Opinion
No. 04-09-00614-CR
Delivered and Filed: March 17, 2010. DO NOT PUBLISH.
Appealed from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2009-CR-7136, Honorable George H. Godwin, Judge Presiding. Dismissed.
Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice.
MEMORANDUM OPINION
On September 23, 2009, appellant was convicted of possession of a controlled substance and sentenced to thirty-five years confinement. Appellant timely filed a notice of appeal on September 24, 2009, but thereafter, on October 23, 2009, filed a motion for new trial. The motion for new trial was granted by the trial court as to punishment on December 2, 2009. Given the December 2, 2009 order, it appeared to this court that there was no final judgment from which appellant could appeal. Accordingly, we ordered appellant to show cause why the appeal should not be dismissed as the notice of appeal was prematurely filed. Appellant filed a response in which he agrees the notice of appeal was prematurely filed, and the appeal should be dismissed. When the trial court grants a motion for new trial as to punishment only, the case is restored to the position it was in after the defendant was found guilty. TEX. R. APP. P. 21.9(c). By virtue of the December 2, 2009 order, appellant has been returned to the position in which he stood immediately following the finding of guilt, and trial on punishment will proceed as if the original punishment hearing had never occurred. See id. Accordingly, we hold there is no final, appealable judgment, and we order the appeal dismissed. See Workman v. State, 170 Tex. Crim. 621, 622, 343 S.W.2d 446, 447 (1961).