                                                                    PD-1406-14
                                                  COURT OF CRIMINAL APPEALS
                                                                   AUSTIN, TEXAS
March 11, 2015                                  Transmitted 3/11/2015 3:00:23 PM
                                        ORAL ARGUMENT    REQUESTED
                                                  Accepted  3/11/2015 3:03:49 PM
                                                                    ABEL ACOSTA
                         PD-1406-14                                         CLERK


                           IN THE
                 COURT OF CRIMINAL APPEALS
                         OF TEXAS
                   ______________________


                  JOSE RAMIRO DELAROSA,
                                Appellant
                            VS.
                    THE STATE OF TEXAS
                                Appellee

                   ______________________

  REVIEW OF THE DECISION OF THE COURT OF APPEALS, FIFTH
DISTRICT IN OPINION NO. 05-14-01020-CR, APPEALED IN CAUSE NO.
     F14-52888-T FROM THE 283RD JUDICIAL DISTRICT COURT
                      OF DALLAS COUNTY
                    ______________________

   APPELLANT’S BRIEF REGARDING JURISDICTION OF THE TRIAL
            COURT TO ENTER A NEW JUDGMENT IN
                   CAUSE NO. F14-52888-CR
     AS ORDERED BY THE COURT OF CRIMINAL APPEALS ON
                      FEBRUARY 25, 2015
                    _____________________



                                LESLIE MCFARLANE
                                State Bar No. 13603500
                                7522 Campbell Rd. Ste.113-216
                                Dallas, TX 75248-1726
                                lwmcfarlane@gmail.com


                                ATTORNEY FOR APPELLANT
                     IDENTITY OF ALL PARTIES



As this is an appeal from a criminal conviction, the only parties are:

Respondent/Appellant: Jose Ramiro Delarosa

Attorney of record on appeal: Leslie McFarlane, 7522 Campbell Rd, Suite

     113-216, Dallas, Texas, 75248-1726

Petitioner/Appellee: Dallas County District Attorney, Susan Hawk, 133 N.

     Riverside Blvd. LB#19, Dallas, Texas 75207

     Michael R. Casillas, Assistant District Attorney, 133 N. Riverside

     Blvd. LB#19, Dallas, Texas 75207




                                   i
                        TABLE OF CONTENTS

IDENTITY OF PARTIES……………………………………………..                                 i

INDEX OF AUTHORITIES ………………………………………….                                 iii

STATEMENT REGARDING ORAL ARGUMENT ………………..                             2

STATEMENT OF THE CASE ………………………………………                                  2

STATEMENT OF PROCEDURAL HISTORY …………………….                              3

GROUNDS FOR REVIEW ……………………..…………………..                                 4

   1. The trial court had jurisdiction to take this case to trial on
   December 17, 2014 because the granting of the new trial on
   August 6, 2014 returned the case to its position before the
   jury trial. The failure of the State to appeal the ruling on the
   motion for new trial deprived the Court of Appeals of
   jurisdiction in this matter.

   2. When the trial court granted the motion for new trial in this
   case, the previously filed notice of appeal became a
   premature motion that cannot deprive the trial court of
   jurisdiction or grant jurisdiction to the Court of Appeals.

   3. The failure of the State to file a notice of appeal within 20
   days of the granting of the motion for new trial deprived the
   Court of Appeals of jurisdiction. The trial court retained
   jurisdiction in the matter as soon as the motion for new trial
   was granted.

ARGUMENT ………………………………………………………….                                       5

PRAYER FOR RELIEF ………………………………………………                                   12

CERTIFICATE OF SERVICE ……………………………………….                                13

CERTIFICATE OF COMPLIANCE ………………………………….                               13



                                    ii
                       INDEX OF AUTHORITIES



CASES:

Hall v. State
      698 S.W.2d 150 (Tex. Crim. App. 1985) …………………….            7

McIntire v. State
      698 S.W.2d 652 (Tex. Crim. App. 1985) ……………………             7

Olivo v. State
      918 S.W.2d 519 (Tex. Crim. App. 1996) ……………………..           7,11

State v. Bates
      889 S.W.2d 306 (Tex. Crim. App. 1994) ……………………..           8,9

State v. Gonzales
      855 S.W.2d 692 (Tex. Crim. App. 1993) ……………………..           7

State v. Gutierrez
      143 S.W.3d 829 (Tex. App. - Corpus Christi, 2004) ………...   7

Waller v. State
     931 S.W.2d 640 (Tex. App. – Dallas, 1996) …………………….. 8,9




CODES:

TEXAS CODE OF CRIMINAL PROCEDURE

     Article 44.01 (a) (3) ……………………………………………                     8




                                   iii
RULES:

TEXAS RULES OF APPELLATE PROCEDURE

    Rule 21.1 ……………………………………………………….        8
    Rule 21.9 (b) ………………………………………………… 9,10,11
    Rule 26.2 (a) …………………………………………………       6,8
    Rule 26.2 (b) …………………………………………………       7
    Rule 27.1 (b) …………………………………………………       9




                          iv
                                 PD-1406-14



                                      IN THE

                     COURT OF CRIMINAL APPEALS

                                     OF TEXAS

                         ______________________

                        JOSE RAMIRO DELAROSA,
                                       Appellant
                                 VS.

                          THE STATE OF TEXAS,
                                        Appellee
                         ______________________


TO THE HONORABLE COURT OF CRIMINAL APPEALS:



            The appellant, Jose Ramiro Delarosa, respectfully submits this

brief in the above styled and numbered cause by his appointed counsel of

record, Leslie McFarlane. This brief was ordered by the Court of Criminal

Appeals on February 25, 2015 to determine if the trial court had jurisdiction

to act after the Court of Appeals dismissed the appeal and the State filed a

petition for discretionary review.




                                        1
                STATEMENT REGARDING ORAL ARGUMENT



               Should the court deem oral argument necessary, the appellant

requests oral argument in this matter to reinforce the fact that once the trial

court granted the motion for new trial in this matter the court retained

jurisdiction to take the case to trial on December 17, 2014, after the State

filed a petition for discretionary review. The failure of the State to appeal

the granting of the motion for new trial deprived the Court of Appeals of

jurisdiction in this matter and allowed the trial court to retain jurisdiction in

this matter.



                          STATEMENT OF THE CASE



               The appellant was indicted on March 31, 2014 for the offense of

unauthorized use of a motor vehicle. The trial began on July 8, 2014 with a

plea of not guilty before the jury. On July 9, 2014 the appellant was found

guilty by the jury and sentenced to 18 months confinement and a $1000

fine.




                                        2
               STATEMENT OF PROCEDURAL HISTORY



           On July 8, 2014 the appellant entered a not guilty plea before

the jury to the charge of unauthorized use of a motor vehicle. The jury

found him guilty on July 9, 2014. On July 9, 2014 the trial court entered the

Trial Court’s Certification of the Defendant’s Right to Appeal. On August 1,

2014 the appellant filed a pro se notice of appeal. On August 5, 2014 the

undersigned counsel was appointed to represent the appellant on appeal.

A Motion for New Trial was filed and granted on August 6, 2014. The

appellant filed a Motion to Dismiss the Appeal in the Court of Appeals on

September 22, 2014. On that same date the Assistant District Attorney filed

a Motion to Abate the Appeal. On September 24, 2014 the appellant filed a

Response to the Motion to Abate. On October 2, 2014 the Court of Appeals

granted the Motion to Dismiss the appeal for lack of jurisdiction. The State

filed a Petition for Discretionary Review on October 17, 2014. The trial

court heard the case on December 17, 2014. The Court of Criminal

Appeals granted the petition for discretionary review on January 28, 2015

and ordered briefs prepared in the matter. The State filed its brief on

February 17, 2015. The appellant’s brief is due on March 19, 2015. On

February 25, 2015 the Court of Criminal Appeals ordered additional briefs



                                     3
filed on the question of the jurisdiction of the trial court to act after the State

filed a petition for discretionary review. This brief is filed in response to that

order and is due on March 12, 2015.



                          GROUNDS FOR REVIEW



      1. The trial court had jurisdiction to try this case on

      December 17, 2014 because the granting of the new trial on

      August 6, 2014 returned the case to its position before the

      jury trial. The failure of the State to appeal the ruling on the

      motion for new trial deprived the Court of Appeals jurisdiction

      in this matter.



      2. When the trial court granted the motion for new trial in this

      case, the previously filed notice of appeal became a

      premature motion that cannot deprive the trial court of

      jurisdiction or grant jurisdiction to the Court of Appeals.



      3. The failure of the State to file a notice of appeal within 20

      days of the granting of the motion for new trial deprived the



                                        4
      Court of Appeals of jurisdiction. The trial court retained

      jurisdiction in the matter as soon as the motion for new trial

      was granted.



    APPELLANT’S ARGUMENT REGARDING THE TRIAL COURT’S

      JURISDICTION AFTER THE STATE FILED A PETITION FOR

                         DISCRETIONARY REVIEW.



                Analysis for Grounds One, Two and Three



            The question before the Court of Criminal Appeals concerns the

jurisdiction of a trial court to exercise jurisdiction in a criminal case after a

motion for new trial is granted without an appeal by the State on the issue

of granting a new trial. When the Court of Appeals dismissed the appeal for

lack of jurisdiction, the State filed a petition for discretionary review, which

was subsequently granted by the Court of Criminal Appeals. Specifically,

this court now wants to know if the trial court had jurisdiction to act after the

State filed a petition for discretionary review. It is the position of the

appellant that both the statutory law and case law provided the trial court




                                       5
with the jurisdiction to act once the motion for new trial was granted and the

State did not file an appeal on that ruling.

                A brief summary of the relevant dates regarding this case is

helpful in understanding the application of the appellate rules and case law:

         July 8 - 9, 2014            Jury trial on a not guilty plea
         July 9, 2014                Sentence imposed
         July 24, 2014               Notice of Appeal mailed to trial court
         August 1, 2014              Notice of Appeal received in court
         August 5, 2014              Counsel appointed on appeal
         August 6, 2014              Motion for New Trial filed and granted
         September 22, 2014          Motion to Dismiss Appeal filed in Court of
                                     Appeals
         October 2, 2014             Motion to Dismiss appeal granted
         October 16, 2014            State files Petition for Discretionary Review
         December 17, 2014           Re-trial held in original case
         January 28, 2015            State’s Petition for Discretionary Review
                                     granted
         February 6, 2015            Appellant’s Motion to Dismiss the State’s
                                     Petition for Discretionary Review for Lack of a
                                     Justiciable Issue
         February 25, 2015           Order to submit brief on jurisdictional issue

                Jurisdiction is invoked in the Court of Appeals in a criminal case

when the defendant files a notice of appeal within 30 days after the

sentence is imposed. Tex. R. App. P. 26.2 (a) 1. The State must file a notice

of appeal within 20 days of the court entering of an appealable order, ruling

1
    26.2 Criminal Cases.
              (a) By the Defendant. --The notice of appeal must be filed:
                     (1) within 30 days after the day sentence is imposed or suspended
              in open court, or after the day the trial court enters an appealable order; or
                     (2) within 90 days after the sentence is imposed or suspended in
              open court if the defendant timely files a motion for new trial.



                                              6
or sentence to invoke jurisdiction in the Court of Appeals. Tex. R. App. P.

26.2 (b) 2 . “The Rules of Appellate Procedure do not establish courts of

appeals’ jurisdiction; they provide procedures which must be followed by

litigants to invoke the jurisdiction of the courts of appeals so a particular

appeal may be heard.” Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim.

App. 1996).

             It is undisputed that the appellant filed a notice of appeal in this

case on August 1, 2014. With the timely filing of the notice of appeal the

appellant invoked the jurisdiction of the Court of Appeals. However, the trial

court retains the jurisdiction to rule on a timely filed motion for new trial.

Hall v. State, 698 S.W.2d 150 (Tex. Crim. App. 1985), State v. Gutierrez,

143 S.W.3d 829 (Tex. App. - Corpus Christi, 2004). The right to file and

have heard a motion for new trial is absolute provided it is asserted within

the statutory timelines. McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim.

App. 1985). It is undisputed that the motion for new trial was timely filed in

this case on August 6, 2014. The court granted the motion on that same

date. Clearly the trial court was had jurisdiction to grant the motion for new

trial. State v. Gonzales, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).


2
 26.2 (b) By the State. --The notice of appeal must be filed within 20 days after the
day the trial court enters the order, ruling, or sentence to be appealed.



                                           7
                Once the trial court granted the motion for new trial on August

6, 2014 the verdict was set aside the case was returned to the position

before the trial. Tex. R. App. P. 21.13. State v. Bates, 889 S.W.2d 306, 311

(Tex. Crim. App. 1994); Waller v. State, 931 S.W.2d 640, 643-644 (Tex.

App. Dallas, 1996).

                When the motion for new trial was granted, the State had the

right to appeal that ruling within 20 days of granting the motion. Tex. R.

App. P. 26.2 (b) 4 and Tex. Code Crim. Proc. art 44.01 (a) (3) 5 . It is

undisputed that no appeal was filed by the State in this case. Had a timely

appeal been filed by the State, the Court of Appeals would have had

jurisdiction in the matter regarding the granting of the motion for new trial.

However, absent an appeal by the State, the Court of Appeals dismissed

the appeal as there was no conviction pending so there could be no

appellate jurisdiction.


3
    21.1 Definition.
               (a) New trial means the rehearing of a criminal action after the trial court
         has, on the defendant's motion, set aside a finding or verdict of guilt.

4
  26 (b) By the State. --The notice of appeal must be filed within 20 days after the day
the trial court enters the order, ruling, or sentence to be appealed.
5
 Tex. Code of Crim. Proc. art. 44.01
       (a) The state is entitled to appeal an order of a court in a criminal case if the
order:
             (3) grants a new trial;



                                              8
                Once the time expired for the State to file an appeal in this

case, the trial court had jurisdiction in the matter as the case was returned

to the position as it was at the time of indictment. Tex. R. App. P. 21.9 (b) 6.

Bates, supra at 311; Waller, supra at 643-644. The notice of appeal that

was filed by the appellant on August 1, 2014 became a prematurely filed

document. Tex. R. App. P. 27.1 (b) 7. The notice of appeal was not effective

before a finding of guilt or before the court received a jury verdict. Tex. R.

App. P. 27.1 (b) 8 While jurisdiction in the Court of Appeals was invoked

when the notice of appeal was filed, that jurisdiction was lost when the

motion for new trial was granted. Once the trial court granted the motion for

new trial, the Court of Appeals lost jurisdiction and had no alternative but to

dismiss the appeal. Bates, supra at 311. While the Court of Appeals lost
6
    21.9 Granting a New Trial.
                  (b) Granting a new trial restores the case to its position before the former
         trial, including, at any party's option, arraignment or pretrial proceedings initiated
         by that party.
7
    27.1 Prematurely Filed Notice of Appeal.
                 (b) Criminal Cases. --In a criminal case, a prematurely filed notice of
         appeal is effective and deemed filed on the same day, but after, sentence is
         imposed or suspended in open court, or the appealable order is signed by the
         trial court. But a notice of appeal is not effective if filed before the trial court
         makes a finding of guilt or receives a jury verdict.
8
    27.1 Prematurely Filed Notice of Appeal.
                 (b) Criminal Cases. --In a criminal case, a prematurely filed notice of
         appeal is effective and deemed filed on the same day, but after, sentence is
         imposed or suspended in open court, or the appealable order is signed by the
         trial court. But a notice of appeal is not effective if filed before the trial court
         makes a finding of guilt or receives a jury verdict.



                                                 9
jurisdiction on August 6, 2014, the trial court retained jurisdiction pursuant

to Tex. R. App. P. 21.9 (b) 9 . Under that authority the trial court had

jurisdiction to take the case to trial on December 17, 2014.

                Since the only notice of appeal of record in this case is the

prematurely filed notice of appeal, the Court of Appeals had no choice but

to grant the motion to dismiss this appeal. Since there was no appellate

jurisdiction in this matter the filing of a petition for discretionary review did

not create appellate jurisdiction nor could it deny the trial court the

jurisdiction it retained under Tex. R. App. P. 21.9 (b) 10. Had the State timely

filed a notice of appeal, the Court of Appeals would have had jurisdiction in

the case and the filing of a petition for discretionary review would have

been appropriate had the State received a disappointing ruling. To allow

the State to take an issue to the Court of Criminal Appeals without first

properly invoking the procedural requirements necessary to invoke

appellate jurisdiction is allowing the State to create jurisdiction out of thin


9
    21.9 Granting a New Trial.
                  (b) Granting a new trial restores the case to its position before the former
         trial, including, at any party's option, arraignment or pretrial proceedings initiated
         by that party.
10
     21.9 Granting a New Trial.
                  (b) Granting a new trial restores the case to its position before the former
         trial, including, at any party's option, arraignment or pretrial proceedings initiated
         by that party.



                                                10
air. Olivo, supra at 523. If the trial court retains jurisdiction and the Court of

Appeals does not have jurisdiction, why should the filing of a petition for

discretionary review suddenly deprive the trial court of jurisdiction? It is

undisputed that the State did not file a notice of appeal in this case. Without

first establishing appellate jurisdiction pursuant to the Texas Code of

Criminal Procedure or the Texas Rules of Appellate Procedure, the State

cannot now create appellate jurisdiction when it is clear the trial court

retained jurisdiction once the motion for new trial was granted.

                Once the trial court granted the motion for new trial and the

State chose not to appeal that decision, the trial court retained jurisdiction

over this criminal matter and properly took the case to trial on December

17, 2014. Pursuant to the appellate rules and case law herein cited,

specifically Tex. R. App. P. 21.9 (b) 11, the trial court retained jurisdiction in

this matter.




11
     21.9 Granting a New Trial.
                  (b) Granting a new trial restores the case to its position before the former
         trial, including, at any party's option, arraignment or pretrial proceedings initiated
         by that party.



                                                11
                           PRAYER FOR RELIEF



            WHEREFORE, PREMISES CONSIDERED, the appellant prays

that this Court find the trial court had jurisdiction in this matter in the

December 17, 2014 proceeding and that this Court deny relief the State’s

Petition for Discretionary Review as the State failed to properly file a notice

of appeal when the motion for new trial was granted. The Respondent

further prays that the Court hold the Court of Appeals did not have

jurisdiction in this matter and the appeal was properly dismissed.



                              Respectfully submitted,


                              /s/ Leslie McFarlane
                              State Bar No. 13603500
                              7522 Campbell Rd., Ste 113-216
                              Dallas, TX 75248-1726
                              (972) 934-1721
                              lwmcfarlane@gmail.com

                        ATTORNEY FOR RESPONDENT/APPELLANT




                                      12
                      CERTIFICATE OF SERVICE

           The undersigned attorney hereby certifies that a true and

correct copy of the foregoing brief was electronically served on Michael

Casillis of the Dallas County District Attorney’s Office at the time of the

efiling of this brief and a paper copy was mailed to the Dallas County

District Attorney, 133 N. Riverfront Blvd, LB#19, Dallas, TX, 75207 by

delivering same to the United States Postal Service on this 11th day of

March, 2015.




                                         /s/Leslie McFarlane




            WORD COUNT CERTIFICATE OF COMPLAINCE



           The undersigned attorney certifies that this document was

prepared on the computer program Word for Mac 2011 and contains 3138

words.

                                         /s/ Leslie McFarlane



                                    13
