Opinion issued September 5, 2013




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-12-00639-CR
                            ———————————
                        ERNEST F. FLORES, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


            On Appeal from County Criminal Court at Law No. 10
                           Harris County, Texas
                       Trial Court Case No. 1794642


                          MEMORANDUM OPINION

      Appellant, Ernest F. Flores, was charged with unlawfully making a left turn

while driving a motor vehicle.1 On appeal to the criminal county court at law,

appellant pleaded nolo contendere, then filed a motion for new trial. Trial was set,

1
      See TEX. TRANSP. CODE ANN. § 545.101 (Vernon 2011).
and appellant was found guilty. In thirteen issues, appellant appeals trial court’s

conviction. The State moves to dismiss the appeal for lack of jurisdiction.

      We dismiss for lack of jurisdiction.

                                      Background

      Appellant pleaded not guilty in the municipal court to the offense of

“improper left turn from wrong lane,” a class C misdemeanor. He requested a jury

trial and was found guilty. Appellant appealed to the County Criminal Court at

Law Number 10. On March 22, 2012, appellant pleaded nolo contendere, and the

trial court assessed a $10 fine. The trial court certified that the verdict was plea-

bargained, and that appellant did not have a right to appeal. On April 2, 2012, ten

days after his plea, appellant filed a motion for new trial. Appellant cited the

reason for new trial as “lack of disclosure of exorbitant court costs and fees, related

to the $10.00 fine.” The case was reset for trial, though no formal order granting

the new trial was signed. In a jury trial on June 12, 2012, appellant was found

guilty and was assessed a $200 fine. Appellant filed a notice of appeal ten days

later, and the trial court certified appellant’s right of appeal.

                                      Jurisdiction

      Appellant raises thirteen issues challenging his conviction from the county

court at law. The State asserts that appellant’s second trial was a nullity because

the trial court did not issue a written order granting the motion for new trial. It


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argues that, because the trial court did not issue a written order granting the motion

for new trial within 75 days, appellant’s motion for new trial was overruled as a

matter of law, and the trial court’s plenary power expired before the time of the

second trial.

      Ten days after the nolo contendere judgment was rendered, appellant filed a

motion for a new trial. “The court must rule on a motion for new trial within 75

days after imposing or suspending sentence in open court.” TEX. R. APP. P.

21.8(a). Ruling on a motion for new trial must be accomplished by written order; a

docket entry does not constitute a written order. TEX. R. APP. P. 21.8(b). Simply

proceeding to a jury trial is not a sufficient substitute for a written order granting a

motion for a new trial. State v. Garza, 931 S.W.2d 560, 561–62 (Tex. Crim. App.

1996).

      In Garza, the defendant filed a motion for a new trial after having been

convicted of sexual assault. 931 S.W.2d at 561. A docket entry was made and the

second trial was carried out, but no formal written order was signed. Id. Appellant

was again convicted and received a harsher punishment. Id. On appeal, appellant

argued that his second conviction should be nullified and the first reinstated

because the trial court lost jurisdiction when it failed to sign a written order

granting his motion for new trial within 75 days of rendering the original

judgment. Id. The Court of Criminal Appeals agreed. Id. at 562. It held that, if a


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written order was not issued before the court’s plenary power expired, the motion

was not granted, regardless of whether the new trial was carried out. Id.2

      Here, appellant filed a motion for new trial on April 2, 2012, ten days after

his plea-bargained judgment was handed down. The case was reset for trial, but no

written order was signed granting the motion. Because the trial court did not issue

a written order granting appellant’s motion for a new trial within 75 days of its

judgment, appellant’s motion was overruled as a matter of law. Once a motion for

new trial was overruled by operation of law, the trial court lost jurisdiction to rule

upon it, and the second trial was a nullity. See State ex. Rel. Cobb v. Godfrey, 739

S.W.2d 47, 49 (Tex. Crim. App. 1987). Therefore, appellant’s second conviction

is void and the March 22, 2012 judgment remains in effect.

      The trial court certified with the March 22 judgment that appellant did not

have the right to appeal. Even if this were erroneous, appellant’s notice of appeal

is untimely as it relates to the March 22 judgment. See TEX. R. APP. P. 26.2(a)(2)

(requiring notice of appeal to be filed within 90 days after sentence is suspended

following filing of motion for new trial).
2
      We have recognized the reasoning for the requirement of a written order to grant a
      motion for a new trial in civil cases. “The written, signed order setting the case for
      trial is not a substitute for a written, signed order granting a motion for new trial
      because the order setting the case for trial does not adjudicate the merits of the
      motion for new trial.” Estate of Townes v. Wood, 934 S.W.2d 806, 807 (Tex.
      App.—Houston [1st Dist.] 1996, no writ). The same reasoning applies here. While
      there is a case reset document setting a date for trial, there is no signed order
      granting the motion on its merits.

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      We grant the State’s motion to dismiss for lack of jurisdiction.

                                    Conclusion

      We dismiss the appeal for lack of jurisdiction.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




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