Jerrard McGary v. State

















In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana



______________________________



No. 06-08-00226-CR

______________________________





JARRARD MCGARY, Appellant



V.



THE STATE OF TEXAS, Appellee






On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 96-F-377-5










Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley



MEMORANDUM OPINION



Jarrard McGary, pro se appellant, has filed with this Court a motion to dismiss his appeal from the denial of his request for post-conviction DNA testing.

McGary's attorney filed an Anders (1) brief March 23, 2009, and simultaneously filed his motion to withdraw and advised McGary of his right to review the record and to file a pro se response.

McGary has requested, and been granted, three extensions of time by this Court to file his pro se response, stating in his requests for extensions that he has not received the full record from the district clerk. We have contacted the district clerk, who has assured us that she has sent everything she has to McGary. According to the district clerk, the last portion of the record McGary is evidently requesting does not belong to the district clerk, but belongs to McGary's trial counsel. It also appears that this record is not of the DNA hearing, but of his underlying 1997 trial for murder.

This Court, and the district clerk, having done all we can to accommodate McGary's requests for the record, and McGary now having requested to dismiss his appeal, we grant the motion.



We dismiss the appeal.





Bailey C. Moseley

Justice



Date Submitted: September 9, 2009

Date Decided: September 10, 2009



Do Not Publish



1. See Anders v. California, 386 U.S. 738 (1967).

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00005-CR

                                                ______________________________

 

 

                                             JARVIS HILL, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                  

 

 

                                       On Appeal from the 115th Judicial District Court

                                                            Upshur County, Texas

                                                            Trial Court No. 15,449

 

                                                                                                   

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss


                                                      MEMORANDUM OPINION

 

            Appellant, Jarvis Hill, filed a notice of appeal January 6, 2011, from his conviction for aggravated robbery with a deadly weapon.  Hill also filed a motion for new trial.  The trial court subsequently granted that motion for new trial, and Hill has therefore filed a motion to dismiss his appeal. 

            When the trial court grants a motion for new trial, it restores the case to its position before the former trial.  Tex. R. App. P. 21.9(b).  Because there is no conviction from which to appeal, we have no jurisdiction to consider Hill’s appeal.  See Waller v. State, 931 S.W.2d 640, 643–44 (Tex. App.—Dallas 1996, no pet.).

            Consequently, Hill’s motion to dismiss is granted, and we dismiss the appeal as moot.

 

 

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

 

Date Submitted:          February 16, 2011      

Date Decided:             February 17, 2011

 

Do Not Publish