                                                                          ACCEPTED
                                                                      04-15-00597-CV
                                                          FOURTH COURT OF APPEALS
                                                               SAN ANTONIO, TEXAS
                                                                10/19/2015 4:46:46 PM
                                                                       KEITH HOTTLE
                                                                               CLERK

                  No. 04-15-00597-CV

                                                FILED IN
             IN THE COURT OF APPEALS   4th COURT OF APPEALS
                                        SAN ANTONIO, TEXAS
         FOR THE FOURTH JUDICIAL CIRCUIT
                                       10/19/2015 4:46:46 PM
                SAN ANTONIO, TEXAS         KEITH E. HOTTLE
                                                  Clerk


               JULIA ANN HERNANDEZ

                      Appellant

                          v.
                JAQUELINE R. GOEDE

                       Appellee


  ON APPEAL FROM THE COUNTY COURT AT LAW N0.10
               BEXAR COUNTY, TEXAS
                Cause No. 2015CV00194


APPELLEE'S REPLY TO APPELLANT'S RESPONSE TO COURT'S
      ORDER REGARDING TIMELINESS OF APPEAL


                   PATRICK C. BERNAL
                   State Bar No. 02208750
                   CLARISSA M. RODRIGUEZ
                   State Bar No. 24056222
                   DENTON NAVARRO ROCHA BERNAL HYDE & ZECH
                   A Professional Corporation
                   2517 N. Main Avenue
                   San Antonio, Texas 78212
                   Telephone: (210) 227-3243
                   Facsimile: (210) 225-4481
                   COUNSEL FOR APPELLEE
      This appeal results from a Motion to Dismiss filed by Jacqueline R. Goede

("Appellee") pursuant to §27 .003 of the Texas Civil Practice and Remedies Code on

January 30, 2015. The trial court granted the Motion and dismissed the lawsuit on

May 26, 2015, pursuant to §27.005. Subsequent to the entry of the dismissal order,

Julia Ann Hernandez ("Appellant") notified the undersigned via email of the filing

of a Motion for New Trial on June 25, 2015. See, Mr. Penguin Tuxedo Rental &

Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 371-72 (Tex. 1990) (per curiam) (a

document is filed when it is given into the custody of the clerk; the file stamp is

prima facie evidence of the date of filing, but it is subject to rebuttal). Regardless

of whether Appellant prevails on the jurisdictional issue related to the motion for

new trial, Appellant untimely filed her notice of appeal as discussed further below.

A.    Appellant Did Not Comply With the Accelerated Appeal Deadlines
      Pursuant to Texas Civil Practice and Remedies Code Chapter 27.

      Section 27 .008(b) of the Texas Civil Practice and Remedies Code provides:

"An appellate court shall expedite an appeal or other writ, whether interlocutory or

not, from a trial court order on a motion to dismiss a legal action under Section

27.003 ... " [Emphasis added.] Rule 28.l(a) of the Texas Rules of Appellate

Procedure governs accelerated appeals required by statute to be expedited.

Perfection of an accelerated appeal is accomplished by filing a notice of appeal

within twenty (20) days after the judgement nr order is signed. See Tex. R. App. P.

28.l(b ); 26.l(b ). Under an accelerated appeal and pursuant to the statute,
                                          2
Appellant's notice of appeal was due on June 15, 2015.

      An accelerated appeal can also be perfected by filing a motion to extend time

to file notice of appeal. See, Tex. R. App. P. 26.l(b); 26.3. Filing a motion for new

trial or any other post-trial motion does not extend the timelines to perfect an

accelerated appeal. See, Tex. R. App. P. 28.l(b). Appellant's deadline to file a

motion to extend time to file a notice of appeal was June 30, 2015.

      As a result of Appellant's failure to file either a notice of appeal on June 15,

2015, or a motion to extend time to file a notice of appeal on June 30, 2015,

Appellant's Notice of Appeal is untimely and this appeal should be dismissed.

B.    Appellant Also Failed to Timely File A Notice of Appeal Under General
      Appellate Deadlines.

      In the alternative, Appellant failed to timely file a notice of appeal or motion

to extend pursuant to the general appellate deadlines. An appeal is timely perfected

within ninety (90) days after the date of the judgment. See, Tex. R. App. P. 26.l(a).

A motion to extend time to file notice of appeal may also apply to perfect an appeal

if filed within fifteen (15) days after the deadline to file the notice of appeal. See,

Tex. R. App. P. 26.3.

      Appellant's notice of appeal was due to be filed in the trial court on August

24, 2015, ninety (90) days after the trial court's Order was signed. See, Tex. R. App

P. 26.l(a). Appellant filed a Notice of Appeal in the trial court on September 9,



                                           3
2015 and in the Court of Appeals on September 11, 2015. Appellant's deadline to

file a notice of appeal and a motion to extend time to file notice of appeal expired on

September 8, 2015. See, Tex. R. App. P. 26.3. Appellant failed to timely file a

notice of appeal and a motion to extend the deadline to file a notice of appeal in this

Court; therefore, this appeal should be dismissed.


                                  CONCLUSION

      Either by way of the expedited appellate rules as stated in Chapter 27 of the

Texas Civil Practice and Remedies Code or general appellate rules related to

perfecting an appeal, Appellant failed to meet the timelines to perfect her appeal.

Therefore, this appeal should be dismissed in its entirety.




                                           4
                                       Respectfully submitted,


                                       DENTON NAVARRO ROCHA BERNAL
                                       HYDE&ZECH
                                       A Professional Corporation
                                       2517 N. Main Avenue
                                       San Antonio, Texas 78212
                                       (210) 227-3243
                                       (210) 225-4481 Facsimile
                                       patrick.bernal@rampage-sa.com
                                       clarissa.rodriguez@rampage-sa.com



                                BY:

                                       State Bar No. 02208750
                                       CLARISSA M. RODRIGUEZ
                                       State Bar No. 24056222
                                       COUNSEL FOR APPELLEE


                         CERTIFICATE OF SERVICE

I certify that I served a true and correct copy of the foregoing Motion to Dismiss on
the Appellant in this action on this 19th day of October, 2015 by efile electronic
service.

Chris Carmona                          E-FILE NOTIFICATION
Law Office of Chris Carmona            AND FAX NO.: 832-460-2724
P.O. Box 7137
Houston, Texas 77248




                                         5
