Michael Keith McCugh v. The State of Texas--Appeal from 115th District Court of Upshur County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00273-CR

______________________________

MICHAEL KEITH MCCUGH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th Judicial District Court

Upshur County, Texas

Trial Court No. 12,075

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Appellant, Michael Keith McCugh, has filed with this Court a motion to dismiss his appeal. McCugh's nonadjudicated community supervision was revoked November 9, 2005. The trial court adjudicated McCugh guilty and sentenced him to fifteen years' imprisonment. On December 2, 2005, McCugh filed a motion for new trial. On December 5, 2005, McCugh filed a notice of appeal. McCugh attached to his motion to dismiss a copy of the trial court's January 5, 2006, order granting a new trial.

The filing of a notice of appeal does not divest the trial court of its jurisdiction to act on an otherwise timely-filed motion for new trial. Beeler v. State, 122 S.W.3d 814, 816 (Tex. App. Amarillo 2003, no pet.); State v. Kelly, 20 S.W.3d 147, 150 (Tex. App. Texarkana 2000, no pet.). The trial court's jurisdiction is not suspended until the filing of the appellate record with the court of appeals. Tex. R. App. P. 25.2(g); Beeler, 122 S.W.3d at 816; Kelly, 20 S.W.3d at 150. Thus, the filing of McCugh's notice of appeal invoked our appellate jurisdiction, but the trial court still had jurisdiction to consider and rule on the motion for new trial because the appellate record had not been filed. See Tex. R. App. P. 25.2(g); Beeler; 122 S.W.3d at 816; Kelly, 20 S.W.3d at 150. The information before this Court indicates McCugh timely filed a motion for new trial and the trial court timely ruled on it. See Tex R. App. P. 21.4, 21.8. The order granting a new trial resulted in the judgment of conviction being set aside. Thus, based on the information before this Court, there is no judgment or appealable order on which to base appellate jurisdiction. See Tex. R. App. P. 25.2(c)(2).

For the reasons stated, we dismiss McCugh's appeal for want of jurisdiction.

Donald R. Ross

Justice

Date Submitted: January 18, 2006

Date Decided: January 19, 2006

Do Not Publish