BURTON v. STATE (2025)

OPINION

On April 17, 2025, appellant filed a notice of appeal from his conviction for the offense of aggravated sexual assault. On June 27, 2025, the trial court granted appellant's motion for new trial. On July 9, 2025, the State filed a notice of appeal from the trial court's order granting appellant's motion for new trial. See Tex. Code Crim. Proc. art. 44.01(a)(3). That appeal is pending in appellate cause number 14-25-00566-CR.

“The granting of a motion for new trial restores the case to its position before the former trial, including, at any party's option, arraignment or pretrial proceedings initiated by that party.” Tex. R. App. P. 21.9(b). The trial court's grant of appellant's motion for new trial rendered appellant's appeal from his conviction moot. See Waller v. State, 931 S.W.2d 640, 643–44 (Tex. App.—Dallas 1996, no pet.).

On July 15, 2025, we notified the parties that the appeal would be dismissed for lack of jurisdiction unless a party demonstrated that the court has jurisdiction. In response, appellant and the State filed a “joint motion to retain jurisdiction.” The parties urged this court to retain appellant's appeal until final disposition of the State's appeal in the interest of judicial economy. Further, the parties argue that dismissing this appeal would interfere with appellant's right “to vindicate any legal errors that resulted in the judgment of conviction.”

Appellant does not forfeit his right to challenge his conviction on appeal if we dismiss this appeal. If we reverse the trial court's order granting appellant's motion for new trial, the trial court will be instructed to reinstate the judgment of conviction in accordance with the jury's verdict. See State v. Guilbault, 644 S.W.3d 727, 738 (Tex. App.—Austin 2022, pet. ref'd) (reversing the trial court's order granting a motion for new trial with instructions to reinstate the judgment of conviction). At that point, appellant may appeal his judgment of conviction. As it stands now, there is no final judgment of conviction to be appealed; therefore, we lack jurisdiction over this appeal. See Glaze v. State, 675 S.W.2d 768, 769-70 (Tex. Crim. App. 1984) (holding that neither the Court of Appeals nor Court of Criminal Appeals has jurisdiction to consider the merits of case unless there is a final conviction from which to appeal); Waller, 931 S.W.2d at 643-44 (determining that appellate court had no jurisdiction to review appeal because the trial court's granting of a motion for new trial left no sentence to be appealed).

We deny the parties’ joint motion to retain jurisdiction and dismiss the appeal.

PER CURIAM