Opinion
No. 09-06-011 CV
Opinion Delivered February 9, 2006.
On Appeal from the 221st District Court, Montgomery County, Texas, Trial Cause No. 02-08-05697-CV.
Appeal Dismissed.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
Upon receiving notice of appeal we questioned our jurisdiction. Only the appellant filed a response.
The trial court signed the judgment on January 7, 2005. Huff contends he received notice of judgment on April 5, 2005, more than 20 but less than 90 days from the date of judgment. See Tex. R. Civ. P. 306a(4). On April 19, 2005, Huff mailed a motion to extend the trial court's plenary power due to delayed notice of judgment and a motion for new trial. The documents were filed April 27, 2005, within 30 days of the date Huff claims he received notice of judgment. He filed notice of appeal on January 3, 2006.
Huff contends the time for filing notice of appeal runs from the denial of his motion for new trial. When applicable, Rule 306a(4), time periods run from the date of notice, which according to the appellant should be April 5, 2005. Assuming for the sake of argument that the trial court should have ordered all time periods to run from the date of notice, Huff filed a motion for new trial within thirty days of April 5, 2005, but then failed to file notice of appeal within ninety days of April 5, 2005. See Tex.R.App.P. 26.1(a)(1) (notice of appeal due in 90 days if motion for new trial timely filed). Assuming the time for filing notice of appeal could be extended for an additional 15 days, Huff failed to invoke our appellate jurisdiction by July 20, 2005. See Tex.R.App.P. 26.3 (appellate court may extend time to file notice of appeal by 15 days).
Huff filed a Motion for New Trial. A motion for new trial does not express the party's present intention to perfect appeal; therefore, it is not a bona fide effort to invoke appellate jurisdiction. See Interest of K.A.F., 160 S.W.3d 923, 927 (Tex. 2005); Lane v. Burkett, No. 13-04-290-CV, 2004 WL 1687913 at *1 (Tex.App.-Corpus Christi July 29, 2004, no pet.).
Huff failed to establish timely filing of notice of appeal. Accordingly, the appeal is dismissed for want of jurisdiction.