No. 05-09-00487-CR
Opinion Filed June 30, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-59211-M.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice LANG.
Following a plea of not guilty, appellant Hubert Jackson, Jr. was convicted by a jury of possession with intent to deliver heroin in an amount of one gram or more, but less than four grams. Appellant pleaded true to one enhancement paragraph and the jury found that enhancement paragraph true. Punishment was assessed by the jury at fifty-five years' imprisonment and a fine of $10,000. Subsequently, the trial court granted appellant's motion requesting a new trial "on punishment only" and assessed punishment at twenty years' imprisonment and a fine of $10,000. In a single issue on appeal, appellant contends the trial court "lacked authority" to grant a motion for new trial as to punishment only. For the reasons below, we dismiss this appeal.
I. BACKGROUND
This case involves two trial court judgments. Initially, following the jury's finding of guilt and assessment of punishment as described above, the trial court sentenced appellant and signed a judgment dated April 22, 2009. Additionally, the trial judge signed a certification of appellant's right to appeal dated April 22, 2009, that stated appellant had the right of appeal. On that same date, following his sentencing, appellant filed (1) a notice of appeal and (2) a motion for new trial on the ground that "the verdict is contrary to the law and the evidence." Appellant's April 22, 2009 motion for new trial was overruled by the trial court. On May 7, 2009, appellant filed a second motion for new trial, which included a handwritten notation stating "on punishment only." At a hearing on that date, appellant waived "the right to appeal further" and the trial court granted appellant's motion for new trial "on punishment only." Then, the trial court assessed punishment at twenty years' imprisonment and a fine of $10,000. A second judgment, dated May 7, 2009, was signed by the trial court. Additionally, the trial court signed a certification of appellant's right to appeal dated May 7, 2009, that stated appellant had "waived the right of appeal." Appellant filed a December 21, 2009 "Agreed Motion to Abate Appeal" and a January 5, 2010 "Agreed Supplemental Motion to Abate Appeal" in this Court. The ground asserted for abatement was that the trial court had no "authority" to grant a motion for new trial as to punishment only. Appellant contended in his motions that "when a trial court purports to grant a motion for new trial as to punishment only, the grant is one of a new trial generally," which restores the case to its state before a finding of guilt. Appellant argued that because no finding of guilt had been made, this Court should "abate this appeal so that the trial court can properly dispose of [a]ppellant's motion for new trial." This Court denied both of appellant's motions to abate this appeal on January 13, 2010. II. DISMISSAL OF THIS APPEAL
In his brief on appeal, appellant contends "[t]here has been no finding of guilt in this case, and therefore, the trial court's imposition of a 20-year sentence is unlawful." Appellant argues The trial court's attempt to grant Appellant's motion for new trial as to punishment only was ineffective because it lacked authority to do so. The trial court's order restored the case to the position it was in before there was a finding of guilt. This Court should therefore reverse the trial court's judgment and remand this cause for a new hearing on Appellant's second motion for new trial. The State responds that appellant's challenge to the trial court's authority to grant his motion is based on cases decided before the 2007 amendment to the Texas Rules of Appellate Procedure and is without merit. Moreover, the State argues, because appellant filed the motion for a new trial on punishment only, he is now estopped from asserting the trial court lacked authority to grant his motion. Additionally, the State contends (1) because the April 22, 2009 judgment no longer includes a sentence, "insofar as this appeal might be viewed as an appeal from the original judgment, it should be dismissed as moot," and (2) "[i]nsofar as this appeal might be viewed as an appeal from the [May 7, 2009] judgment, it should be dismissed based on Appellant's waiver of appeal as well as his failure to file a notice of appeal from that judgment." A. Applicable Law
A timely notice of appeal is necessary to invoke this Court's jurisdiction. See Tex. R. App. P. 25.2 (b); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Davis v. State, 130 S.W.3d 519, 520 (Tex. App.-Dallas 2004, no pet.). A notice of appeal by a defendant in a criminal case must be filed (1) within thirty days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order, or (2) within ninety days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a). The rules of appellate procedure permit a party in a criminal case to file a premature notice of appeal where the notice of appeal is filed after a finding of guilt has been made, but before sentencing. See Tex. R. App. P. 27.1(b); Franks v. State, 219 S.W.3d 494, 497 (Tex. App.-Austin 2007, pet. ref'd); see also Gipson v. State, 268 S.W.3d 862, 863-64 (Tex. App.-Waco 2008, no pet.). The Texas Rules of Appellate Procedure provide that "new trial" means "the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt." Tex. R. App. P. 21.1(a). "New trial on punishment" means "a new hearing of the punishment stage of a criminal action after the trial court has, on the defendant's motion, set aside an assessment of punishment without setting aside a finding or verdict of guilt." Tex. R. App. P. 21.1(b). Granting a new trial restores the case to its position before the former trial. Tex. R. App. P. 21.9(b). Granting a new trial on punishment restores the case to its position after the defendant was found guilty. Tex. R. App. P. 21.9(c). B. Application of Law to Facts
The record shows that the only notice of appeal in this case was filed on April 22, 2009, following appellant's initial sentencing on that same date. On May 7, 2009, the trial court granted appellant's motion for new trial "as to punishment only." Appellant contends the granting of that motion restored the case to its position before the former trial. See Hanlan v. State, Nos. 05-98-00761-CR 05-98-00762-CR, 1999 WL 437017, at *1 (Tex. App.-Dallas June 30, 1999, no pet.) (not designated for publication) (trial court's granting of new trial as to "punishment only," which was not permitted by law, had effect of granting motion for new trial, but improperly limiting scope, thus necessitating remand for new trial). By contrast, the State asserts the granting of that motion restored the case to its position after appellant was found guilty. See State v. Stewart, 282 S.W.3d 729, 740-41 (Tex. App.-Austin 2009, no pet.); Tex. R. App. P. 21.9(c). However, regardless of whether the effect of the trial court's granting of the motion at issue was to restore the case to its position before trial or to restore it to its position after appellant was found guilty, the granting of that motion left no final, appealable judgment in place. See Tex. R. App. P. 21.9(b)-(c). Thus, this Court is without jurisdiction with respect to appeal of the trial court's April 22, 2009 judgment. See Waller v. State, 931 S.W.2d 640, 643-44 (Tex. App.-Dallas 1996, no writ) (because trial court's granting of motion for new trial left no sentence to be appealed, appellate court had no jurisdiction to consider appeal); see also Brown v. State, Nos. 05-08-01137-CR, 05-08-01138-CR, 05-08-01139-CR, 2010 WL 255959, at *1 (Tex. App.-Dallas Jan. 25, 2010, no pet.) (mem. op., not designated for publication) (after granting of new trial by trial court, appellate court had no jurisdiction as to appeal of original judgment) (citing Waller, 931 S.W.2d at 643-44); Norris v. State, No. 2-10-014-CR, 2010 WL 1854138, at *1 (Tex. App.-Fort Worth May 6, 2010, no pet.) (mem. op., not designated for publication) (where trial court properly granted motion for new trial as to punishment only, no final, appealable judgment remained and dismissal of appeal was proper). Further, because appellant's April 22, 2009 notice of appeal was filed after his sentence was imposed, that notice of appeal was not "premature" pursuant to rule 27.1. See Tex. R. App. P. 27.1(b); Franks, 219 S.W.3d at 497. Therefore, in order to appeal with respect to the May 7, 2009 judgment, appellant was required to file a new notice of appeal within the proper time period after the trial court re-sentenced him. See Pilarcik v. State, No. 08-08-00118-CR, 2008 WL 4429529, at *1 (Tex. App.-El Paso Oct. 2, 2008, no pet.) (mem. op., not designated for publication) (where trial court properly granted motion for new trial as to punishment only, then re-sentenced appellant, new notice of appeal was required); see also Brown, 2010 WL 255959, at *1-*2 (notice of appeal filed as to original judgment was not effective to challenge judgment that followed granting of new trial); Propes v. State, No. 05-09-01077-CR, 2010 WL 93463, at *1 (Tex. App.-Dallas Jan. 12, 2010, no pet.) (mem. op., not designated for publication) (new notice of appeal filed by appellant after trial court's granting of motion for new trial and re-sentencing). Appellant did not do so. Accordingly, we must dismiss this appeal for lack of jurisdiction. See Tex. R. App. P. 25.2(b); Slaton, 981 S.W.2d at 210; Davis, 130 S.W.3d at 520. III. CONCLUSION
Based on the record and the above analysis, we conclude this Court lacks jurisdiction over this appeal. Therefore, we dismiss this appeal for want of jurisdiction.