Mark Aubrey Rogers, Jr. v. State

Court of Appeals of Texas

Mark Aubrey Rogers, Jr. v. State

Court of Appeals of Texas·Decided February 7, 2017·No. 01-16-00968-CR·Published

Opinion

Opinion issued February 7, 2017

In The

Court of Appeals

For The

First District of Texas

Generally, an appellate court only has jurisdiction to review a final judgment of conviction. See Workman v. State, 343 S.W.2d 446, 447 (Tex. Crim. App. 1961); Means v. State, 825 S.W.2d 260, 260 (Tex. App.—Houston [1st Dist.] 1992, no pet.). When a new punishment hearing has been granted, there is no final conviction to appeal. See Norris v. State, No. 02–10–014–CR, 2010 WL 1854138, at *1 (Tex. App.—Fort Worth May 6, 2010, no pet.) (dismissing appeal for lack of jurisdiction because no final, appealable judgment existed after trial court granted motion for new punishment hearing); TEX. R. APP. P. 21.9(b) (“Granting a new trial restores the case to its position before the former trial . . . .”).

Because there is no longer an appealable judgment of conviction, we have no jurisdiction over this appeal and can take no action other than to dismiss the appeal. See Collier v. State, No. 14–13–00096–CR, 2013 WL 1197896, at *1 (Tex. App.— Houston [14th Dist.] Mar. 26, 2013, no pet.) (dismissing appeal for lack of jurisdiction when no final judgment existed after motion for new trial was granted). Despite receiving notice of our intent to dismiss this appeal for lack of jurisdiction, appellant did not file a response.

We dismiss the appeal for want of jurisdiction. We dismiss any pending motions as moot.

the nunc pro tunc order correcting the date to May 25, 2016) granting the State’s motion for a new punishment hearing.

PER CURIAM

Panel consists of Justices Massengale, Brown, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).

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Opinion issued February 7, 2017

In The

Court of Appeals

For The

First District of Texas

Generally, an appellate court only has jurisdiction to review a final judgment of conviction. See Workman v. State, 343 S.W.2d 446, 447 (Tex. Crim. App. 1961); Means v. State, 825 S.W.2d 260, 260 (Tex. App.—Houston [1st Dist.] 1992, no pet.). When a new punishment hearing has been granted, there is no final conviction to appeal. See Norris v. State, No. 02–10–014–CR, 2010 WL 1854138, at *1 (Tex. App.—Fort Worth May 6, 2010, no pet.) (dismissing appeal for lack of jurisdiction because no final, appealable judgment existed after trial court granted motion for new punishment hearing); TEX. R. APP. P. 21.9(b) (“Granting a new trial restores the case to its position before the former trial . . . .”).

Because there is no longer an appealable judgment of conviction, we have no jurisdiction over this appeal and can take no action other than to dismiss the appeal. See Collier v. State, No. 14–13–00096–CR, 2013 WL 1197896, at *1 (Tex. App.— Houston [14th Dist.] Mar. 26, 2013, no pet.) (dismissing appeal for lack of jurisdiction when no final judgment existed after motion for new trial was granted). Despite receiving notice of our intent to dismiss this appeal for lack of jurisdiction, appellant did not file a response.

We dismiss the appeal for want of jurisdiction. We dismiss any pending motions as moot.

the nunc pro tunc order correcting the date to May 25, 2016) granting the State’s motion for a new punishment hearing.

PER CURIAM

Panel consists of Justices Massengale, Brown, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).

Mark Aubrey Rogers, Jr. v. State, (Tex. Ct. App. 2017).

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