State v. Kenneth Roberts ( 2000 )

99-00768 State of Texas v Roberts.wpd No. 04-99-00768-CR The STATE of Texas, Appellant v. Kenneth ROBERTS, Appellee From the County Court, Uvalde County, Texas Trial Court No. 99-24969 Honorable William R. Mitchell, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 26, 2000

DISMISSED FOR WANT OF JURISDICTION

The State attempts to appeal from a directed verdict of not guilty entered by the trial court. Because no statutory ground for appeal of such a judgment exists, the appeal is dismissed for want of jurisdiction.

By statute, the right of appeal afforded to the State is limited. See Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2000). Specifically, article 44.01 of the Code of Criminal Procedure provides that the State may appeal orders that:

(1) dismiss an indictment, information or complaint or any portion of an indictment, information or complaint;

(2) arrest or modify a judgment;

(3) grant a new trial;

(4) sustain a claim of former jeopardy; or

(5) grant a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case.

Tex. Code Crim. Proc. Ann. art. 44.01(a) (Vernon 1986). The State may also appeal a sentence on the ground that it is illegal and may appeal a ruling on a question of law if the defendant is convicted and appeals the judgment. Id. at art. 44.01(b), (c).

On its face, the judgment in the instant case does not fall within one of the above-listed categories from which the State is permitted to appeal. Therefore, this court ordered the State to show cause in writing why this appeal should not be dismissed for lack of jurisdiction. In response to our order, the State argues that the trial court's judgment is a dismissal of the information within the meaning of article 44.01 because the judgment effectively terminated the prosecution in favor of the appellee. See Moreno v. State, 807 S.W.2d 327, 334 (Tex. Crim. App. 1991) (holding that trial court "dismisses" indictment whenever it issues ruling which effectively terminates State's prosecution under indictment in favor of defendant). The State characterizes the judgment in this way because, in its opinion, the trial court's decision was based upon the fact that there was a variance between the information and the underlying complaint as to the date when the charged offense occurred. The State thus contends that because the trial court's decision concerned the information the judgment qualifies an order of dismissal from which it may appeal. See Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2000). We disagree.

While the trial court's decision "terminated" the State's prosecution, it is not a dismissal of the information within the meaning of article 44.01. See Moreno, 807 S.W.2d at 332, 334. A dismissal of an information within the meaning of article 44.01 is a pre-trial matter. See id. at 334. Rather the trial court's judgment is, in effect, an acquittal of the appellee, which, regardless of how egregiously wrong, cannot be reviewed. Moreno, 807 S.W.2d at 332 n.6; see State v. Moshene, 936 S.W.2d 732, 736 (Tex. App.-Dallas 1996, no pet.). The record in the instant case reveals that after the State closed its case-in-chief, counsel for appellee moved for a directed verdict, arguing that there was a variance between the information and the State's proof. The information alleged that the offense occurred on July 24, 1999. At trial, the State's proof showed that the alleged offense occurred on June 24, 1999, the date recited in the underlying complaint. The trial court agreed that the State failed in its proof and orally granted appellee's motion. A written judgment entitled, "Directed Verdict of Not Guilty," was later signed and entered by the trial court.

In State v. Moshene, the Dallas Court of Appeals considered a similar jurisdictional issue when the State sought to appeal from an order entitled, "Order Dismissing Case," which was entered after a trial on the merits. Moshene, 936 S.W.2d at 733. There, like here, the State argued that article 44.01 gave it the ability to appeal because the trial court's order concerned the indictment and the order effectively terminated the prosecution in favor of the defendant. See id. at 734. The court rejected this argument based on the timing of events. See id. (citing Moreno, 807 S.W.2d at 332 (prosecution is terminated whenever trial court's order forces alteration of indictment before trial )). There, like here, the trial court's order or judgment occurred not before trial, but after the State had an opportunity to put on all of its evidence. See id. Based on the timing of events, the court concluded that the trial court's order was, in effect, an acquittal from which the State may not appeal. Id. We reach the same conclusion, and dismiss the appeal for want of jurisdiction.

PER CURIAM

DO NOT PUBLISH