The trial court convicted Jerry Glynn Stephens of driving while intoxicated. Stephens was sentenced on October 17, 2007. Within thirty days of sentencing, Stephens filed a motion for new trial and a notice of appeal. Tex. R. App. P. 21.4(a), 26.2(a)(2). The trial court granted the motion for new trial on November 26, 2007. Tex. R. App. P. 21.8.

If the trial court grants a new trial, it restores the case to its position before the former trial. Tex. R. App. P. 21.9(b). The notice of appeal filed by Stephens does not invoke our appellate jurisdiction because the judgment being appealed has been vacated by the granting of the motion for new trial. See Waller v. State, 931 S.W.2d 640, 643-44 (Tex. App.--Dallas 1996, no pet.). The State did not file a notice of appeal. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(3) (Vernon Supp. 2007). The appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.

_____________________________

STEVE McKEITHEN

Chief Justice

Opinion Delivered January 30, 2008

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.