Palmer, Zachary ( 2015 )

PD-0880-15
PD-0880-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/15/2015 11:03:19 AM
Accepted 7/17/2015 1:04:19 PM
ABEL ACOSTA
No. 02-14-00175-CR CLERK
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
THE STATE OF TEXAS, Appellant
v.
ZACHARY PALMER, Appellee
Appeal from Wise County
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
STACEY M. GOLDSTEIN
Assistant State’s Attorney
Bar I.D. No. 24031632
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512-463-1660 (Telephone)
512-463-5724 (Fax)
July 17, 2015
IDENTITY OF PARTIES, JUDGE, AND COUNSEL
* The parties to the trial court’s judgment are the State of Texas and Appellee,
Zachary Palmer.
* The trial Judge was Hon. John H. Fostel, 271st Judicial District Court.
* Trial counsel for the State was Tim Cole, Assistant District Attorney, 101 North
Trinity, Suite 200, Decatur, Texas 76234.
* Counsel for the State before the Court of Appeals was Patrick D. Berry,
Assistant District Attorney, 101 North Trinity, Suite 200, Decatur, Texas
76234.
* Counsel for the State before the Court of Criminal Appeals is Stacey M.
Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
Texas 78711.
* Counsel for Appellee at trial and before the Court of Appeals was Barry Green,
101 West Main, Decatur, Texas 76234.
i
TABLE OF CONTENTS
IDENTITY OF PARTIES, JUDGE, AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Did the State’s timely filed notice of appeal signed only by an assistant district
attorney invoke the court of appeals’ jurisdiction when the elected district
attorney’s untimely filed affidavit stated that he authorized the appeal when it
was filed?
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-10
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
APPENDIX A (Opinion of the Court of Appeals)
APPENDIX B (State’s Response to Appellee’s Motion to Dismiss State’s Appeal )
ii
INDEX OF AUTHORITIES
Cases
State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994). . . . . . . . . . . . . . . . . 8 n.14
State v. Blankenship, 146 S.W.3d 218 (Tex. Crim. App. 2004). . . . . . . . . 5, 5 n.9, 6
State v. Boseman, 830 S.W.2d 588 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . 5, 9
Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App 1998). . . . . . . . . . . . . . . . . . 8 n.4
State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007).. . . . . . . . . . . 7-8 n.12
Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App. LEXIS 6460
(Tex. App.—Houston [14th] 2015) (op. on remand) (Frost, J., concurring). . . 7 n.11
State v. Muller, 829 S.W.2d 805 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . 3-4, 6-9
State v. Palmer, __ S.W.3d __, No. 02-14-00175-CR, 2015 Tex. App. LEXIS 6572
(Tex. App.—Fort Worth 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4-5
State v. Redus, 445 S.W.3d 151 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . 10 n.16
State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . 5, 9-10
State v. Shelton, 830 S.W.2d 605 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . 7 n.10
State v. White, 261 S.W.3d 65 (Tex. App.—Austin 2007). . . . . . . . . 5, 5 n.8, 8 n.15
Statutes
T EX. C ODE C RIM. P ROC. art. 44.01(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3
T EX. C ODE C RIM. P ROC. art. 44.01(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4
T EX. C ODE C RIM. P ROC. art. 44.01(i).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iii
Secondary Sources
B LACK’S L AW D ICTIONARY 74 (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.11
B LACK’S L AW D ICTIONARY 1135 (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . 7 n.12
B LACK’S L AW D ICTIONARY 1184 (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . 8 n.13
iv
No. 02-14-00175-CR
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
THE STATE OF TEXAS, Appellant
v.
ZACHARY PALMER, Appellee
Appeal from Wise County
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State respectfully urges this Court to grant discretionary review.
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The State filed a notice of appeal from the trial court’s order granting
Appellee’s suppression motion. The notice was not signed by the elected district
1
attorney as required by Texas Code of Criminal Procedure Article 44.01(d), (i). In
response to Appellee’s motion to dismiss for want of jurisdiction, filed after the
appellate timetable expired, the State filed an affidavit from the district attorney,
stating that he had authorized the assistant district attorney to purse the appeal when
it was filed. The court of appeals held that consideration of the untimely affidavit as
proof of authorization was improper because it could not retroactively cure the notice
by amendment or ratification. The court then dismissed the State’s appeal.
STATEMENT OF PROCEDURAL HISTORY
In a published decision, the court of appeals dismissed the State’s appeal for
want of jurisdiction. State v. Palmer, __ S.W.3d __, No. 02-14-00175-CR, 2015 Tex.
App. LEXIS 6572 (Tex. App.—Fort Worth 2015). The State did not file a motion for
rehearing.
GROUND FOR REVIEW
Did the State’s timely filed notice of appeal signed only by an assistant district
attorney invoke the court of appeals’ jurisdiction when the elected district
attorney’s untimely filed affidavit stated that he authorized the appeal when it
was filed?
ARGUMENT
Texas Code of Criminal Procedure Article 44.01(a)(5) provides that the State
is entitled to appeal an order granting a motion to suppress if the “prosecuting attorney
certifies . . . that the appeal is not taken for the purpose of delay and that the evidence
2
. . . is of substantial importance to the case . . . .” “Prosecuting Attorney” means the
district attorney; it does not include an assistant district attorney. T EX. C ODE C RIM.
P ROC. art. 44.01(i). This requirement was intended to prevent the State from filing
frivolous appeals for purposes of harassment. State v. Muller, 829 S.W.2d 805, 811
n.7 (Tex. Crim. App. 1992).
In this case, the State timely filed a notice of appeal from the trial court’s order
granting Appellee’s motion to suppress.1 However, it was signed by an assistant
district attorney, not the Wise County District Attorney.2 The State then filed an
untimely amended notice of appeal, which was signed by the district attorney.3
Appellee moved to dismiss, arguing that the timely notice of appeal was
defective because it was not signed and therefore not authorized by the district
attorney.4 He also claimed that the amended notice was late, in violation of Texas
Code of Criminal Procedure 44.01(d), which states that a prosecuting attorney may
not make an appeal under subsection (a) later than 20 days after the order was
1
See 1 CR 70-71.
2
See 1 CR 70-71.
3
See 1 CR 75-76.
4
Appellee’s Motion to Dismiss State’s Appeal at 1-2. Because these
documents were filed in the court of appeals, they are not included in the trial-court
clerk’s record.
3
entered.5 The State filed a response, claiming that the assistant district attorney filed
the timely notice of appeal with the full authorization of the district attorney.6 In
support, the State attached an affidavit from the district attorney stating, in part:
With my full knowledge, authorization and under my direct instruction,
Patrick Berry filed a Notice of Appeal on April 7, 2014, within 20 days
required by Texas Rule of Appellate Procedure, Rule 26.2(b). Mr. Berry
signed said Notice of Appeal with my full consent and under my
instruction to do so on my behalf. I personally authorized Mr. Berry to
sign and file the Notice of Appeal at that time.
...
Although I did not personally sign the original Notice of Appeal . . . I did
personally authorize Patrick Berry . . . to sign said Notice on my behalf
and said Notice should be taken as my personal act, authorization, and
certification, of the appeal in the above-mentioned case.7
After twice denying Appellee’s motion to dismiss, Palmer, 2015 Tex. App.
LEXIS 6572, at * 3, the Fort Worth Court of Appeals dismissed the State’s appeal for
want of jurisdiction, relying primarily on this Court’s decision in State v. Muller. Id.
at *4-12. Following Muller, the Forth Worth Court held that the State’s first notice
was defective and that its untimely amended notice did not cure the defect. Palmer,
2015 Tex. App. LEXIS 6572, at *5. The district attorney’s affidavit, the court stated,
5
Appellee’s Motion to Dismiss State’s Appeal at 1-2.
6
See Appendix B, State’s Response to Appellee’s Motion to Dismiss State’s
Appeal at 1-3.
7
See Appendix B, State’s Response to Appellee’s Motion to Dismiss State’s
Appeal at Attachment A.
4
is no different than the amended notice. Id. Ratification after the filing deadline is
ineffective under State v. Boseman, 830 S.W.2d 588 (Tex. Crim. App. 1992), and
jurisdiction cannot be retroactively obtained under State v. Riewe, 13 S.W.3d 408
(Tex. Crim. App. 2000). Palmer, 2015 Tex. App. LEXIS 6572, at *6. The court also
rejected the State’s reliance on State v. Blankenship, 146 S.W.3d 218 (Tex. Crim.
App. 2004), and State v. White, 261 S.W.3d 65 (Tex. App.—Austin 2007), concluding
that both were distinguishable.8 Palmer, 2015 Tex. App. LEXIS 6572, at *6-9.
The court of appeals’ decision merits review. The particular facts of this case
parallel the second ground for review granted but left unaddressed by this Court in
Blankenship in 2004.9 In Blakenship, like this case, when the appellee urged the court
of appeals to dismiss for lack of jurisdiction, the State filed a response with an
accompanying affidavit from the elected county attorney, which stated that he had
consented to and authorized the appeal within the time for filing the appeal. 146
S.W.3d at 219. Arguing in the alternative to its reliance on a timely and properly
8
In White, the Austin Court of Appeals relied, in part, on the district attorney’s
affidavit, filed after the appellate deadline, that provided the date he had filed the
notice of appeal. 261 S.W.3d at 67.
9
Instead, this Court relied on the State’s timely signed amended notice when
holding that the court of appeals’ jurisdiction had been properly invoked.
Blankenship, 146 S.W.3d at 220. Even though the notice was signed by an
assistant county attorney, it included a “written express personal authorization by
the County Attorney of this specific notice of appeal in this particular case.” Id.
5
signed amended notice, the State submitted the following ground for review: “The
Court of Appeals erred in holding, in effect, that the State’s notice of appeal requires
the personal signature of the ‘prosecuting attorney.’” Id. at 219 n.3. This Court
should decide whether a State’s notice of appeal that is signed by an assistant district
attorney deprives an appellate court of jurisdiction when the district attorney later
explains in an affidavit, filed after the appellate timetable expired, that he had
authorized the “making of the appeal” when it was filed. There is no precedent from
this Court addressing this situation, and the Forth Worth Court’s application of related
precedent is incorrect.
In Muller, the first assistant district attorney signed the notice of appeal. 829
S.W.2d at 806. Over eight months later, the court of appeals granted the State leave
to file an amended notice of appeal signed by the district attorney. Id. at 806-07. The
court of appeals held that the amended notice cured any defect in the original notice.
Id. at 807.
This Court reversed, holding that Article 44.01(d) plainly states that only the
“prosecuting attorney” may “make an appeal” under subsection (a). Id. at 810.
“Make an appeal” requires the prosecuting attorney “to personally supervise and
authorize the appeals to be undertaken by his office on behalf of the State.” Id. Thus,
“to comply with the statute, he must either physically sign the notice of appeal or
6
personally instruct and authorize a subordinate to sign the specific notice of appeal in
question.” Id. A statement that the appeal is taken “‘by and through the prosecuting
attorney’” is insufficient to prove that the prosecuting attorney has “performed the
safeguard function.”10 Id. at 811. And the authorization must occur before the time
for filing the notice expires. Id. at 810. This Court then held that the State’s first
notice of appeal was defective because the elected district attorney did not authorize
it within the time required. Id. at 811. Considering the late amended notice, this
Court determined that, because Article 44.01(d) limits the State’s substantive right to
appeal, it could not be cured by correction or amendment. Id. at 812-13. Therefore,
the court of appeals had no jurisdiction to consider the State’s appeal. Id. at 813.
Contrary to the Fort Worth Court of Appeals, correction or cure via
amendment,11 ratification,12 and retroactivity13 are inapplicable principles. All pertain
10
Nor is a district attorney’s signature stamp, coupled with the “live” signature
of an assistant district attorney, adequate. State v. Shelton, 830 S.W.2d 605, 606
(Tex. Crim. App. 1992).
11
“Amendment” means “[t]o change or modify for the better. To alter by
modification, deletion, or addition.” B LACK’S L AW D ICTIONARY 74 (5th ed. 1979).
One appellate court justice has observed that an amended document replaces the
original. Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App.
LEXIS 6460 (Tex. App.—Houston [14th] 2015) (op. on remand) (Frost, J.,
concurring).
12
“Ratify” means “[t]o approve and sanction; to make valid; to confirm; to give
sanction to.” B LACK’S L AW D ICTIONARY 1135 (5th ed. 1979). This Court has
recognized that ratification involves reaffirming an interpretation at a point later in
7
to subsequent, post-notice effective action. But such action is not at issue here. The
notice of appeal was proper at the time it was filed because the district attorney’s
authorization for filing was operative at that time. Therefore, no subsequent action
was needed. The affidavit merely memorialized the prior, timely authorization.14 The
circumstances here are in accord with the dictates of Muller. Muller indicated that
there is no requirement that the authorization appear on the face of the notice, just that
the appellate record clearly reflect its existence.15
Whenever a question is legitimately raised concerning the prosecuting
attorneys personal authorization of a State’s appeal, the State bears the
burden of proving that the appeal in question was personally, expressly
and specifically authorized by the prosecuting attorney. Thus, the
appellate record must clearly reflect the prosecuting attorney’s personal
authorization of the specific notice of appeal filed in a given case.
Without a signature or other written expressed authorization, as reflected
in the appellate record, there would be no guarantee that the only person
permitted by statute to make an appeal on behalf of the State actually
time. See State v. Colyandro, 233 S.W.3d 870, 878-85 (Tex. Crim. App. 2007).
13
“Retroactive” means “[r]etrospective,” which means “[l]ooking backwards;
contemplating what is past; having reference to a state of things existing before the
act in question.” B LACK’S L AW D ICTIONARY 1184 (5th ed. 1979).
14
See, e.g., Coffey v. State, 979 S.W.2d 326, 328-29 (Tex. Crim. App 1998)
(written judgment is intended to be a memorialization of oral pronouncement of
sentence); State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (“A
judgment nunc pro tunc . . . literally means ‘now for then’ . . . .”).
15
See also White, 261 S.W.3d at 68 (“neither the statute nor any opinion of
which we are aware establishes a time limit for the State to prove that the
prosecuting attorney did in fact properly authorize the appeal.”).
8
participated in the process. Evidence of a general delegation of authority
to an assistant does not qualify under the statute.
Muller, 829 S.W.2d at 810 n.6.
The existence of the Wise County District Attorney’s authorization was
established by affidavit. And because the notice of appeal was authorized, it was
made by the district attorney and thus invoked the court of appeals’ jurisdiction at that
time.
Boseman is inapposite because the county attorney had not authorized the
assistant country attorney to act on his behalf or appeal when the notice was filed.
There, the county attorney filed an untimely affidavit in response to Boseman’s
motion to dismiss, purporting to deputize the assistant county attorney to prosecute
the appeal and stating that he ratified and approved of the notice of appeal. 830
S.W.3d at 589. This Court held that the State lost its right to appeal when the
“window of opportunity closed without the county attorney’s personal and express
authorization of this specific notice of appeal.” Id. at 591.
Riewe is also not on point. In that case, the State failed to certify in its notice
that the appeal was not for delay and that the evidence was of substantial importance
9
to the case.16 13 S.W.3d at 409. After filing its brief, the State amended its notice
with the certifications. Id. This Court held that amended notice could not
retroactively invoke the court of appeals’ jurisdiction. Id. at 412. In this case, unlike
the absent certifications, the authorization here did in fact exist at the time the notice
was filed.
Nothing in this Court’s precedent requires that the existence of the district
attorney’s authorization to appeal appear on the notice itself. The district attorney’s
sworn statement that he authorized the assistant district attorney to perfect an appeal
in this case proves compliance with Article 44.01 at the time the notice was filed.
The court of appeals erred to dismiss for want of jurisdiction.
16
Last year in State v. Redus, the Court unanimously reaffirmed its decision in
Riewe that the State’s notice must contain the certification statements to invoke the
appellate court’s jurisdiction. 445 S.W.3d 151, 156 (Tex. Crim. App. 2014). The
Court went on to hold that the district attorney’s citation to the statute requiring the
certification does not satisfy the substantive voucher requirements for the
certification statements. Id. at 157.
10
PRAYER
WHEREFORE, the State of Texas prays that the Court of Criminal Appeals
grant this Petition for Discretionary Review and reverse the decision of the court of
appeals dismissing the State’s appeal.
Respectfully submitted,
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No.13803300
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
Bar I.D. No. 24031632
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512-463-1660 (Telephone)
512-463-5724 (Fax)
11
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool this
document contains 2,112 words, exclusive of the items excepted by T EX. R. A PP. P.
9.4(i)(1).
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
12
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the State’s Petition for Discretionary
Review has been served on July 15, 2015, via certified electronic service provider to:
Hon. Patrick D. Berry
101 North Trinity
Suite 200
Decatur, Texas 76234
patrick.berry@co.wise.tx.us
Hon. Barry Green
101 West Main
Decatur, Texas 76234
barry@barrysgreen.com
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
13
APPENDIX A
THE STATE OF TEXAS, STATE v. ZACHARY PALMER,
APPELLEE
NO. 02-14-00175-CR
COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT
WORTH
2015 Tex. App. LEXIS 6572
June 25, 2015, Delivered
June 25, 2015, Opinion Filed
NOTICE: PUBLISH
The Jurisdictional Statute
PRIOR HISTORY: [*1] FROM THE Article 44.01(a)(5) of the Texas Code of
271ST DISTRICT COURT OF WISE Criminal Procedure authorizes the State to
COUNTY. TRIAL COURT NO. CR17314. appeal the granting of a motion to suppress
TRIAL COURT JUDGE: HON. JOHN H. evidence. Tex. Code Crim. Proc. Ann. art.
FOSTEL. 44.01(a)(5) (West Supp. 2014). "The
prosecuting attorney may not make an appeal
under . . . this article later than the 20th day
COUNSEL: FOR STATE: GREG PRESTON after the date on which the order, ruling, or
LOWERY, DISTRICT ATTORNEY FOR sentence to be appealed is entered by the
WISE COUNTY, DECATUR, TEXAS. court." Id. art. 44.01(d). "In this article,
'prosecuting attorney' means the county
FOR APPELLEE: BARRY GREEN, SMITH attorney, district attorney, or criminal district
& GREEN, P.C., DECATUR, TEXAS. attorney who has the primary responsibility of
prosecuting cases in the court hearing the case
JUDGES: PANEL: LIVINGSTON, C.J.; and does not include an assistant prosecuting
GARDNER and WALKER, JJ. attorney." Id. art. 44.01(i).
OPINION BY: ANNE GARDNER Background [*2]
OPINION The trial court signed the order granting
Palmer's motion to suppress on April 1, 2014.
The State is attempting to appeal the trial The State, therefore, had until April 21, 2014,
court's order granting Zachary Palmer's motion to perfect its appeal. Id. art. 44.01(d).
to suppress. In one cross-point, Palmer asserts
this court lacks jurisdiction over the State's The State filed a notice of appeal on April
appeal. We agree, sustain Palmer's cross-point, 7, 2014. This document stated that it was
and dismiss the State's appeal for want of brought "by and through the Assistant District
jurisdiction. District [sic] Attorney," and the "undersigned
prosecuting attorney" is identified as the deadline were ineffective under article
assistant district attorney. The assistant district 44.01(d).
attorney signed the notice of appeal. The The State did not file a brief responding to
district attorney's name does not appear Palmer's cross-point. However, we have the
anywhere on the document. The April 21, 2014 benefit of the [*4] State's responses to Palmer's
deadline to perfect the appeal thereafter expired motion to dismiss and to Palmer's motion for
without the State filing any additional rehearing. In both of the State's responses, it
documents. stated correctly that the prosecuting attorney, as
Two weeks after the expiration of the defined in article 44.01(i) of the Texas Code of
deadline, on May 5, 2014, the State filed an Criminal Procedure, had to physically sign the
amended notice of appeal. This document was notice of appeal or personally instruct and
brought "by and through the District Attorney," authorize a subordinate to sign the specific
and the "undersigned prosecuting attorney" is notice of appeal in question. See State v.
identified as the district attorney. The district Muller, 829 S.W.2d 805, 810 (Tex. Crim. App.
attorney signed the amended notice of appeal. 1992). The State then asserted, "While the
instruction and authorization must occur prior
Thereafter, in our court, Palmer filed a
to the expiration of the filing deadline, case law
motion to dismiss on May 13, 2014. Palmer
demonstrates that proof of the authorization,
argued that the April 7, 2014 notice of appeal
[sic] may come in the form of a subsequently
was defective because it was signed and
filed affidavit to prove the appellate court was
authorized not by the district attorney but only
empowered with jurisdiction by the original
[*3] by an assistant district attorney in
Notice of Appeal." The State then cited two
violation of article 44.01(i) and that the May 5,
cases: State v. White, 261 S.W.3d 65, 67-68
2014 amended notice of appeal was late and in
(Tex. App.--Austin 2007, no pet.), and State v.
violation of article 44.01(d). The State filed a
Blankenship, 146 S.W.3d 218, 219 (Tex. Crim.
response on May 13, 2014, as well, and, along
App. 2004).
with it, an affidavit by the district attorney in
which he stated he authorized the assistant Upon further review, we hold that the April
district attorney to file the original notice of 7, 2014 notice of appeal signed by the assistant
appeal on April 7, 2014. In a per curiam order, district attorney is defective. In Muller, the
we denied the motion to dismiss on May 14, Texas Court of Criminal Appeals wrote:
2014.
Because it would have been
Undaunted, Palmer filed a motion for
difficult for the Legislature to have
rehearing on May 16, 2014. He argued the May
more clearly excluded assistant
13, 2014 affidavit did not cure the
prosecutors from its definition of
jurisdictional defect. The State filed a response
'prosecuting attorney,' we interpret
on May 20, 2014, and on May 28, 2014, in
section (i) to mean what it plainly
another per curiam order, we granted the
states on its face: a 'prosecuting
motion for rehearing but again denied Palmer's
attorney,' as used in Article 44.01,
motion to dismiss.
does not include under any
circumstance an assistant [*5]
Discussion
prosecutor or other subordinate.
In Palmer's brief, he raises one cross-point
in which he again assails this court's
jurisdiction. He contends that the assistant Muller, 829 S.W.2d at 809. The April 7, 2014
district attorney's April 7, 2014 notice of appeal notice of appeal was defective and, therefore,
was ineffective under article 44.01(i) and that ineffective to perfect the appeal because there
the district attorney's attempts to perfect the is nothing showing the district attorney
appeal after the expiration of the twenty-day authorized making the appeal. Id. at 812.
 stated that the portion of Riewe that
We further hold that the May 5, 2014
asserted a defendant could not use rule
amended notice of appeal was similarly
25.2(d) of the Texas Rules of Appellate
ineffective for two reasons. First, the State filed
Procedure to cure a jurisdictional defect
it after the expiration of the twenty-day
in a notice of appeal was dicta and
deadline. See Tex. Code Crim. Proc. Ann. art.
declined to rely on it. See Bayless v.
44.01(d). Second, noncompliance is not
State, 91 S.W.3d 801, 805 n.8 (Tex. Crim.
susceptible to correction through application of
App. 2002).
the amendment-and-cure provisions of the
Texas Rules of Appellate Procedure. Muller, Regarding the two cases the State relied on
829 S.W.2d at 812. in its responses, White and Blankenship, we
hold that they are distinguishable. We address
This leaves the State with the district
Blankenship first.
attorney's affidavit, filed in this court on May
13, 2014, in which he states he authorized the In Blankenship, the State timely filed the
assistant district attorney to file the original original notice of appeal and its amended
notice of appeal on April 7, 2014. For the notice of appeal on the same date. State v.
reasons given below, we hold it is ineffective to Blankenship, 123 S.W.3d 99, 104 n.5 (Tex.
perfect the appeal. App.--Austin 2003), rev'd, 146 S.W.3d 218
(Tex. Crim. App. 2004). The court of appeals
Substantively, we see no difference
did not question the timeliness of the original
between the district attorney's affidavit and the
[*7] and amended notices of appeal. Id. at 105.
amended notice of appeal filed in Muller after
The original notice of appeal was signed by an
the expiration of the deadline. See Muller, 829
assistant city attorney and made no mention of
S.W.2d at 812-13. As noted earlier,
the county attorney. Id. at 104 n.5. The
noncompliance is not susceptible to correction
amended notice of appeal, although still signed
through application of the amendment-and-cure
by the assistant city attorney, added one
provisions of the Texas Rules of Appellate
paragraph stating that the notice of appeal was
Procedure. Id. at 812. Ratification [*6] by the
with the consent of the county attorney. Id. at
prosecuting attorney after the expiration of the
105. After the expiration of the deadline, the
deadline is ineffective. State v. Boseman, 830
State filed affidavits in which it asserted both
S.W.2d 588, 589-90 (Tex. Crim. App. 1992).
the city and the county attorneys had
"[T]he State lost the opportunity to appeal
authorized the appeal within the deadline. Id. at
when the fifteen[-]day window of opportunity
106. The Austin Court of Appeals held that
closed without the county attorney's personal
both the recitation in the timely-filed amended
and express authorization of this specific notice
notice of appeal (that the appeal was with the
of appeal." Id. at 590. Jurisdiction cannot be
1
consent of the county attorney) and the
retroactively obtained. State v. Riewe, 13
untimely-filed affidavits were ineffective and
S.W.3d 408, 412 (Tex. Crim. App. 2000). Once2
dismissed the appeal. Id. at 105-06.
jurisdiction is lost, the courts of appeals lack
the power to invoke any rule to thereafter In contrast, the Texas Court of Criminal
obtain jurisdiction. Id. at 413. Appeals, relying strictly on the recitation of the
county attorney's consent in the timely-filed
1 The statute was amended in 2007 to amended notice of appeal, held the amended
extend the deadline from fifteen days to notice of appeal complied with article 44.01(d)
twenty days. Act of May 28, 2007, 80th and reversed the court of appeals. Blankenship,
Leg., R.S., ch. 1038, § 2, 2007 Tex. Gen. 146 S.W.3d at 220. The Texas Court of
Laws 3592 (amended 2007) (current Criminal Appeals did not rely on the untimely-
version at Tex. Code Crim. Proc. Ann. filed affidavits. Id. The State's reliance on
art. 44.01(d)). Blankenship for that proposition is, therefore,
2 The Texas Court of Appeals later misplaced.
LEXIS 9492, 2008 WL 5264735, at *1 (Tex.
Moving on to [*8] White, in that case,
App.--Austin Dec. 18, 2008), rev'd, 306 S.W.3d
when determining the timeliness of the filing,
753 (Tex. Crim. App. 2010).
the court of appeals relied on an affidavit by a
clerk to show the district clerk's office was When the case went up to the Texas Court
closed for two days due to inclement weather. of Criminal Appeals, that court never
State v. White, 248 S.W.3d 310, 312 (Tex. App.- questioned jurisdiction. State v. White, 306
-Austin 2007, no pet.). The court noted rule S.W.3d 753, 754-60 (Tex. Crim. App. 2010).
4.1(b) of the Texas Rules of Appellate Courts may sua sponte address jurisdictional
Procedure expressly authorized the use of issues because subject matter jurisdiction
affidavits when determining the timeliness of cannot be conferred by agreement of the
filings. Id. (citing Tex. R. App. P. 4.1(b)). As parties. State v. Roberts, 940 S.W.2d 655, 657
shown in a subsequent opinion by the court in (Tex. Crim. App. 1996), overruled on other
the same case, the court drew a distinction grounds by State v. Medrano, 67 S.W.3d 892,
between the making of an appeal under article 894 (Tex. Crim. App. 2002) (overruling
44.01(d) and the filing of the notice of appeal. requirement that defendant must allege
evidence was illegally obtained before the State
The deadline for filing the notice of appeal
could take an appeal under article 44.01(a)(5)
in White was January 15, 2007, but due to a
contesting the granting of a motion to
holiday and two days of inclement weather, the
suppress). Consequently, if the Austin Court of
deadline for filing was extended until January
Appeals had incorrectly asserted jurisdiction,
18, 2007, by virtue of rule 4.1 of the Texas
we would expect the Texas Court of Criminal
Rules of Appellate Procedure, and the State
[*10] Appeals to have addressed that issue.
thus successfully filed its notice of appeal
We conclude, therefore, that, at least under
timely on January 18, 2007. White, 261 S.W.3d
some circumstances, the State may use an
at 66. The problem, however, was not the
affidavit filed after the deadline to prove its
timeliness of the filing of the notice of appeal
assertion that it properly made the appeal in
but the timeliness of the making of the appeal
compliance with article 44.01(d).
under article 44.01(d).
We nevert hel es s hold White is
The district attorney signed the notice of
distinguishable. First, the court in White
appeal but did not date his signature. Id. at 67.
expressly stated that the State's notice of appeal
Although rule 4.1 extended the time to file the
was not defective on its face because neither
notice of appeal, the court held that rule 4.1 did
article 44.01 nor earlier case law required the
not extend the time during which the
prosecuting attorney to indicate the date on
prosecuting attorney had to make the appeal
which he signed the notice of appeal. White,
under article 44.01(d); consequently, [*9] the
261 S.W.3d at 67. In contrast, the notice of
court of appeals abated the appeal and
appeal in the present case is defective on its
remanded the matter to the trial court to
face because it is signed by an assistant district
determine whether the district attorney had
attorney and makes no reference to the
signed the notice of appeal, that is, made the
prosecuting attorney having authorized the
appeal as contemplated under article 44.01(d),
appeal. See Muller, 829 S.W.2d at 812. A
by January 15, 2007. Id. "The district attorney
defective notice of appeal is "not susceptible to
filed an affidavit in the district court stating
correction through application of the
that he signed the State's notice of appeal on
'amendment and cure' provisions of the Texas
January 10, 2007, and after a brief hearing, the
Rules of Appellate Procedure." See id. Article
district court so found." Id. The Austin Court of
44.01 itself provides no "amendment and cure"
Appeals asserted jurisdiction and went on to
provision. Tex. Code Crim. Proc. art. 44.01.
affirm the trial court's order on the merits
dismissing the State's indictment. State v. Second, in Muller, the Texas Court of
White, No. 03-07-00041-CR, 2008 Tex. App. Criminal Appeals wrote:
could be clarified with an affidavit after the
Whenever a question is expiration of the article 44.01(d) deadline. In
legitimately raised concerning the the present case, there is no "legitimately
prosecuting attorney's personal raised" concern in the April 7, 2014 notice of
authorization of a State's appeal, appeal. It is defective on its face. See Muller,
the State bears the burden of 829 S.W.2d at 812. Nothing in that document
proving that [*11] the appeal in hints in the least [*12] that the district attorney
question was personally, expressly authorized this specific appeal. If there is no
and specifically authorized by the compliance within the twenty-day window, the
prosecuting attorney. Thus, the window is thereafter closed. See Boseman, 830
appellate record must clearly S.W.2d at 590-91; Muller, 829 S.W.2d at 813.
reflect the prosecuting attorney's At the expiration of the twenty-day deadline,
personal authorization of the the State had only a defective notice of appeal
specific notice of appeal filed in a on file, which perfected nothing. See State v.
given case. Without a signature or Shelton, 830 S.W.2d 605, 606 (Tex. Crim. App.
other written expressed 1992) (holding signature stamp of county
authorization, as reflected in the attorney authorizing the appeal was ineffective
appellate record, there would be no to vest court of appeals with jurisdiction).
guarantee that the only person
permitted by statute to make an Conclusion
appeal on behalf of the State We sustain Palmer's cross-point and
actually participated in the process. dismiss the State's appeal for want of
Evidence of a general delegation jurisdiction.
of authority to an assistant does not
qualify under the statute. /s/ Anne Gardner
ANNE GARDNER
Muller, 829 S.W.2d at 810 n.6. In White the JUSTICE
district attorney signed the notice of appeal, PANEL: LIVINGSTON, C.J.; GARDNER
and the State filed the notice of appeal timely. and WALKER, JJ.
White, 261 S.W.3d at 66-67. The ambiguity--
the "legitimately raised" concern--was whether PUBLISH
the district attorney made the appeal within the DELIVERED: June 25, 2015
article 44.01(d) deadline, which, unlike the
filing requirements, could not be extended.
White had a "legitimately raised" concern that
APPENDIX B