i          i      i                                                                 i      i      i




                                 MEMORANDUM OPINION

                                         No. 04-09-00614-CR

                                           Michael DAVIS,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CR-7136
                            Honorable George H. Godwin, Judge Presiding

PER CURIAM

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 17, 2010

DISMISSED

           On September 23, 2009, appellant was convicted of possession of a controlled substance and

sentenced to thirty-five years confinement. Appellant timely filed a notice of appeal on September

24, 2009, but thereafter, on October 23, 2009, filed a motion for new trial. The motion for new trial

was granted by the trial court as to punishment on December 2, 2009. Given the December 2, 2009

order, it appeared to this court that there was no final judgment from which appellant could appeal.

Accordingly, we ordered appellant to show cause why the appeal should not be dismissed as the
                                                                                       04-09-00614-CR



notice of appeal was prematurely filed. Appellant filed a response in which he agrees the notice of

appeal was prematurely filed, and the appeal should be dismissed.

       When the trial court grants a motion for new trial as to punishment only, the case is restored

to the position it was in after the defendant was found guilty. TEX . R. APP . P. 21.9(c). By virtue of

the December 2, 2009 order, appellant has been returned to the position in which he stood

immediately following the finding of guilt, and trial on punishment will proceed as if the original

punishment hearing had never occurred. See id. Accordingly, we hold there is no final, appealable

judgment, and we order the appeal dismissed. See Workman v. State, 170 Tex. Crim. 621, 622, 343

S.W.2d 446, 447 (1961).



                                                        PER CURIAM

Do Not Publish




                                                  -2-
