In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-07-546 CR
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JERRY GLYNN STEPHENS, Appellant
V.
THE STATE OF TEXAS, Appellee
Montgomery County, Texas
Trial Cause No. 05-210675
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.
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STEVE McKEITHEN
Chief Justice
Opinion Delivered January 30, 2008
Do Not Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.