Jonathan Ray Gray v. State

Opinion

ACCEPTED

03-15-00235-CR

6659349

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/26/2015 12:06:49 PM

JEFFREY D. KYLE

CLERK

CAUSE NO. 03-14-00235-CR

FILED IN

3rd COURT OF APPEALS

_________________________________________________

AUSTIN, TEXAS

8/26/2015 12:06:49 PM

IN THE COURT OF APPEALS JEFFREY D. KYLE FOR THE THIRD DISTRICT OF TEXAS Clerk AUSTIN DIVISION

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JONATHAN RAY GRAY § §

v. § §

STATE OF TEXAS §

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APPELLANT’S MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION AND REMAND FOR A NEW TRIAL

_______________________________________________

Justin Bradford Smith

Texas Bar No. 24072348

Harrell, Stoebner, & Russell, P.C.

2106 Bird Creek Drive

Temple, Texas 76502

Phone: (254) 771-1855

FAX: (254) 771-2082

Email: justin@templelawoffice.com

ATTORNEY FOR APPELLANT

Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial Page 1

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellant, JONATHAN RAY GRAY, who files this Motion to Dismiss Appeal for Want of Jurisdiction and Remand for a New Trial, and shows unto the Court as follows:

I.

FACTS

1. Appellant pled guilty to burglary of a habitation, (VI R.R. at 9), and after a hearing the trial court found Appellant guilty and imposed sentence on March 30, 2015. (VII R.R. at 4-15) (I C.R. at 33-42; 56).

2. Appellant then timely filed a motion for new trial on April 21, 2015.

(I C.R. at 61-62); Tex. R. App. P. 21.4(a).

3. Within the time provided by our rules, the trial court granted the motion for new trial by written order, without limiting the order to punishment. (I C.R. at 73; 75); Tex. R. App. P. 21.8(a)-(b).

4. The State did not appeal this decision. Texas Code of Criminal Procedure art. 44.01(a)(3); Tex. R. App. P. 26.2(b).

II.

ARGUMENT AND AUTHORITIES

5. “Granting a motion for new trial restores the case to its position before the former trial”. Tex. R. App. P. 21.9. Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial Page 2

6. “Because there is no sentence to be appealed, [an appellate court has]

no jurisdiction to consider appellant’s appeal”. Waller v. State, 931 S.W.2d 640, 643-644 (Tex. App.—Dallas 1996, no pet.).

7. Accordingly, this Court must dismiss Appellant’s appeal and remand the case to the trial court for a new trial. Id. at 644.

8. Despite the fact that Appellant’s plea of guilty resulted in “a ‘unitary trial’ to determine the remaining issue of punishment”, Carroll v. State, 975 S.W.2d 630, 631 (Tex.Crim.App.1998), because the trial court granted a new trial without limitation to punishment only, this Court must remand for an entirely new trial. Cf. State v. Evans, 843 S.W.2d 576 (Tex. Crim. App. 1992) (order granting “Motion to Withdraw Plea of Nolo Contendere”1 was effectively an order granting new trial as a whole, which it was within the trial court’s authority to do) with State v. Davis, 349 S.W.3d 535, 538 (Tex. Crim. App. 2011) (order reducing defendant’s sentence in response to a “Motion for Reconsideration or Reduction of Sentence” granted a new trial as to punishment only). Here, Appellant’s motion was in form and substance a motion for an entirely new trial, unlike the limited motion in Davis, and the trial court granted it without limitation, as in Evans. (I C.R. at 61- 62; 73; 75).

1 A plea of nolo contendere results in a “unitary proceeding” as a plea of guilty does here. Arismendez v. State, 595 S.W.2d 535 (Tex. Crim. App. 1980) (“a guilty or nolo contendere plea proceeding should not be bifurcated”).

Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial Page 3 9. Therefore, this Court must dismiss this appeal for want of jurisdiction and remand to the trial court for a new trial.

III.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court grant this motion, dismiss his appeal for want of jurisdiction, and remand the case to the trial court for a new trial.

Respectfully submitted:

/s/ Justin Bradford Smith Justin Bradford Smith

Texas Bar No. 24072348

Harrell, Stoebner, & Russell, P.C.

2106 Bird Creek Drive

Temple, Texas 76502

Phone: (254) 771-1855

FAX: (254) 771-2082

Email: justin@templelawoffice.com

ATTORNEY FOR APPELLANT

Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial Page 4

CERTIFICATE OF SERVICE

I hereby certify that, on August 26, 2015, a true and correct copy of the Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for New Trial was provided to counsel below via eservice:

Bob Odom Bell County District Attorney’s Office P.O. Box 540 Belton, Texas 76513 Email: DistrictAttorney@co.bell.tx.us Attorney for the State

/s/ Justin Bradford Smith Justin Bradford Smith

Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial Page 5