Tuesday, February 9, 2010

Mistrial Order Not Immediately Appealable

Interlocutory appeal from trial court's order granting a mistrial is not authorized by statute. Attempted appeal in absence of final judgment is therefore dismissed for want of jurisdiction.

Vo v. Doan (pdf) (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam dismissal)(no interlocutory appeal permitted from trial court's order granting mistrial)


This is an attempted appeal from an order declaring a mistrial signed October 20, 2009. The clerk’s record was filed on January 7, 2010.

Generally, appeals may be taken only from final judgments. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).

There is no statutory provision to appeal an order granting a mistrial.

On January 12, 2010, notification was transmitted to the parties of this court’s intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating grounds for continuing the appeal on or before January 25, 2010. See Tex. R. App. P. 42.3(a). Appellant filed a response acknowledging that no final judgment has been signed in this case. Appellant also stated he did not object to dismissal of the appeal, but he did not waive any other rights to seek review the trial court’s order, including by petition for writ of mandamus.

Accordingly, the appeal is ordered dismissed.

Before Chief Justice Hedges, Justices Anderson and Christopher
14-09-01009-CV Andrew T. Vo d/b/a Larry Vo, Viet Le, Tam Van Le, and Vo-Le, Inc. v. Ho Kim Doan
Appeal from 129th District Court of Harris County
Trial Court Judge:
Michael Gomez

No comments: