Belvis, Rosario v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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ROSARIO BELVIS, ) No. 08-02-00121-CR

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Appellant, ) Appeal from

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v. ) 168th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20010D03418)

O P I N I O N

Pending before the Court is Appellant=s motion to dismiss this appeal as moot. We grant the motion and dismiss the appeal.

Rule 42.2(a) of the Texas Rules of Appellate Procedure provides the sole basis for the voluntary dismissal of criminal cases, stating that:

(a) At any time before the appellate court=s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.

Tex.R.App.P. 42.2(a).

Appellant has not signed the motion to dismiss and we do not understand him to seek dismissal pursuant to this rule. Instead, he urges that the appeal has become moot because a new trial has been granted subsequent to the filing of the notice of appeal. Attached to the motion to dismiss is an order of the trial court granting a new trial as to punishment only. The court states in the motion that the parties agreed that an error occurred in the punishment phase of trial. A trial court, however, does not have authority to grant a new trial as to punishment only even with the agreement of the parties. Pursuant to Rule 21.1, a new trial is defined as the rehearing of a criminal action after the trial court has, on the defendant=s motion, set aside a finding or verdict of guilt. Tex.R.App.P. 21.1. Therefore, the trial court=s authority to grant a new trial is limited to setting aside the guilty verdict and it may not grant a new trial as to the punishment phase only. If the trial court had granted a new trial as to punishment only, it would be a void order and the appeal would not be moot.

Appellant, however, alleges in the body of his motion that after the trial court granted a new trial, he entered a plea of guilty. It appears, then, that the trial court actually granted a new trial as to the entire case rather than the punishment phase only. With this understanding of the procedural facts, we conclude that the appeal is moot. Under article V, section 8 of the Texas Constitution, Ajudicial power does not embrace the giving of advisory opinions.@ General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990). It is axiomatic that appellate courts do not decide cases in which no case or controversy exists between the parties. Camerena v. Texas Employment Comm=n., 754 S.W.2d 149, 151 (Tex. 1988). Accordingly, we grant Appellant=s motion and dismiss the appeal.

September 19, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

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