Opinion issued April 21, 2020

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-20-00079-CV

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JOHN CARPENTER, Appellant

V.

MICHAEL CONSTANTELO, Appellee

On Appeal from the 200th District Court

Travis County, Texas1

Trial Court Case No. D-1-FM-18-004337

MEMORANDUM OPINION

1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the 

Third District of Texas to this Court pursuant to its docket-equalization powers. See

Misc. Docket No. 19–9120 (Tex. Dec. 20, 2019); see also TEX. GOV’T CODE ANN. 

§ 73.001 (“The supreme court may order cases transferred from one court of appeals 

to another at any time that, in the opinion of the supreme court, there is good cause 

for the transfer.”).
2

Appellant, John Carpenter, attempts to appeal from the trial court’s final 

protective order entered against appellant on August 1, 2018. Appellee, Michael 

Constantelo, has filed a motion to dismiss the appeal for want of jurisdiction, or in 

the alternative, a motion to affirm the judgment of the trial court and award damages 

to appellee for appellant’s filing of a frivolous appeal.

2

We dismiss the appeal.

Generally, a notice of appeal is due within thirty days after the judgment is 

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended 

to ninety days after the date the judgment is signed if, within thirty days after the 

judgment is signed, any party files a motion for new trial, motion to modify the 

judgment, or motion to reinstate. TEX. R. APP. P. 26.1(a); see also TEX. R. CIV. P. 

329b(a), (g). The time to file a notice of appeal also may be extended if, within 

fifteen days after the deadline to file the notice of appeal, a party properly files a 

motion for extension. See TEX. R. APP. P. 10.5(b), 26.3. 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 Texas Rule of Appellate Procedure 26.1, but 

within the fifteen-day extension period provided by rule 26.3. See TEX. R. APP. P. 

26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

2 See TEX. R. APP. P. 45.
3

Here, appellant seeks to appeal from the final protective order signed by the 

trial court on August 1, 2018. See TEX. FAM. CODE ANN. § 81.009 (providing final 

protective order “rendered under this subtitle may be appealed”). On August 24, 

2018, appellant filed a “Motion to Set Aside Default Judgment” in the trial court. 

While this motion could be construed as a motion to modify the trial court’s

judgment, which would extend appellant’s deadline to timely file a notice of appeal, 

it is not necessary for this Court to make that determination. Here, before the trial 

court considered appellant’s motion, appellant, on September 20, 2018, filed a 

“Notice of Nonsuit and Withdrawal of Motion to Set Aside Default Judgment;” thus, 

withdrawing his motion and preventing it from extending his notice of appeal 

deadline. See TEX. R. APP. P. 26(a)(2). 

Still yet, even assuming appellant had timely filed a motion for new trial or 

motion to modify the judgment, appellant’s deadline to file a notice of appeal would 

have been November 29, 2018, or December 14, 2018, at the latest, with a 

fifteen-day extension. See TEX. R. APP. P. 4.1, 26.1, 26.3; see also TEX. R. CIV. P.

329b(g). Appellant did not file his notice of appeal until December 23, 2019, 509 

days after the trial court signed the final protective order.

Without a timely filed notice of appeal, this Court lacks jurisdiction over 

appellant’s appeal. See TEX. R. APP. P. 25.1(a). Accordingly, we grant appellee’s 

motion to the extent it seeks dismissal of the appeal and dismiss the appeal for want 
4

of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss any other pending 

motions as moot.

PER CURIAM

Panel consists of Justices Keyes, Lloyd, and Hightower.