Filing Appellate Record Divests Trial Court of Its Jurisdiction
In Ex parte Drewery, 677 S.W.2d 533, 536 (Tex. Crim. App. 1984), the Texas Court of Criminal Appeals held that it is not the filing of the notice of appeal, but the filing of the appellate record in the court of appeals that divests the trial court of its jurisdiction to rule on a timely filed motion for new trial. Id.
In reaching this conclusion, the court relied on Article 44.11 of the Texas Code of Criminal Procedure (current version at TEX. R. APP. P. 25.2), which provides that the trial court's jurisdiction will be suspended on the filing of the appellate record in the court of appeals. Id.
Although the Drewery case has been overruled on other grounds, we find that this basic premise still holds true.
There has been no change in the case law or the statutes since Drewery that would suggest otherwise.
In Armstrong v. State, 805 S.W.2d 791 (Tex.Cr.App. 1991), the court of appeals affirmed the appellant's conviction and the Court of Criminal Appeals held that the State was not entitled to "re-litigate the habitual offender allegation." Id. at 794.
Therefore, the court of appeals was precluded from addressing the merits of the State's appeal and any opinion rendered on the merits of the State's case from the court of appeals would be merely advisory. Id.