Johnny Lee Rey v. State ( 2010 )

NO. 07-10-0309-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 21, 2010
______________________________
JOHNNY LEE REY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE DISTRICT 251ST COURT OF RANDALL COUNTY;
NO. 6989-C; HONORABLE ANA ESTEVEZ, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Johnny Lee Rey, was convicted of murder in 1995 and sentenced to
life in prison. On February 23, 2010, the trial court signed an Order to Withdraw Inmate
Funds pursuant to section 501.014(e) of the Texas Government Code for "court costs,
fines and fees" in the amount of $74,509.65. On March 15, 2010, Appellant filed a
Motion to Strike/Withdraw Void Order to Withdraw Inmate Funds challenging the trial
court's February 23, 2010 order.1 Appellant's motion was denied by written order on
June 25, 2010. Appellant timely filed a Motion for New Trial and Notice of Appeal
challenging the trial court's June 25, 2010 order.
On September 9, 2010, the trial court clerk filed a Supplemental Clerk's Record
containing an Order Granting New Trial reflecting that Appellant's Motion to
Strike/Withdraw Void Order to Withdraw Inmate Funds had been reinstated on the trial
court's docket.
The legal effect of an order granting a new trial is to vacate the original judgment
and return the case to the trial court as if no judgment had been entered. See Old
Republic Ins. Co. v. Scott, 846 S.W.3d 832, 833 (Tex. 1993). See also Markowitz v.
Markowitz, 118 S.W.3d 82, 88 (Tex.App.BHouston [14th Dist.] 2003, pet. denied); Long
John Silver=s, Inc. v. Martinez, 850 S.W.2d 773, 777 (Tex.App.BSan Antonio 1993, writ
dism=d w.o.j.). Thus, there is no final judgment or order from which an appeal may be
prosecuted in this case.
Accordingly, the appeal is dismissed.
Per Curiam
1
See Harrell v. State, 286 S.W.3d 315, 321 (Tex. 2009). In Harrell the Texas Supreme Court held that
due process entitles an inmate to receive notice and an opportunity to be heard, even though those
requirements might be accorded after the order to withdraw, and that a hearing on a motion to rescind or
correct that order satisfied those requirements.
2