Opinion
NUMBER 13-19-00205-CR
07-18-2019
FRANCISCO ESCOBEDO, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court of Nueces County, Texas.
ORDER
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Per Curiam Order
By memorandum opinion issued on June 6, 2019, this Court dismissed this appeal for lack of jurisdiction. See Escobedo v. State, No. 13-17-00205-CR, 2019 WL 2384166, *1 (Tex. App.—Corpus Christi-Edinburg June 6, 2019, no pet.) (mem. op.). This cause is now before the Court on appellant Francisco Escobedo's motion to reconsider denial of right to appeal. This Court concludes that appellant's motion is meritorious and we grant this motion as stated herein.
In cause number 13-16-00590-CR, appellant filed his notice of appeal regarding his conviction for aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021. While his appeal was pending with this Court, the trial court granted appellant's motion for new trial. This Court denied appellant's request to stay his appeal and dismissed his case for want of jurisdiction. See Escobedo v. State, 2017 WL 3431828, at *1 (Tex. App.—Corpus Christi-Edinburg August 10, 2017, no pet.) (mem. op.).
In cause number 13-16-00684-CR, the State appealed the trial court's granting of appellant's motion for new trial. On December 19, 2018, this Court vacated the trial court's granting of a new trial to appellant and reinstated his previous conviction. See Escobedo v. State, 2018 WL 6627321, *1 (Tex. App.—Corpus Christi-Edinburg December 19, 2018, no pet.) (mem. op.). Appellant did not timely appeal after the reinstatement of his current judgment and sentence.
An order granting a new trial restores the case to its position before the former trial and there is no longer a judgment in place. See TEX. R. APP. P. 21.9(b); Waller v. State, 931 S.W.2d 640, 64-44 (Tex. App.—Dallas 1996, no pet.); see also State v. Wilkins, No. 05-12-00154-CR, 2014 WL 465820, at *7 (Tex. App.—Dallas Feb. 4, 2014, pet. ref'd.) (not designated for publication) (stating that the court of appeals had no jurisdiction to entertain defendant's cross-appeal points on state's appeal, even when defendant properly noticed appeal, because the new trial order the State attacked reversed the final judgment the defendant sought to attack). The appellant cannot proceed with a cross- appeal in the State's appeal. State v. Kost, 785 S.W.2d 936, 940 (Tex. App.—San Antonio 1990, pet. ref d.) (denying cross-appeal in state's appeal of motion to suppress); State v. Vogel, 852 S.W.2d 567, 570 (Tex. App.—Dallas 1992, pet. ref'd) (same). Nevertheless, a State's appeal is not supposed to "interfere" with the defendant's right to appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.01, 44.02.
Accordingly, the Court, having fully examined and considered appellant's motion to reconsider the denial of the right to appeal is of the opinion that, in the interest of justice, appellant's motion to reconsider the denial of the right to appeal should be granted. Accordingly, we withdraw our previous opinion and judgment. Said cause remains pending before the Court. Appellant's brief will be due when calculated by Texas Rule of Appellate Procedure 38.6. See TEX. R. APP. P. 38.6.
It is so ORDERED.
PER CURIAM Delivered and filed the 18th day of July, 2019.