                                                                                                    ACCEPTED
                                                                                                03-15-00235-CR
                                                                                                        6659349
                                                                                     THIRD COURT OF APPEALS
                                                                                                AUSTIN, TEXAS
                                                                                          8/26/2015 12:06:49 PM
                                                                                              JEFFREY D. KYLE
                                                                                                         CLERK
                             CAUSE NO. 03-14-00235-CR

                                                             FILED IN
                                                      3rd COURT OF APPEALS
            _________________________________________________
                                                           AUSTIN, TEXAS
                                                      8/26/2015 12:06:49 PM
                       IN THE COURT OF APPEALS            JEFFREY D. KYLE
                  FOR THE THIRD DISTRICT OF TEXAS              Clerk
                            AUSTIN DIVISION
            _________________________________________________


JONATHAN RAY GRAY                          §
                                           §
v.                                         §
                                           §
STATE OF TEXAS                             §

             _______________________________________________

     APPELLANT’S MOTION TO DISMISS APPEAL FOR WANT OF
         JURISDICTION AND REMAND FOR A NEW TRIAL
         _______________________________________________




                                           Justin Bradford Smith
                                           Texas Bar No. 24072348
                                           Harrell, Stoebner, & Russell, P.C.
                                           2106 Bird Creek Drive
                                           Temple, Texas 76502
                                           Phone: (254) 771-1855
                                           FAX: (254) 771-2082
                                           Email: justin@templelawoffice.com

                                           ATTORNEY FOR APPELLANT


Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial   Page 1
Gray v. State; Cause No. 03-15-00235-CR
TO THE HONORABLE COURT OF APPEALS:

       COMES NOW, Appellant, JONATHAN RAY GRAY, who files this

Motion to Dismiss Appeal for Want of Jurisdiction and Remand for a New Trial,

and shows unto the Court as follows:

                                             I.

                                          FACTS

          1. Appellant pled guilty to burglary of a habitation, (VI R.R. at 9), and

after a hearing the trial court found Appellant guilty and imposed sentence on

March 30, 2015. (VII R.R. at 4-15) (I C.R. at 33-42; 56).

          2. Appellant then timely filed a motion for new trial on April 21, 2015.

(I C.R. at 61-62); Tex. R. App. P. 21.4(a).

          3. Within the time provided by our rules, the trial court granted the

motion for new trial by written order, without limiting the order to punishment. (I

C.R. at 73; 75); Tex. R. App. P. 21.8(a)-(b).

          4. The State did not appeal this decision. Texas Code of Criminal

Procedure art. 44.01(a)(3); Tex. R. App. P. 26.2(b).

                                             II.

                        ARGUMENT AND AUTHORITIES

          5. “Granting a motion for new trial restores the case to its position before

the former trial”. Tex. R. App. P. 21.9.

Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial   Page 2
Gray v. State; Cause No. 03-15-00235-CR
          6. “Because there is no sentence to be appealed, [an appellate court has]

no jurisdiction to consider appellant’s appeal”. Waller v. State, 931 S.W.2d 640,

643-644 (Tex. App.—Dallas 1996, no pet.).

          7. Accordingly, this Court must dismiss Appellant’s appeal and remand

the case to the trial court for a new trial. Id. at 644.

          8. Despite the fact that Appellant’s plea of guilty resulted in “a ‘unitary

trial’ to determine the remaining issue of punishment”, Carroll v. State, 975

S.W.2d 630, 631 (Tex.Crim.App.1998), because the trial court granted a new trial

without limitation to punishment only, this Court must remand for an entirely new

trial. Cf. State v. Evans, 843 S.W.2d 576 (Tex. Crim. App. 1992) (order granting

“Motion to Withdraw Plea of Nolo Contendere”1 was effectively an order granting

new trial as a whole, which it was within the trial court’s authority to do) with State

v. Davis, 349 S.W.3d 535, 538 (Tex. Crim. App. 2011) (order reducing defendant’s

sentence in response to a “Motion for Reconsideration or Reduction of Sentence”

granted a new trial as to punishment only). Here, Appellant’s motion was in form

and substance a motion for an entirely new trial, unlike the limited motion in

Davis, and the trial court granted it without limitation, as in Evans. (I C.R. at 61-

62; 73; 75).

1
 A plea of nolo contendere results in a “unitary proceeding” as a plea of guilty does here.
Arismendez v. State, 595 S.W.2d 535 (Tex. Crim. App. 1980) (“a guilty or nolo contendere plea
proceeding should not be bifurcated”).

Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial      Page 3
Gray v. State; Cause No. 03-15-00235-CR
          9. Therefore, this Court must dismiss this appeal for want of jurisdiction

and remand to the trial court for a new trial.

                                            III.

                                        PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court

grant this motion, dismiss his appeal for want of jurisdiction, and remand the case

to the trial court for a new trial.

                                                   Respectfully submitted:


                                                   /s/ Justin Bradford Smith
                                                   Justin Bradford Smith
                                                   Texas Bar No. 24072348

                                                   Harrell, Stoebner, & Russell, P.C.
                                                   2106 Bird Creek Drive
                                                   Temple, Texas 76502
                                                   Phone: (254) 771-1855
                                                   FAX: (254) 771-2082
                                                   Email: justin@templelawoffice.com

                                                   ATTORNEY FOR APPELLANT




Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial   Page 4
Gray v. State; Cause No. 03-15-00235-CR
                            CERTIFICATE OF SERVICE

       I hereby certify that, on August 26, 2015, a true and correct copy of the

Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for

New Trial was provided to counsel below via eservice:

       Bob Odom
       Bell County District Attorney’s Office
       P.O. Box 540
       Belton, Texas 76513
       Email: DistrictAttorney@co.bell.tx.us
              Attorney for the State


                                                  /s/ Justin Bradford Smith
                                                  Justin Bradford Smith




Appellant’s Motion to Dismiss Appeal for Want of Jurisdiction and Remand for Trial   Page 5
Gray v. State; Cause No. 03-15-00235-CR
