MELVIN FORREST BERRY JR APPELLANT v. << (2010)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

THE STATE OF TEXAS

STATE

MEMORANDUM OPINION1

Appellant Melvin Forrest Berry, Jr. filed a timely notice of appeal challenging his conviction and sentence for the state jail felony of theft, enhanced.   The trial court subsequently granted his motion for new trial, to which the State agreed, and then on the same day convicted and sentenced Appellant for the same offense pursuant to a plea bargain, which included express waivers of his prior notice of appeal, any pretrial motions, and any and all rights of appeal.   The trial court's certification provides that Appellant has no right of appeal.   Appellant has not filed another notice of appeal.

Because the trial court granted Appellant's motion for new trial, making any appeal from the original judgment moot,² and because Appellant has not filed a notice of appeal from the new judgment,³ we dismiss this appeal.

PANEL:  DAUPHINOT, GARDNER, and WALKER, JJ.

Tex.R.App. P. 47.2(b)

DELIVERED:  October 14, 2010

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. See Tex.R.App. P. 21.9(b);  Waller v. State, 931 S.W.2d 640, 643-44 (Tex.App.-Dallas 1996, no pet.)..  FN2. See Tex.R.App. P. 21.9(b);  Waller v. State, 931 S.W.2d 640, 643-44 (Tex.App.-Dallas 1996, no pet.).

FN3. See Tex.R.App. P. 25.2(b), 27.1(b);  Franks v. State, 219 S.W.3d 494, 497 (Tex.App.-Austin 2007, pet. ref'd)..  FN3. See Tex.R.App. P. 25.2(b), 27.1(b);  Franks v. State, 219 S.W.3d 494, 497 (Tex.App.-Austin 2007, pet. ref'd).