Murillo, Ralph Jr. v. State

• Court: Court of Appeals of Texas
• Decided: September 16, 1999
• Docket: 05-98-01575-CR
• Status: Published

Opinion

Court of Appeals Mfth district nf Suxas at Dallas

JUDGMENT

RALPH MURRJXLO, JR., Appellant Appeal from the Criminal District Court No. 2 of Dallas County, Texas. (Tr.Ct.No. F95- No. 05-98-01575-CR V. 26584-LI). Opinion delivered by Chief Justice Thomas, THE STATE OF TEXAS, Appellee Justices Kinkeade and O'Neill participating.

Based on the Court's opinion of this date, we DISIVIISS the appeal for want of jurisdiction.

Judgment entered September 16, 1999.

LfNDA THOMAS £r~ CHIEF JUSTICE ' DISMISSED and Opinion Filed September 16,1999

In The

Court nf Appeals Mftti district nf utexas at Dallas No. 05-98-01575-CR

RALPH MURRILLO, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F95-26584-LI

OPINION

Before Chief Justice Thomas and Justices Kinkeade and O'Neill Opinion By Chief Justice Thomas

Ralph Murrillo, Jr. was convicted by a jury of burglary of a habitation on November 12,

1996. During the trial proceedings, appellant absconded. Therefore, sentence was not imposed in

open court until September 9, 1998, after appellant was recaptured. Appellant filed a motion for

new trial and a noticeof appeal. The trial court granted the motion for new trial.1 The Court now

The motion for new trial is a preprinted form which states:

Now comesthe Defendant in the above cause and by his Attorney, andmoves the Court to grant him a NewTrial herein for the good and sufficient reason that the verdict is contrary to the law and the evidence.

WHEREFORE, Defendant praysthe Court grant a new trialherein.

The trialcourt circled "granted"and crossedout "overruled." has before itappellant's May 12,1999 motion to dismiss theappeal, inwhich heasserts thatbecause

the motion for new trial was granted, there isno judgment or sentence to appeal. The State did not

respond to the motion. For the following reason, we conclude we have no jurisdiction over the

appeal.

If a trial court grants a motion for new trial, it restores the case to its position before the

former trial. See TEX. R. APP. P. 21.9. Because there is no sentence to be appealed, we have no

jurisdiction to consider appellant's appeal inthis case. See Waller v. State, 931 S.W.2d 640,643-44

(Tex. App.—Dallas 1996, no pet). Accordingly, we grant appellant's motion and dismiss the

appeal for want ofjurisdiction.2

LINDA THOMAS CHIEF JUSTICE

Do Not Publish Tex. R. App. P. 47

2 Appellant also asks that we direct the trial court to enter ajudgment of acquittal because theonlyground moved upon for new trial challenged the sufficiency ofthe evidence. Because we have no jurisdiction over the appeal, wemake no order regarding the disposition ofthe case upon issuance ofthe opinion.

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