State v. Douglas C. Wright A/K/A C. Douglas Wright ( 2006 )

                             NUMBER 13-05-268-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                             Appellant,

                                           v.

DOUGLAS C. WRIGHT

A/K/A C. DOUGLAS WRIGHT                                      Appellee.

             On appeal from the County Court at Law No. 3

                           of Cameron County, Texas

DISSENTING MEMORANDUM OPINION

ON MOTION FOR REHEARING

Before Justices Yañez, Castillo and Garza

Dissenting Memorandum Opinion by Justice Castillo

In the State's direct appeal, by separate opinions, we decided that, essentially, the State had not shown its appeal is authorized.  On motion for rehearing, the State asserts that the appealed-from order is in actuality either an order arresting judgment or an order granting a new trial and, thus, appealable under article 44.01.^[1]  See Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2005).

Our review is limited to jurisdictional questions.  Wooldridge v. State, 158 S.W.3d 484, 485 (Tex. Crim. App. 2005); see State v. Gutierrez, 129 S.W.3d 113, 115 (Tex. Crim. App. 2004) (holding that it is error to focus on merits of State's appeal in determining whether State's appeal is statutorily authorized).  Another panel of this Court recently found appellate jurisdiction on grounds that entry of an instructed verdict served as "both a functional acquittal [of the greater charged offense] and grant of a new trial."  See State v. Cook, No. 13‑04‑533‑CR, 2006 Tex. App. LEXIS 460, 7‑8 (Tex. App.BCorpus Christi, January 19,  2006) (not designated for publication). Accordingly, guided by the rationale in Cook, I agree with the State that, in this case, the trial court's entry of an acquittal was the functional equivalent of granting a new trial. See id.  Because the State is statutorily authorized to appeal the grant of a new trial, I conclude we have jurisdiction.  Tex. Code Crim. Proc. Ann. art. 44.01(a)(3). Because the State's appeal is tied to its request for extraordinary relief, I would grant the motions in both proceedings. 

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b)

Dissenting Memorandum Opinion delivered

and filed this the 13th day of April, 2006.

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^[1]The State is entitled to appeal an order of a court in a criminal case if the order arrests or modifies a judgment or grants a new trial.  Tex. Code Crim. Proc. Ann. art. 44.01(a)(2), (3) (Vernon Supp. 2005).