer told him that if he appealed the case while the trial court still had the authority to reinstate the case, that the trial court would reinstate the case and Weik would have a difficult time prosecuting his claim because of the trial court's displeasure with Weik." Weik, 988 S.W.2d at 439. The court reasoned that these actions showed an intentional course of conduct on the part of appellant to delay the filing of the appeal bond until after the trial court's plenary power expired and that the decision to file a late appeal bond was not therefore the result of inadvertence, mistake, or mischance. Similarly, in this case, appellant has made a conscious decision to ignore the appellate timetable in favor of the trial court's jurisdictional timetable. Courts have repeatedly held as unreasonable and noncompliant explanations that reflect appellant's awareness of the deadline for filing a timely notice of appeal but a decision to ignore it. See Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-64 (Tex. App-Hous. [14th Dist.] 2002, no pet.) (holding as unreasonable, appellant's explanation that he failed to file notice of appeal until he found an attorney to represent him on appeal at little or no cost); Rodman v. State, 47 S.W.3d 545, 548-49 (Tex.App.-Amarillo 2000, no pet.) (holding as unreasonable, explanation that because the State disclosed its intent to indict appellant for other crimes after expiration of the time for giving notice of appeal, appellant decided to appeal and preserve his eligibility for probation in upcoming trials); Kidd v. Paxton, 1 S.W.3d 309, 310-313 (Tex.App.-Amarillo 1999, no pet.) (holding as unreasonable, explanations that (1) counsel miscalculated the due date for filing notice of appeal when he still failed to file notice of appeal on the miscalculated date and (2) counsel's preoccupation with other cases without a detailed explanation of the complexities and relevant deadlines of the other cases).
Accordingly, we DENY appellant's February 13, 2006 motion for extension of time to file notice of appeal. We DISMISS this appeal for want of jurisdiction.