State v. Jacob Allan Bosch ( 2009 )

Dismissed and Memorandum Opinion filed August 27, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00555-CR

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THE STATE OF TEXAS, Appellant

V.

JACOB ALLAN BOSCH, Appellee

On Appeal from County Court at Law No. 1

Fort Bend County, Texas

Trial Court Cause No. 129353

M E M O R A N D U M   O P I N I O N

This is an attempted appeal by the State from the granting of a motion for new trial. See Tex. Code Crim. Proc. art. 44.01(a)(3).  The clerk=s record was filed on July 17, 2009. The record does not contain an order granting defendant=s motion for new trial.

On August 3, 2009, notification was transmitted to the parties of this court=s intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating grounds for continuing the appeal on or before August 18, 2009.  On August 7, 2009, a supplemental clerk=s record was filed.  It does not contain an order granting defendant=s motion for new trial.

On August 11, 2009, the State filed a response to our notice that acknowledges no order granting the defendant=s motion for new trial has been signed.  The response requests we continue the appeal and ask the trial court to explain why no written order has been filed.  Alternatively, the response asks we abate the appeal and remand it to the trial court for an explanation as to why no written order has been filed.

We cannot Acontinue@ the appeal in the absence of an order.  A State=s appeal under article 44.01 must be from a signed written order.  See State v. Cox., 235 S.W.3d 283, 284 (Tex. App. B Fort Worth 2007, no pet.) (citing State v. Rosenbaum, 818 S.W.3d 398 (Tex. Crim. App. 1991)).  Because there is no order in the record from which the State may appeal, our jurisdiction has not been invoked.  Rule 2 of the Texas Rules of Appellate Procedure prohibits us from abating and remanding the case to allow the trial court another opportunity to enter an appealable order.  Id. at 285 (citing Tex. R. App. P. 2. which provides A. . . a court must not construe this rule to suspend any provision of the Code of Criminal Procedure. . .@).   Further, we have no appellate jurisdiction to address the trial court=s refusal to enter a signed written order granting the motion for new trial.  That issue may be addressed by mandamus.  See State v. Cox., 235 S.W.3d 283, 287 n. 14 (Tex. App. B Fort Worth 2007, no pet.) (citing In re Hancock, 212 S.W.3d 922, 926 (Tex. App. B Fort Worth 2007, orig. proceeding)).

Accordingly, we deny the State=s requests and order the appeal dismissed for want of jurisdiction.

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PER CURIAM

Panel consists of Justices Anderson, Guzman, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).