GUADALUPE RODEA, JR. v. THE STATE OF TEXAS--Appeal from County Court at Law No 6 of Hidalgo County

NUMBER 13-04-587-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_______________________________________________________

GUADALUPE RODEA, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

_________________________________________________________

On appeal from the County Court at Law No. 5

of Hidalgo County, Texas

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MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion Per Curiam

A jury convicted appellant, Guadalupe Rodea, Jr., of the misdemeanor offense of official oppression. By judgment entered on September 22, 2004, the trial court sentenced appellant to one year of confinement and a $1,500 fine. // The trial court suspended sentence and placed appellant on a two-year term of community supervision. We dismiss the appeal for lack of jurisdiction.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite the facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

On September 23, 2004, appellant filed a motion for new trial, a notice of appeal, and a motion to appoint an appellate attorney. On October 12, 2004, the trial court entered an order on appellant s motion for new trial. This order provided that

On this the 12th day of Oct, 2004, came to be heard defendant s Motion for New Trial, and it appears to the Court that this motion should be:

GRANTED/DENIED.

IT IS THEREFORE ORDERED that a new trial be conducted in the above-entitled and numbered cause.

This order was signed by the presiding judge; however neither GRANTED nor DENIED was circled or struck through. That same day, the trial court also entered an order granting appellant s motion for a court-appointed attorney.

On November 30, 2004, the Clerk of this Court informed appellant s attorney and the parties that the record showed that appellant s motion for new trial had been granted and notifying the parties that the appeal was subject to dismissal for want of jurisdiction. According to subsequent documentation furnished by the parties, on December 21, 2004, the State filed a motion for clarification with the trial court on grounds that neither granted nor denied were marked on the order granting a new trial. On December 22, 2004, the trial court issued an order on the motion to clarify stating that the motion for new trial was denied.

A motion for new trial must be filed within thirty days after the date sentence is imposed in open court. See Tex. R. App. P. 21.4. The rules of appellate procedure give a trial court seventy-five days after sentence is imposed to rule upon a motion for new trial. See id. 21.8(a); Awadelkariem v. State, 974 S.W.2d 721, 727 (Tex. Crim. App. 1998). Moreover, a trial court may freely rescind its order granting or denying a motion for new trial as long as that action is taken within the seventy-five day period provided by the rules. See Awadelkariem, 974 S.W.2d at 727. However, once that seventy-five day period passes, the order granting or denying a new trial becomes final and the trial court may not rescind it. See id.

In the instant case, the seventy-five days passed on December 7, 2004. Nothing in the record reflects the trial court rescinded the order granting the motion for new trial before the seventy-fifth day after sentence was imposed. Accordingly, the trial court s order denying appellant s motion for new trial was not entered in within the trial court s plenary jurisdiction. Id.

The State has not presented the Court with information showing the trial court's order granting the motion for new trial was timely rescinded or that it was mistakenly signed. See, e.g., Smith v. State, 15 S.W.3d 294, 299 (Tex. App.-Dallas 2000, no pet.). Although the trial court s order granting appellant a court-appointed attorney arguably supports the notion that the court intended to deny the motion for new trial, the fact that the trial court failed to enter a certification of the right to appeal would argue otherwise. Thus, we must conclude the trial court granted appellant's motion for new trial and the order is now final. See Awadelkariem, 974 S.W.2d at 727.

When the trial court grants a motion for new trial, it restores the case to its position before the former trial. Tex. R. App. P. 21.9. Because there is no sentence to be appealed, we have no jurisdiction to consider appellant's appeal. See Waller v. State, 931 S.W.2d 640, 643-44 (Tex. App. Dallas 1996, no pet.). Accordingly, the appeal is DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 14th day of April, 2005.