Victor Magallanes v. State

• Court: Court of Appeals of Texas
• Decided: July 18, 2018
• Docket: 04-18-00062-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-18-00062-CR

Victor MAGALLANES, Appellant

v.

The STATE of Texas, Appellee

From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 13-1178-CR-A Honorable Doug Shaver, Judge Presiding

PER CURIAM

Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice

Delivered and Filed: July 18, 2018

DISMISSED FOR LACK OF JURISDICTION

On January 31, 2013, the Texas Court of Criminal Appeals granted appellant an out-of-

time appeal. On February 1, 2018, appellant filed a notice of appeal. On May 29, 2018, the trial

court clerk filed a supplemental clerk’s record which contained appellant’s motion for new trial

and the trial court’s May 22, 2018 order granting appellant’s motion for new trial as to punishment

only. Therefore, it appeared that there is no sentence to be appealed in this case, and we ordered

appellant to show cause in writing on or before June 18, 2018 why this appeal should not be

dismissed for lack of jurisdiction. Appellant has not filed a response. 04-18-00062-CR

When the trial court grants a motion for new trial, the case is restored to its position before

the former trial. TEX. R. APP. P. 21.9(b). Because there is no sentence to be appealed, we have no

jurisdiction over the appeal. See Waller v. State, 931 S.W.2d 640, 643-44 (Tex. App.—Dallas

1996, no pet.). Accordingly, we dismiss the appeal for want of jurisdiction.

DO NOT PUBLISH

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