Opinion
03-23-00329-CR
09-22-2023
Kendell William Gant, The State of Texas, Appellant//Cross-Appellant, v. The State of Texas, Kendell William Gant, Appellee//Cross-Appellee,
Do Not Publish
FROM THE 22ND DISTRICT COURT OF COMAL COUNTY NO. CR2020-903, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Kelly and Theofanis
ORDER
PER CURIAM
Kendell William Gant was convicted of the offense of tempering with physical evidence and sentenced to four years' confinement. See Tex. Penal Code § 37.09(c). After the trial court signed a judgment of conviction, on May 26, 2023, Gant filed a notice of appeal and a motion for new trial. On June 21, 2023, the trial court signed an order granting his motion for new trial. The State subsequently filed a notice of appeal, challenging the trial court's grant of the new trial, which was docketed as a cross-appeal. See Tex. Code Crim. Proc. art. 44.01(a)(3) (allowing State in criminal case to appeal order granting new trial).
An order granting a new trial reinstates a case on the trial court's docket and "restores the case to its position before the former trial." See Tex.R.App.P. 21.9(c). We have no jurisdiction to consider the merits of an appeal filed by a defendant after the grant of a motion for new trial. See DeLeon v. State, No. 03-19-00071-CR, 2019 Tex.App. LEXIS 6177, at *1 (Tex. App.-Austin July 19, 2019, no pet.) (mem. op., not designated for publication) (citing Glaze v. State, 675 S.W.2d 768, 769-70 (Tex. Crim. App. 1984) (holding that neither court of appeals nor court of criminal appeals has jurisdiction to consider merits of case unless there is final conviction from which to appeal)). Accordingly, we dismiss the appeal as to Gant.
Because the State's appeal of the trial court's grant of new trial may proceed, we direct the Clerk of this Court to restyle the caption of this appeal:
The State of Texas, Appellant
v.
Kendell William Gant, Appellee
It is so ordered September 22, 2023.