




Dismissed and Memorandum Opinion filed March 19, 2009







Dismissed
and Memorandum Opinion filed March 19, 2009.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-09-00091-CV
____________
 
ELAINE WILSON, Appellant
 
V.
 
GERARDO PEREZ MARTINEZ, JR.,
ELIZABETH NICOLE MARTINEZ, JERARDO PEREZ MARTINEZ and LINDA SUTTON MARTINEZ,
Appellees
 

 
On Appeal from the
334th District Court
Harris County, Texas
Trial Court Cause No.
2007-40765
 

 
M E M O R A N D U M   O P I N I O N
This is an attempted appeal from a final judgment signed
September 24, 2008.  Appellant filed a timely request for findings of fact and
conclusions of law and a timely motion to modify the judgment. 




When an appellant has filed a timely motion for new trial,
motion to modify the judgment, motion to reinstate, or request for findings of
fact and conclusion of law, the notice of appeal must be filed within ninety
days after the date the judgment is signed.  See Tex. R. App. P. 26.1(a).  Accordingly, appellant=s notice of appeal
due within ninety days after judgment, on or before December 23, 2008.  The
notice was not filed until January 14, 2009.
Appellant=s notice of appeal was not filed timely. 
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 (Tex. 1997) (construing the predecessor to Rule 26); see also
Tex. R. App. P. 26.3 (permitting
an extension of time if the notice of appeal is filed within 15 days of its due
date). In this case, the fifteenth day after the due date of the notice of
appeal was January 7, 2009. Appellant=s notice of appeal
was not filed until January 14, 2009; thus it was not filed within the
fifteen-day period provided by rule 26.3.[1] 

On February 18, 2009, notification was transmitted to all
parties of the Court=s intention to dismiss the appeal for want
of jurisdiction.  See Tex. R.
App. P. 42.3(a).  Appellant filed no response. 
Accordingly, the appeal is ordered dismissed.
 
PER CURIAM
 
 
Panel consists of Chief Justice
Hedges and Justices Anderson and Seymore. 




[1]   The record reflects that the notice of appeal was
not file-stamped in the mail processing department of the Harris County
District Clerk=s office, thus indicating it was hand delivered.  In
addition, the certificate of service on the notice is dated January 14, 2009. 
Therefore, appellant may not avail herself of the mailbox rule to extend the
deadline.  See Tex. R. App. P. 9.2(b).  


