Opinion issued February 7, 2017




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-16-00968-CR
                            ———————————
                  MARK AUBREY ROGERS, JR., Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                       On Appeal from the County Court
                           Colorado County, Texas
                        Trial Court Case No. 15-24295


                          MEMORANDUM OPINION

      Appellant Mark Aubrey Rogers, Jr. attempts to appeal from a judgment of
conviction entered on May 12, 2016. On May 25, 2016, the trial court granted the
State’s motion for a new punishment hearing.*


*
      Although no clerk’s record has been filed in this appeal, the clerk’s record in
      appellant’s related appeal, cause number 01-16-00583-CR, styled Ex parte
      Mark Aubrey Rogers, Jr., contains the March 25, 2016 trial court order (and
       Generally, an appellate court only has jurisdiction to review a final judgment

of conviction. See Workman v. State, 343 S.W.2d 446, 447 (Tex. Crim. App. 1961);

Means v. State, 825 S.W.2d 260, 260 (Tex. App.—Houston [1st Dist.] 1992, no pet.).

When a new punishment hearing has been granted, there is no final conviction to

appeal. See Norris v. State, No. 02–10–014–CR, 2010 WL 1854138, at *1 (Tex.

App.—Fort Worth May 6, 2010, no pet.) (dismissing appeal for lack of jurisdiction

because no final, appealable judgment existed after trial court granted motion for

new punishment hearing); TEX. R. APP. P. 21.9(b) (“Granting a new trial restores the

case to its position before the former trial . . . .”).

       Because there is no longer an appealable judgment of conviction, we have no

jurisdiction over this appeal and can take no action other than to dismiss the appeal.

See Collier v. State, No. 14–13–00096–CR, 2013 WL 1197896, at *1 (Tex. App.—

Houston [14th Dist.] Mar. 26, 2013, no pet.) (dismissing appeal for lack of

jurisdiction when no final judgment existed after motion for new trial was granted).

Despite receiving notice of our intent to dismiss this appeal for lack of jurisdiction,

appellant did not file a response.

       We dismiss the appeal for want of jurisdiction. We dismiss any pending

motions as moot.


       the nunc pro tunc order correcting the date to May 25, 2016) granting the
       State’s motion for a new punishment hearing.

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                                 PER CURIAM

Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).




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