## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O . P D
- 1 4 0 6
- 1 4

J O S E R A M I R O D E L A R O S A , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E F I F T H C O U R T O F A P P E A L S

D A L L A S C O U N T Y
R IC H A R D S O N , J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h K E L L E R , P . J . , J O H N S O N , K E A S L E R , H E R V E Y , A L C A L A , Y E A R Y , a n d N E W E L L , J J . , j o i n e d . M E Y E R S , J . , d i s s e n t e d . O P I N I O N A jury convicted appellant of unauthorized use of a motor vehic le on J uly 9, 2014, and the trial court enter ed judgme nt and cer tificate of rig ht to appea l. The issue befor e this Court arises from the eve nts that followed. The Time Lin e Ex cept a s noted, all dates a re f rom 2014. J uly 9 T h e t ri al j u d g e e n t e r e d j u d g m e n t a n d a c e r t i f i ca t e o f ri gh t t o appea l. T E X
. R. A P P
. P. 25.2(d).Aug ust 1 Appellant timely filed his pro se notice of a ppeal. T E X
. R. A P P
. P. 25.2(b), (c ). Aug ust 5 The trial judg e appointed a ppellate c ounsel. Aug ust 6 Appellate counsel timely filed a motion for new trial, which is file-stampe d Aug ust

6 and on which the trial court circ led “g rante d” and signe d the motion. T E X
. R. A P P
. P. 21.4. Whil e we do not know whethe r t h e t ri al court ruled on the motion on Aug ust 6 or at a later time, we can establish that it g rante d the motion befor e September 22, beca

use on that date—the 75 d ay afte r sentenc ing —the court of t h 1

a p p e als notes appellant’ s motion to dismiss his appea l and the State’s counter -mot io n to abate the appea l, both based on the g rant of a new trial. Both the motion and g rant of newtrial wer e thus timely

. Aug ust 12 Desig nation of the a ppellate r ecor d was filed w ith county cler k. September 5 The c lerk’s r ecor d was filed. September 12 The repor

ter’s rec ord was filed. At this point, the trial court lost jurisdiction to act. “Onc e the rec ord has been filed in the appellate court, all further proce eding s in the trial court—e x ce pt as provided otherwise by law or by these rules—will be suspended until the trial court rec eives the appellate -cour t mandate.” T E X
. R. A P P
. P. 25.2(g ). September 22 Appellant moved to dismiss appellant’ s appea l, and the State filed a motion to abate

.

This date mar

ks 75 day s after

judgme nt and sentenc e. October 2 Be cause of the g rant of a new trial, the court of appea ls dismi ssed appe llant’s appea l

for lack of jurisdiction. Delarosa v. State , No. 05-14-01020- CR, 2 0 1 4 Tex. App. L EXI S 11034 (Tex. App.—Dallas October 2, 2014) (not desig nated for publication). October 16 The State filed its timely petition for discre tionary revie w.

T E X
. R

. A P P
. P

. 2 1

. 6

. 1October

20 Appellant filed a response to the State’s petition and, based on t h e grant of a new trial, moved to dismiss t he State’s pe tition. November

4 The c ourt of appe als’ re cord w as re ceive d by this Court. Dec ember

17 The trial court enter ed a new judgment, m emorializing that the S tate and appellant had ag ree d on a plea barg ain and had disposed of the case for one y ear in sta te jail. The judgme nt notation about the awa rd of back- time indicates that appellant should have disc harg ed his sentenc e on or a bout March 6, 2015. J anuar y 28, 2015 This court g rante d revie w of the State’s petition. Delarosa v. State , PD-1406-

14, 2015 Tex. Crim. App. L EXI S 57 (Tex. Crim. App. J anuar y 28, 2015) (not desig nated f

or publication). Be cause the trial court had enter ed a new judgme nt, appellant moved to dismiss the State’s petition as moot. We order ed the parties to brief the issue of whether the trial court had jurisdiction
t o en t er a new judgme nt afte r the State filed its petition. We conclude that it did not; it lost jurisdiction on September 12 whe n the re cord w as filed. Analysis A timely notice of appea l invokes the jurisdiction of the appropr iate court of appea ls. Olivo

v. State , 918 S.W .2d 519 (Tex. Crim. App. 1996). But the filing of a notice of appea l does not divest the trial court of jurisdiction to hear and rule on an otherwise timely filed motion for new trial. Hall

v. State , 698 S.W

. 2 d 150 (Tex. Crim. App. 1985). Howeve r, the State has the rig ht to appea l the
g rant of a new trial. State v. Gonzalez , 855 S.W .2d 692 (Tex. Crim. App. 1993). Even afte r notice of appea l ha s been filed, the trial court reta ins jurisdiction to, among other thing s, supplement and
approve the rec ord for forwa rding to the appropr iate court of appea ls. Homan v. Hughes , 708 S.W .2d 449 (Tex. Crim. App. 1986). Only when the rec ord has been filed in the appellate court are further
proce eding s in the trial court suspende d. Id.; T E X
. R. A P P
. P. 25.2(g ).The State has filed a motion urg ing this Court to deny appellant ’s m o t i o n to dismiss the

State’s petition for discretionar y revie w, asser

ting that: the assistant district attorney who filed that motion did not reme mber pleading the case ; the assistant district attorney who signe d the pleabarg ain paper s, appellant, and appellant’ s counsel signe d the paper s on Dec ember 10, but the judge didn’t sign until Dec ember 17, so the judgme nt “wa s enter ed as a result of some ty pe of mistake or misunderstanding ;” and the assistant district attorney who signe d the paper s told the filing assistant district attorney that appellant had reje cted the plea barg ain o ff er and that the assistant district attorney “neve r par

ticipated in any

actua l plea bar g ain hea

ring reg arding

appellant’ s case .” The State a

rg ues t hat t hese things rebut the pre sumption of reg ularity , but it does not offer

an explanation f

or why the trial court would sign the paper s if either appellant reje cted the offe r or the State was not repr esente d at sentenc ing by an assistant district attorney , or why the orig inal g rant of a new trial was a mistake when the trial court, by eff ectively holding a new trial, behave d as if it fully intended to g rant such a

trial. The rec ord ref

lects that the trial court g rante d a new trial. That the trial court’s g rant of a new trial was intended is supported by the trial court’s decision to acc ept both appellant’ s plea of g uilty and the parties’ ag ree d plea barg ain during the improper hear ing in Dec ember

. T h e re co rd al so ref lects that, in the Dec ember 17 hear ing, appellant pled g uilty to the char g es pursuant to a plea barg ain, that eve ry entity involved responde d as if the proce eding wer e valid, and that appellant should have discha

rg ed his sentenc e on or a

bout March 6, 2015. 2

I f h e h a d d i s c h a r g e d t h e s e n t e n c e a s s e s s e d d u r i n g t h e D e c e m b e r p r o c e e d i n g , h e w o u l d n o t a p p e a r o n T D C J ’ s 2
w e b s i t e a s b e i n g i n c u s t o d y , a n d i n f a c t , h e d o e s n o t

. H o w e v e r , i t i s n o t u n c o m m o n f o r s t a t e j a i l s h o r t

- t i m e r s , s u c h a s a p p e l l a n t , t o s e r v e o u t t h e i r s e n t e n c e s i n t h e c o u n t y j a i l

– n e v e r m a k i n g i t i n t o f o r m a l T D C J c u s t o d y

– b u t a p p e l l a n t a l s o d o e s n o t a p p e a r t o b e i n D a l l a s C o u n t y ’ s c u s t o d y .Conclusion

The trial court did not have jurisdiction over this case afte r the rec ord was filed in the court of appea ls, but the rec ord supports a finding that the valid g rant of a new tria l is still pe nding. We there fore dismiss the State’s petition for discr etionary revie w as improvidently g rante d. After the
court of appea ls issues its mandate, jurisdiction will return to the trial court for further proce eding s.

Deliver ed: April 29, 2015 Do not publish