TRACY LEE CAVET, Appellant v. THE STATE OF TEXAS, Appellee

Vacate; Reinstate Order and Remand; Opinion Filed November 18, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00626-CR
............................
TRACY LEE CAVET, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Collin County, Texas
Trial Court Cause No. 002-90040-08
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion by Justice Moseley
 
        Tracy Lee Cavet was convicted by a jury of assault involving a family member. Punishment was assessed at 180 days' confinement in jail and a $2000 fine, and was imposed in open court on April 15, 2009. Appellant filed a motion for new trial and a notice of appeal on April 17, 2009. The trial court granted the motion for new trial by written order on June 26, 2009. The State filed a motion to reconsider on June 29, 2009. On July 15, 2009, the trial judge signed an order granting the State's motion to reconsider and denying appellant's motion for new trial.
        In his first issue, appellant challenges the trial court's authority to rescind the June 26, 2009 order granting the motion for new trial after the trial court's plenary jurisdiction expired. The State filed a letter brief conceding the order granting the motion for new trial became final on June 29, 2009 and that the trial court did not have authority to rescind the order after that date. The State asserts that because there is no judgment in place, we should dismiss the appeal and remand it to the trial court for new trial. After reviewing the record, we conclude the July 15, 2009 order denying appellant's motion for new trial is void.
        The trial court has authority to rule on a timely-filed motion for new trial up to the seventy- fifth day after sentence is imposed or suspended in open court. See Tex. R. App. P. 21.8(a); State v. Moore, 225 S.W.3d 556, 569 (Tex. Crim. App. 2007); Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998). During that seventy-five day period, the trial court may freely rescind an order granting or denying a motion for new trial. See Awadelkariem, 974 S.W.2d at 728. However, once the seventy-five day period has passed, the trial court loses its authority to rule on the motion for new trial and an order granting or denying a motion for new trial becomes final.  See id.
        In this case, the trial court imposed sentence in open court on April 15, 2009. The trial court signed the order granting appellant's motion for new trial on June 26, 2009, seventy-two days after sentence was imposed. The order became final on June 29, 2009, the seventy-fifth day after sentence was imposed. See id. After June 29, 2009, the trial court lost its authority to rescind its order granting appellant's motion for new trial. See id. Therefore, the trial court's July 15, 2009 order granting the State's motion to reconsider and denying appellant's motion for new trial is void. See id. We sustain appellant's first issue.
         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 light of our disposition of appellant's first issue, we have no jurisdiction to address appellant's second and third issues. See Waller, 931 S.W.2d at 643-44. Accordingly, we dismiss issues two and three.
        We vacate the July 15, 2009 “Order Denying Motion for New Trial” and reinstate the June 26, 2009 order granting appellant's motion for new trial. We remand the case to the trial court for further proceedings.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090626F.U05