# Mark Aubrey Rogers, Jr. v. State

> Texas Court of Appeals, 1st District (Houston) · February 7, 2017

URL: https://www.frixlaw.com/law-library/cases/4125438

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** February 7, 2017
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Opinion issued February 7, 2017

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-16-00968-CR
———————————
MARK AUBREY ROGERS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Court
Colorado County, Texas
Trial Court Case No. 15-24295

MEMORANDUM OPINION

Appellant Mark Aubrey Rogers, Jr. attempts to appeal from a judgment of
conviction entered on May 12, 2016. On May 25, 2016, the trial court granted the
State’s motion for a new punishment hearing.*

*
Although no clerk’s record has been filed in this appeal, the clerk’s record in
appellant’s related appeal, cause number 01-16-00583-CR, styled Ex parte
Mark Aubrey Rogers, Jr., contains the March 25, 2016 trial court order (and
Generally, an appellate court only has jurisdiction to review a final judgment

of conviction. See Workman v. State, 343 S.W.2d 446, 447 (Tex. Crim. App. 1961);

Means v. State, 825 S.W.2d 260, 260 (Tex. App.—Houston [1st Dist.] 1992, no pet.).

When a new punishment hearing has been granted, there is no final conviction to

appeal. See Norris v. State, No. 02–10–014–CR, 2010 WL 1854138, at *1 (Tex.

App.—Fort Worth May 6, 2010, no pet.) (dismissing appeal for lack of jurisdiction

because no final, appealable judgment existed after trial court granted motion for

new punishment hearing); TEX. R. APP. P. 21.9(b) (“Granting a new trial restores the

case to its position before the former trial . . . .”).

Because there is no longer an appealable judgment of conviction, we have no

jurisdiction over this appeal and can take no action other than to dismiss the appeal.

See Collier v. State, No. 14–13–00096–CR, 2013 WL 1197896, at *1 (Tex. App.—

Houston [14th Dist.] Mar. 26, 2013, no pet.) (dismissing appeal for lack of

jurisdiction when no final judgment existed after motion for new trial was granted).

Despite receiving notice of our intent to dismiss this appeal for lack of jurisdiction,

appellant did not file a response.

We dismiss the appeal for want of jurisdiction. We dismiss any pending

motions as moot.

the nunc pro tunc order correcting the date to May 25, 2016) granting the
State’s motion for a new punishment hearing.

2
PER CURIAM

Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4125438. Public record. Not legal advice.