NUMBER 13-01-860-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

OSCAR RENE SILGUERO,                                          Appellant,

                                           v.

THE STATE OF TEXAS                                               Appellee.

                  On appeal from the 332nd District Court

                           of Hidalgo County, Texas.

           CONCURRING MEMORANDUM OPINION

ON MOTION FOR REHEARING FOR

EN BANC CONSIDERATION

Before the Court En Banc

Concurring Memorandum Opinion by Justice Castillo

The en banc majority denies appellant Oscar Rene Silguero's motion for en banc consideration.  See Tex. R. App. P. 41.2(c), 49.7.  I concur with the majority decision.  However, I write separately to briefly address Silguero's complaints as to our jurisdiction.

I.  Issues Presented

By six issues, Silguero asserts that this Court does not have jurisdiction over his appeal because the trial court granted his motion for new trial and the absence of the State's appeal divests this Court of jurisdiction.   

II.  The Record

          On October 24, 2001, the trial court entered judgment on both counts alleged in the indictment.  On November 16, 2001, Silguero filed a pro se motion for new trial asserting as grounds sufficiency of the evidence and jury misconduct.  That same day he filed a pro se notice of appeal.  On November 19, 2001, the trial court granted defense counsel's motion to withdraw and entered the following order:

ORDER FOR NEW TRIAL

On this the 19th day of November, 2001, came to be heard Defendant's Motion for New Trial, and it appears to the court that this motion should be

GRANTED    [interdelineated]              DENIED [circled]

          IT IS THEREFORE ORDERED that a new trial be conducted in the above-entitled and numbered case.

On December 20, 2001, the trial court appointed appellate counsel.  By panel opinion, this Court affirmed the judgments.  At the crux of Silguero's motion for en banc consideration is our jurisdiction. 

III.  En Banc Consideration

En banc consideration should not be ordered unless necessary to secure or maintain uniformity of the Court's decisions or unless extraordinary circumstances require en banc consideration.  Tex. R. App. P. 41.2(c).  I conclude that the question of jurisdiction presents an extraordinary circumstance.  Id.  Jurisdiction is fundamental and cannot be ignored.  State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996).  Our jurisdiction must be legally invoked.  Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex. Crim. App. 1964).  If not legally invoked, our power to act is as absent as if it did not exist.  Id.  When we lack jurisdiction to act, we have no power to dispose of the purported appeal in any manner other than dismissal for lack of jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996).

However, in this case, our jurisdiction is unequivocally established.  By interdelineating "GRANTED" on the motion-for-new-trial order and circling "DENIED," the trial court demonstrated its intent to deny the motion.  The remaining language in the order is surplusage and, thus, of no effect.  Further, the docket sheet contains an entry dated November 19, 2001 stating in part, "Order for new trial denied and signed."   Silguero timely filed an appeal.  Prevailing below, the State need and did not appeal. 

IV.  Conclusion

The issues in Silguero's motion are important, but he has not demonstrated lack of this Court's jurisdiction over his appeal.  Therefore, respectfully, I concur with the decision to deny consideration en banc.  Tex. R. App. P. 41.2(c), 49.7.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b)

Concurring Memorandum Opinion delivered

and filed this 20th day of April, 2006.