JONATHAN DANYELL BROWN, Appellant v. THE STATE OF TEXAS, Appellee

DISMISS; Opinion issued January 25, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01137-CR
No. 05-08-01138-CR
No. 05-08-01139-CR
 
............................
JONATHAN DANYELL BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-67110-T, F06-67111-T, F06-67112-T
.............................................................
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Francis and Murphy
Opinion By Chief Justice Wright
        Jonathan Danyell Brown pleaded guilty to possession with intent to deliver cocaine in an amount of 200 grams or more but less than 400 grams, possession of marijuana in an amount of five pounds or less but more than four ounces, and possession with intent to deliver 3,4-methylenedioxy methamphetamine in an amount of four grams or more but less than 400 grams. On July 11, 2008, the trial court found appellant guilty of the offenses and sentenced appellant to ten years' imprisonment for the cocaine offense, 180 days' confinement in a state jail facility for the marijuana offense, and five years' imprisonment on the 3,4-methylenedioxy methamphetamine offense. The judge also assessed a $500 fine in each case. On August 11, 2008,   See Footnote 1  appellant filed a motion for new trial in all three cases. On August 12, 2008, he filed notices of appeal in all three cases. On September 19, 2008, appellant filed an amended motion for new trial listing all three trial court numbers, which the trial court granted on that same date. Underneath the judge's signature is the notation, “State has no objection,” and a signature. See State v. Moore, 225 S.W.3d 556, 557 (Tex. Crim. App. 2007).   See Footnote 2 
        Thereafter, on September 19, 2008, appellant again pleaded guilty to the charged offenses. In each case, the trial judge deferred adjudicating appellant guilty. The judge placed appellant on ten years' community supervision in the cocaine and 3,4-methylenedioxy methamphetamine cases and five years' community supervision in the marijuana case. The judge also assessed a $1500 fine in each case. Appellant did not file new notices of appeal from the orders deferring adjudication of guilt. Appellant's counsel has filed a brief asserting there are no arguable issues, and first raises the question of whether we have jurisdiction over these appeals. We conclude we lack jurisdiction over the appeals.
        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. See Tex. R. App. P. 21.9(b); Waller v. State, 931 S.W.2d 640, 643-44 (Tex. App.-Dallas 1996, no pet.). In these cases, the trial court's September 19, 2008 order granting appellant's amended motion for new trial restored the cases to their position and the judgments of conviction were no longer in place. Had the appellate records shown the orders granting the amended motion for new trial, without the further action of the trial court, the appeals would have been dismissed for want of jurisdiction. See Waller, 931 S.W.2d at 643-44.
        Nor can the August 12, 2008 notices of appeal be properly considered premature as to the September 19, 2008 orders deferring adjudication of guilt. A premature notice of a appeal is effective and deemed filed on the same day, but after, sentence is imposed or suspended in open court, or the appealable order is signed by the trial court. See Tex. R. App. P. 27.1(b). A notice of appeal is not effective if filed before the trial court makes a finding of guilt or receives a jury verdict. Id.
        The record shows the August 12, 2008 notices of appeal were filed with regards to the trial court's original judgments of conviction. Once those judgments were set aside by the granting of the amended motion for new trial, the cases were returned to a position where there was no finding of guilt. See Waller, 931 S.W.2d at 643-44. The orders deferring adjudication of guilt were not entered until more than one month after the August 12, 2008 notices of appeal were filed. Nothing in the record supports a conclusion that at the time appellant filed the notices of appeal, he was contemplating appeals from future orders deferring adjudication of guilt. Rather, the record shows that once the trial court granted the amended motion for new trial and set aside the prior judgments, the judge began the September 19, 2008 plea hearing from the beginning, including admonishing appellant   See Footnote 3  and having appellant enter new guilty pleas. Therefore, this is not a situation in which the August 12, 2008 notices of appeal were filed between the time appellant pleaded guilty and the cases were disposed of in the trial court.
        We conclude appellant's August 12, 2008 notices of appeal were not effective to challenge the September 19, 2008 orders deferring adjudication of guilt and appellant did not file new notices of appeal challenging the September 19, 2008 orders. Absent timely notices of appeal, we have no jurisdiction over the appeals. See Tex. R. App. P. 25.2(b); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); Boyd v. State, 971 S.W.2d 603, 605-06 (Tex. App.-Dallas 1998, no pet.).
        We dismiss the appeals for want of jurisdiction.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          CHIEF JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081137F.U05
 
Footnote 1 July 10, 2008, the thirtieth day after sentence was imposed, fell on a Saturday. Therefore, appellant's August 11, 2008 motion for new trial was timely. See Tex. R. App. P. 4.1(a), 21.4(a).
Footnote 2 In State v. Moore, the Texas Court of Criminal Appeals held that, “at least so long as the State does not timely object to a late-filed amended motion for new trial, the trial court does not err to grant it.” 225 S.W.3d at 557. This holding is contingent upon the original motion for new trial being timely-filed and the ruling being made within seventy-five days of the date sentence was imposed in open court. See id. at 569-70. Appellant's original motion for new trial was timely and the trial court ruled within seventy-five days of the date the sentences were imposed. See id.
Footnote 3 See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2009).