NO. 07-04-0315-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A AUGUST 18, 2004

______________________________ KERW IN GIBBS, APPELLANT

V. ALLSUP ENTERPRI SES, INC., AP PELLEE

_________________________________ FROM THE 6 4TH DIST RICT COURT OF HALE COU NTY; NO. A33080-0310; H ONORABLE ROB ERT KINKAID, J R., JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. OPINION Kerwin Gibbs appeals from an adverse summary judgment. Determining that he did notreasonably

explain t he need for an exte nsion of time to file his lat e-fi led notice of appeal, we di smiss for want of jurisdic tion.1 Further reference to a r ule of appellate pr ocedure wi ll be by r

eference to “TRAP_.” -2- The 64 th Distric

t Cou rt of Hale Count y grant ed summary ju dgment in favor of Allsup’s Enterprises, Inc., and agai nst Kevin G ibbs. Gibbsfiled a motion fo r new trial which was overrul ed as a matter of law. H e filed his noti ce of appeal late, but w ithin 15 days after the deadline for fil ing the notice. See T EX . R. A PP . P. 26.3. 1 Accompanying the late-filed notice of a ppe al was a moti on to enla rge ti me f or fi ling o f no tice of a ppe al whic h we deemed to be a motion for ex tension of time to file the notic e of appeal. Pursuant to direction of the court, Gi bbs fil ed fur ther do cumen tation explainin g his need for an extension of ti me. See Verburgt v . Dorner , 959 S.W .2d 615, 617-18 (Te x. 1997). Gibbs’ explanation for failin g to tim ely file hi s notice of appeal i s that his attorney was waiting to review the trial court’s order overruling his motion for new trial, after which his attorney w

as to confer w ith him and a final decisio n would be made about whether to appeal. The trial cour

t, howev er, did not enter an order overruling the motion for new trial. Gibbs does not set out f acts as to when he and his attorney made the final decision to appeal. It is appar

ent from his motion to enlarge ti me for filing noti ce and subs eque ntlyfiled affidavit from hisattorney, however , that once a final decision to appeal was made, the notice of appeal w

as filed. A“reasonable explanation ” for needing an ex tension of time to fil e notice of appeal includes any p lausi ble st ateme nt of c ircumstances indicating that the late fil ing was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance. See Garcia v. Kastner

Farms, Inc. , 774 S.W.2d 668, 670 (Tex. 1989) . If the decisi on to delay-3-

filin g notice of appeal unti l after the appropr iate deadline w as a deliberate or intentiona l decision, we may not extend the time for filing a notice of appeal, and we must di smiss for want of jurisdict ion. See Garcia , 774 S.W.2d at 670; Meshwert v. Meshwert , 549 S.W.2d 383, 384 (Tex. 1 977); Kidd v. Pax ton , 1 S.W .3d 309, 310 (Tex.App. --Amarillo 1999, pet. denied). Filing of Gibbs’ notice of appeal was intention ally delayed until a final decisio n had been made to appeal. Suc h circumstanc es do not comprise a r

easonable expl anation for needing an extensio n of time for filing notice of appeal. See Garcia , 774 S.W.2d at 670; Meshwert , 549 S.W.2d at 384; Kidd , 1 S.W.3d at 310. The appeal is dis missed for w ant of jurisdic tion.

Per Cu riam