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: [email protected] 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).

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: [email protected] 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: [email protected] 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