OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

Appellant was convicted by a jury of indecency with a child and his punishment was assessed at seven years confinement, probated, and a $5000.00 fine. On appeal he contended, inter alia, that the trial court erred to continue on with his trial after having granted a mistrial in the cause. The Texarkana Court of Appeals agreed, holding that once the trial court granted the mistrial, it was without authority to rescind that order, and reversed. Rodriguez v. State, 834 S.W.2d 610 (Tex.App.—Texarkana 1992). We granted the State’s petition for discretionary review to determine the novel question whether the trial court had authority to rescind its grant of a mistrial. Tex.R.App.Pro., Rule 200(c)(2).

During the presentation of defensive evidence, the trial court granted defense counsel’s motion for mistrial based upon a comment the trial judge made in front of the jury. ^[1] After the mistrial had been granted but before the trial court had addressed the jury to explain what had occurred, the prosecutor asked for a bench conference. Out of an abundance of caution, the trial court removed the jury from the courtroom. The ostensible purpose of the conference was to make sure appellant understood that because he had requested the mistrial, he could be retried. However, at one point during the conference, the State turned the discussion back to the appropriateness of the trial court’s order of mistrial. After further discussion off the record, the trial court withdrew the order. The trial court then brought the jurors back into the courtroom and instructed them to disregard its earlier, objectionable comment. The trial resumed, and ultimately appellant was convicted.

The court of appeals held that the trial court’s declaration of a mistrial required that the subsequent judgment be reversed. Initially, the court of appeals noted that the trial court never expressly “rescinded” its order of mistrial. The court of appeals observed that “[o]n this factual basis, the proceeding could be treated as if a mistrial had been granted and no order ‘rescinded’ that mistrial, thus requiring a reversal of the judgment.” Rodriguez v. State, supra, at 612. Despite this potential “factual basis” for reversal, the court of appeals declared that its “decision ... rests further on a legal basis.” Thus, the court of appeals held “further” that the trial court was not authorized to withdraw its pronouncement of mistrial and “the order, if any, rescinding the order granting the mistrial was void and of no effect.” Id.

Appellant argues that we need not reach the “legal basis” for the court of appeals’ opinion. He maintains that the State has failed to challenge what he deems to be an alternative, “factual basis” for its decision, and that, given this alternative basis for decision, any ruling we might make on the issue we granted discretionary review to address would be purely advisory. We do[*518] indeed note an ambiguity in the court of appeals’ opinion. However, when the court of appeals declared that its decision “rests further on a legal basis[,]” we take that to mean the court eschewed the potential “factual basis” for decision in favor of its subsequent legal analysis. ^[2] We therefore proceed to the question for review, viz: whether a trial judge has authority to rescind or withdraw an order of mistrial.

As the court of appeals noted, this is indeed a question of first impression. Because of the absence of cases addressing this issue, the court of appeals was obliged to resort to analogy. Accordingly, the court of appeals cited State v. Garza, 774 S.W.2d 724 (Tex.App.—Corpus Christi 1989, pet. ref’d), and reasoned that the trial court’s order of mistrial was “functionally indistinguishable” from an order granting a new trial. The authority of the trial court to rescind an order of mistrial is therefore limited by the “well established rule” that, absent clerical errors, an order granting a new trial cannot be rescinded. Matthews v. State, 40 Tex.Cr.R. 316, 50 S.W. 368 (1899).

The court of appeals’ analogy is flawed. In State v. Garza, supra, the Corpus Christi Court of Appeals concluded that the trial court’s post-verdict mistrial ruling was functionally indistinguishable from an order granting a hew trial; therefore, the State could appeal from the granting of the motion for mistrial. See Article 44.01, V.A.C.C.P. The court of appeals held that because the order of mistrial set aside the jury’s verdict of guilt, “the trial court’s order, in substance, was one granting a new trial.” State v. Garza, supra, 774 S.W.2d at 726; See Tex.R.App.Pro., Rule 30. ^[3] Nevertheless, the court of appeals recognized that generally a motion for mistrial and a motion for new trial are not the same. Indeed, although nowhere expressly provided for in the Code of Criminal Procedure, an order of mistrial ordinarily occurs before completion of the trial and the rendition of judgment. An order for new trial, however, comes only after sentence is imposed in a completed trial. Tex.R.App.Pro., Rule 31. Unlike the unusual order of mistrial in Garza, the trial court’s order of mistrial in the instant cause did not set aside a jury’s verdict, but occurred mid-trial, prior to any finding or verdict of guilt. Under these circumstances, it cannot be said that the trial court’s ruling was “indistinguishable” from an order of new trial.

In any event, whether or not a mistrial and an order granting a new trial are invariably “functionally indistinguishable,” we are not persuaded that Matthews, supra, prohibits the trial court’s actions in the instant case. In Matthews, this Court interpreted the then-extant criminal statutes concerning new trials and concluded that[*519] “it would appear that the granting of a new trial in a criminal case is a finality, and not subject to a reconsideration during the term.” Id., 50 S.W. at 369. Consequently, we held the trial court did not have authority to set aside or overrule its order granting a new trial. However, the Court did not cite any case authority in support of this holding. And it is far from obvious that our provisions governing motions for new trial, then or now, would dictate such a rule. ^[4]

In the few cases in which this Court has revisited Matthews, there has yet to be a clear explanation for the trial court's lack of authority to vacate its order granting a new trial. In every case the rule set out in Matthews has been applied without question or further explication of its rationale. See Moore v. State, 749 S.W.2d 54 (Tex.Cr.App.1988); English v. State, 592 S.W.2d 949 (Tex.Cr.App.1980); Davis v. State, 394 S.W.2d 521 (Tex.Cr.App.1965); Alexander v. State, 129 Tex.Cr.R. 500, 89 S.W.2d 411 (1936). Our decision in Moore provides perhaps the clearest explanation for such a rule. There we held that a trial court did not have authority to rescind its order granting a new trial when the grant of new trial was based solely on insufficiency of the evidence. Under those circumstances, the court no longer had jurisdiction over the case because the grant of new trial was equivalent to an acquittal and “to allow a trial judge to change his ruling and deny the motion having once granted it” would violate principles of double jeopardy. Moore, 749 S.W.2d at 58. This rationale is limited to new trials granted on the basis of legally insufficient evidence, however, and does not fully justify the holding in Matthews.

Moreover, the holding in Matthews does not appear to be the majority view among jurisdictions that have decided the question. A majority of the states are of the view that a trial court does have power to rescind its order granting a new trial in a criminal case. See Annotation, Power of Trial Court or Judge to Revoke Order Granting New Trial in Criminal Case, 145 A.L.R. 400 (1943). Nevertheless, without a better explanation for why a trial court may not rescind an order granting a new trial, we are reluctant to extend that holding by analogy to prohibit a trial court from rescinding a mistrial order, especially where the two are not “functionally indistinguishable” as was the case in Garza.

Appellant argues further, and the court of appeals agreed, that the declaration of a mistrial has the practical effect of restoring the case to its pre-trial status, thereby rendering the pending trial a “nugatory proceeding.” Appellant contends that “by virtue of such an order, the trial itself becomes a dead horse, not susceptible to resurrection.” A similar argument was made to this Court with success in the context of the dismissal of an indictment. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App.1980). In Garcia we held that once a trial court had dismissed the indictment against the accused, the jurisdiction of the[*520] trial court was exhausted, and an order entered thereafter purporting to reinstate that cause was void. Unlike the dismissal of the indictment in Garcia, in the present context of an order of mistrial there is still an indictment to confer subject-matter and personal jurisdiction over the cause. Although a declaration of mistrial renders a pending trial a “nugatory” proceeding, this does not mean that following an order of mistrial the trial court has lost its jurisdiction over the cause, as was true in Garcia. Thus, at least as a matter of jurisdiction, the trial court does not lack authority to withdraw or rescind its order of mistrial. Appellant suggests, and we can conjure no other reason to hold that the trial court lacked authority to correct or modify its orders. That an order granting a mistrial that is not subsequently withdrawn does indeed have the effect of nullifying all proceedings to that point does not mean the trial court may not rescind that order, and continue with the trial, so long as that remains a viable option under the circumstances.

Here the trial court declared a mistrial, but that order was apparently withdrawn before the jury was discharged and presumably even before the jury was made aware of what exactly had occurred. On these facts, we hold that the trial court retained its authority to withdraw its order of mistrial. The court of appeals erred to conclude otherwise.

Accordingly, the judgment of the court of appeals is reversed and the cause remanded to that court for further disposition consistent with this opinion. ^[5]