SHERRY XIAOHUA XING v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion by Justice Lang

Sherry Xiaohua Xing was convicted of injury to a child fourteen years of age or younger.   Punishment following the revocation of appellant's community supervision was assessed at ten years' imprisonment.   Appellant filed a notice of appeal after she was sentenced.   The Court now has before it appellant's motion to dismiss the appeal because the trial court granted her motion for new trial.   Attached to the motion is a copy of the trial court's order granting the motion for new trial and the trial court's judgment ruling appellant incompetent to stand trial and ordering in-patient mental health services.

An order granting a motion for new trial restores a case to its position before the former trial, and there is no longer a judgment in place, leaving us without jurisdiction over the appeal.   See Tex.R.App. P. 21.9(b);  Waller v. State, 931 S.W.2d 640, 643-44 (Tex.App.-Dallas 1996, no pet.).   Accordingly, we grant the October 18, 2010 motion to dismiss the appeal.

We dismiss this appeal for want of jurisdiction.

DOUGLAS S. LANG JUSTICE