NO. 07-08-0334-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 3, 2008

______________________________

JESSE WALKER AND MELISSA WALKER, APPELLANTS

v.

HUNTERS CROSSING, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

NO. 96,861; HON. W. F. “CORKY” ROBERTS, PRESIDING

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellants Jesse and Melissa Walker filed a notice of appeal from a judgment entered against them on August 14, 2008. The clerk’s record was filed in this Court on October 13, and the reporter’s record, on October 9, 2008.

          By letter of November 20, 2008, the Court reminded appellants that their brief was due no later than Wednesday, November 12, and thus was past due. The letter notified appellants that their appeal was subject to dismissal for want of prosecution unless their brief was filed, along with a motion for extension of time, by Monday, December 1. See Tex. R. App. P. 38.6.

          An appellate court may dismiss an appeal for want of prosecution if an appellant fails to timely file a brief unless the appellant reasonably explains the failure and the appellee is not significantly injured by the failure. Tex. R. App. P. 38.8(a)(1). On its own motion, with ten days’ notice to the parties, an appellate court may dismiss a civil appeal for want of prosecution or failure to comply with a notice from the clerk requiring a response or other action within a specified time. Tex. R. App. P. 42.3(b), (c). Here, appellants have not filed a brief or a motion for extension by the date specified by the Court, despite notice that their failure to do so would subject the appeal to dismissal. The Court has given the parties the required ten days’ notice. 

          Accordingly, we dismiss appellants’ appeal for want of prosecution and failure to comply with a notice from the Court. See Tex. R. App. P. 38,8(a)(1); 42.3(b), (c).

James T. Campbell

Justice

ti 2000, pet ref'd). Thus, we do not find either Birmingham or Mr. Penguin controlling. Though we have no jurisdiction over the appeal, we would admonish appellant that he may still be able to obtain relief by seeking an out of time appeal from the Texas Court of Criminal Appeals. Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time appeal from final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure). And, with that admonishment, we deny appellant's motion to continue the appeal and dismiss the cause for want of jurisdiction.

Per Curiam

Do not publish.

1.Attached to the "Motion for Continuation of Appeal" is a copy of a letter from trial counsel, dated November 16, 2004, to the trial court and requesting the latter to sign the enclosed notice of appeal and certify appellant's right to appeal. The trial court did so on November 18, 2004. Trial counsel, further, requested that the trial court file the notice with the "District Clerk." Appellant concedes that the notice was not filed with the court clerk until November 22, 2004. Furthermore, he did not file a motion to extend the deadline by which to perfect his appeal within 15 days from the date the notice was due.