The State of Texas v. Federico Garcia--Appeal from 214th District Court of Nueces County

NUMBER 13-06-406-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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THE STATE OF TEXAS, Appellant,

v.

FEDERICO GARCIA, Appellee.

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On appeal from the 214th District Court

of Nueces County, Texas.

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MEMORANDUM OPINION

Before Justices Ya ez, Rodriguez, and Garza

Memorandum Opinion Per Curiam

Appellant, the State of Texas, by and through the District Attorney in and for Nueces County, Texas, attempts to appeal the trial court's order granting Federico Garcia's motion for mistrial. The State has also attacked this same order by writ of mandamus in Cause No. 13-06-593-CR.

The State contends that this Court has jurisdiction over the State's appeal under article 44.01(a)(3) of the Texas Code of Criminal Procedure because case law provides that when an order granting a mistrial is "functionally indistinguishable" from, or the "functional equivalent" of an order granting a new trial, the State may appeal pursuant to article 44.01(a)(3) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(3) (Vernon Supp. 2006); State v. Doyle, 140 S.W.3d 890, 892 (Tex. App. Corpus Christi 2004, pet. ref'd).

We conclude that we do not have jurisdiction to reach the merits of the State's appeal because the order appealed from is a pre-verdict order granting a mistrial, rather than a post-verdict order granting a new trial. The Texas Code of Criminal Procedure provides no authority for the State to appeal an order granting a mistrial under these circumstances. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(3); State v. Garza, 774 S.W.2d 724, 726 (Tex. App. Corpus Christi 1989, pet. ref'd). Accordingly, the Court lacks jurisdiction over this appeal.

The appeal is hereby DISMISSED for want of jurisdiction. Any and all pending motions are likewise dismissed.

PER CURIAM

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 26th day of October, 2006.