New Trial on the Issue of Punishment Alone
Article 44.29(b) reads in pertinent part:
If the court of appeals or the Court of Criminal Appeals awards a new trial to a defendant . . . only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial under Subsection (b), Section 2, Article 37.07 of this code. TEX. CODE. CRIM. P. ANN. art. 44.29(b) (Vernon 2000).
In State v. Hight, 907 S.W.2d 845 (Tex. Crim. App. 1995), the court applied its holding from State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994), concluding that Texas Rule of Appellate Procedure 32 and Code of Criminal Procedure article 44.29, do not permit a trial court to order a new trial on the issue of punishment only. Hight, 907 S.W.2d at 846.
Hight held that such an order may only come from an appellate court. Id.
The court continued: "Rule 32 clearly states that granting a new trial by a trial court 'restores the case to its position before the former trial.' Granting a new trial as to punishment only would not restore the case to a position before the trial . . . ." Id.