Pfeiffer, Lavern A. ( 2012 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1234-11
LAVERN A. PFEIFFER, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
RED RIVER COUNTY
C OCHRAN, J., delivered the opinion of the Court in which K ELLER, P.J. and
P RICE, W OMACK, J OHNSON, K EASLER, H ERVEY and A LCALA, JJ., joined. M EYERS,
J., filed a dissenting opinion.
OPINION
After the trial judge denied his motion to suppress methamphetamine found during
a traffic stop, appellant pled guilty to its possession pursuant to a plea bargain. He then
appealed the trial judge’s suppression ruling. The court of appeals reversed, finding that the
officer lacked reasonable suspicion to continue to detain appellant until a drug dog was
Pfeiffer Page 2
brought to the scene.1 The court also declined to address what it called a “cross-appeal”
because the State failed to file its own notice of appeal.2 We granted the State’s petition for
review to resolve a split in the courts of appeals on whether the State must file a separate
notice of appeal when the defendant appeals his conviction and the State wishes to appeal
a ruling of law under Article 44.01(c) of the Texas Code of Criminal Procedure.3 We hold
that the State need not file its own notice of appeal when it raises a cross-point concerning
a ruling on a question of law under Article 44.01(c).4
I.
At the motion to suppress hearing, Trooper Kuhelengel testified that he stopped appellant
because his “dooley” truck5 did not have mud flaps. The trooper noted that appellant seemed
1
Pfeiffer v. State, No. 06-11-00001-CR, 2011 WL 1734065, at *1-4 (Tex. App.—Texarkana May
4, 2011) (not designated for publication).
2
Id. at *4 n.1 (“In its brief, the State raises a cross-issue complaining that the trial court erred by
excluding Kuhelengel’s testimony regarding what Perkins told him and that the excluded
testimony provided Kuhelengel with reasonable suspicion. However, the State is required to file
a notice of appeal in order to perfect a cross-appeal under Article 44.01 of the Texas Code of
Criminal Procedure.”).
3
Specifically, we granted the following ground for review:
This Court should resolve the conflict among the Courts of Appeals concerning
whether the State must file a notice of appeal under 44.01(c) of the Texas Code of
Criminal Procedure, and if the State must not file a notice of appeal, remand this
cause to the Court of Appeals to address the merits of the State’s cross-issue.
4
Article 44.01(c) reads as follows: “The state is entitled to appeal a ruling on a question of law if
the defendant is convicted in the case and appeals the judgment.”
5
“A ‘dooley’ or ‘dually’ is a truck (or some of the [D]odge [S]printer and [F]reightliner vans)
with a heavy duty rear end and 4 wheels on the rear axle alone. Dually’s are better for towing
and can take a heavier load compared to regular rear ends.”
http://wiki.answers.com/Q/What_is_a_dually_truck#ixzz1m6QEdP9X
Pfeiffer Page 3
nervous and did not give definitive answers to his questions. Trooper Kuhelengel checked
appellant’s license through dispatch and found no outstanding warrants. While waiting for
that reply from dispatch, Trooper Kuhelengel received a phone call from Investigator Mark
Perkins of Red River County. When the State began to offer evidence of what Investigator
Perkins told him, defense counsel objected.
Q: All right, and at some point in that time when you were doing that, were you
contacted by someone else?
A: I received a call very shortly after I submitted his name and date of birth, I believe it
was, and I received a call from Investigator Mark Perkins of Red River County.
Q: And what did Investigator Perkins advise you?
A: Mr. Perkins advised me that . . .
[Defense Counsel]: Object, Your Honor. Hearsay.
Q: Based on what Mr. Perkins advised you, did you have some concern?
[Defense Counsel]: Object, Your Honor. That’s hearsay. Back door into it.
Q: Not for the truth. As to what his actions are.
[Court]: As to what action he took, the objection will be overruled as the exception.
After the trial judge overruled appellant’s objection, Trooper Kuhelengel summarized
the facts that raised his suspicions that appellant might have drugs in his truck: (1) appellant
did not give “definite answers on the questions that I ask[ed]”; (2) appellant’s hands shook
visibly when he talked; (3) appellant’s voice was “rattling with nervousness”; (4) “and of
Pfeiffer Page 4
course the information that I received by telephone.”6 The trooper asked appellant if he
could search his truck. Appellant said,“No.” Trooper Kuhelengel then called the sheriff’s
office to see if a canine unit was available. Deputy Hamrick and his dog arrived about ten
minutes later. The dog “hit” on the truck and began “serious barking, kind of a frenzy right
there at the passenger side of that truck[.]” Based on the dog’s “hit,” the officers began to
search the truck. Deputy Hamrick found a pill bottle that contained 7.13 grams of
methamphetamine under the front floorboard.
After hearing the evidence, the trial court denied the motion to suppress. Appellant
then pled guilty to possession of methamphetamine and was sentenced to ten years’
probation.
On appeal, the Texarkana Court of Appeals reversed the trial court’s order and found
that Trooper Kuhelengel “lacked reasonable suspicion to continue detaining Pfeiffer while
waiting for a canine unit” because his “request for a canine unit was clearly unrelated to the
reason for the stop and exceeded the scope of the initial traffic investigation.” 7 The court of
appeals noted the call from Investigator Mark Perkins, who “‘relayed the information’ that
6
Trooper Kuhelengel videotaped the traffic stop, and the State played the tape during the
suppression hearing. The prosecutor stopped the tape when Trooper Kuhelengel was heard
talking to Investigator Perkins on the phone and asked if “[t]his is when he relayed the
information to you that gave you the reasonable suspicion that drugs may be in the vehicle?” The
defense again objected, but was overruled.
7
Pfeiffer, 2011 WL 1734065 at *1, *3.
Pfeiffer Page 5
gave him (Kuhelengel) ‘reasonable suspicion that drugs may be in [Pfeiffer’s] vehicle.’” 8
But it declined to address the State’s cross-issue “complaining that the trial court erred by
excluding Kuhelengel’s testimony regarding what Perkins told him” since “the State is
required to file a notice of appeal in order to perfect a cross-appeal under Article 44.01 of the
Texas Code of Criminal Procedure.”9 Because the State failed to file a notice of appeal, the
court found that it “lack[ed] jurisdiction to consider any cross-appeal raised by the State.” 10
II.
We granted review to resolve a split in the courts of appeals concerning their
jurisdiction to address the State’s “cross-appeal” or “cross-issue.” On one side, the Fourth
and Fourteenth Courts of Appeals have held that the State is not required to file a notice of
appeal when the defendant appeals his conviction and the State wishes to raise an issue on
a ruling of law made by the trial court.11 The Third, Fifth, and Ninth Courts of Appeals,
however, have held that the State must file a notice of appeal, even under Article 44.01(c).12
8
Id. at *4 n.1.
9
Id.
10
Id.
11
Mizell v. State, 70 S.W.3d 156, 163 (Tex. App.—San Antonio 2001) (notice of appeal not
required under Article 44.01(c) of the Texas Code of Criminal Procedure), aff’d on other
grounds,119 S.W.3d 804 (Tex. Crim. App. 2003); McClinton v. State, 38 S.W.3d 747, 750-51
(Tex. App.—Houston [14th Dist.] 2001), pet. dism’d, 121 S.W.3d 768 (Tex. Crim. App. 2003)
(per curiam).
12
Ganesan v. State, 45 S.W.3d 197, 203-04 (Tex. App.—Austin 2001, pet. ref’d) (“The State did
not file a cross-appeal and the propriety of the district court’s ruling is not before us,” citing art.
44.01(c)); Strong v. State, 87 S.W.3d 206, 211–12 (Tex. App.—Dallas 2002, pet. ref’d) (same);
Pfeiffer Page 6
A. Jurisdiction of the Courts of Appeals
An appellate court’s jurisdiction is invoked by the timely filing of a notice of appeal.13
Proper notice of appeal vests the appellate courts of this State with a broad scope of review
and revision over a criminal case.14 “Once jurisdiction of an appellate court is invoked,
exercise of its reviewing functions is limited only by its own discretion or a valid restrictive
statute.”15 For example, appellate courts may review unassigned error—a claim that was
preserved in the trial court but was not raised by either party on appeal.16 In Carter, we
stated, “There is a fundamental proposition pertaining to appellate functions of the Judicial
Department: A constitutional grant of appellate jurisdiction treats a right of appeal in
criminal cases ‘as a remedy to revise the whole case upon the law and facts, as exhibited in
the record[.]’”17 Thus, when a defendant appeals his conviction, the courts of appeals have
Malley v. State, 9 S.W.3d 925, 927 (Tex. App.—Beaumont 2000, pet. ref’d ) (same).
13
Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996); see TEX . R. APP . P. 25.2(b).
14
Carter v. State, 656 S.W.2d 468, 469 (Tex. Crim. App. 1983) (“After jurisdiction attaches to a
particular cause, a broad scope of review and revision has been asserted by appellate courts of
this State—one that is still recognized, acknowledged and confirmed by the Legislature.”); see
also Mizell v. State, 119 S.W.3d 804, 807 (Tex. Crim. App. 2003) (quoting Carter).
15
Carter, 656 S.W.2d at 469.
16
Id. at 468. An appellate court raising on its own a novel point of error not briefed by the parties
should first afford the parties an opportunity to brief the issue, although “[w]e recognize that
many, if not most, of the types of error that would prompt sua sponte appellate attention need not
be assigned because the error involved constitutes an obvious violation of established rules.”
Pena v. State, 191 S.W.3d 133, 136-38 (Tex. Crim. App. 2006).
17
Carter, 656 S.W.2d at 468 (quoting The Republic v. Smith, Dallam 407 (Tex. 1841)).
Pfeiffer Page 7
the jurisdiction to address any error in that case. This was true before the State obtained a
limited right to appeal in 1987, and it is true today.
More recently, in Mizell v. State,18 we held that, because the defendant appealed his
conviction and the appellate court therefore had jurisdiction over the case, the State was not
required to file a notice of appeal before it could point out appellant’s illegal sentence to the
court of appeals.19 The State could have independently filed a notice of appeal concerning
the defendant’s illegal sentence under Article 44.01(b) if the defendant did not himself
appeal his conviction. But because the defendant did appeal his conviction, the entire case
was subject to review, and the State could raise its claim of an illegal sentence without filing
any notice of appeal.20 In sum, a proper notice of appeal in a criminal case confers
jurisdiction upon a court of appeals, and that court then has the authority to address any issue
or claim pertinent to the judgment or order appealed from unless otherwise restricted by
statute.
B. The State’s Right to Appeal
Until 1987, the State had no independent right to appeal from trial court rulings, either
pre-trial or post-trial. In 1987, the State obtained a limited right to appeal certain trial-court
orders and rulings when the Texas Legislature enacted Article 44.01 of the Texas Code of
18
119 S.W.3d 804 (Tex. Crim. App. 2003).
19
Id. at 807.
20
Id. at 806 (“There has never been anything in Texas law that prevented any court with
jurisdiction over a criminal case from noticing and correcting an illegal sentence.” ).
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Criminal Procedure.21 The State’s right to appeal was limited to the specific circumstances
set forth in Article 44.01 and only as provided by the procedure set out in the statute.22
First, Article 44.01(a) enumerates the various types of “orders” that the State may
appeal. Appealable “orders” under paragraph (a) include various pre-trial orders and some
post-trial orders.23 Second, Article 44.01(b) provides that the State may appeal an illegal
sentence.24 Third, Article 44.01(c) allows the State to appeal a ruling on a question of law
if the defendant is convicted and he appeals the judgment. Under paragraph (c), the State has
no independent right of appeal—only the defendant can put the ball into play by pursuing an
appeal. His notice of appeal confers jurisdiction upon the court of appeals to address any
issue or claim pertinent to the judgment or order that the defendant is appealing.
21
See Acts 1987, 70th Leg., R.S., ch. 382 §1.
22
Mizell, 119 S.W.3d at 806-07; State v. Muller, 829 S.W.2d 805, 812 (Tex. Crim. App. 1992)
(stating that article 44.01 sets out both the substantive limits of the State’s right to appeal and the
proper procedures for doing so).
23
Specifically, Article 44.01(a) allows the State to appeal if the order:
(1) dismisses an indictment, information, or complaint or any portion of an indictment,
information, or complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy;
(5) grants 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 purposes of delay and that the evidence, confession, or
admission is of substantial importance in the case; or
(6) is issued under Chapter 64.
24
Article 44.01(b) provides, “The state is entitled to appeal a sentence in a case on the ground
that the sentence is illegal.”
Pfeiffer Page 9
For paragraphs (a) and (b), the State must file a notice of appeal no later than the
twentieth day after the court enters an order, ruling, or sentence.25 Furthermore, the State is
entitled to a stay in the proceedings for appeals under paragraphs (a) and (b),26 as well as
expedited proceedings for those appeals.27 However, no such requirements apply when the
defendant appeals because he has already filed notice of appeal and has thus invoked the
broad jurisdiction of an appellate court.28 There is also no “stay” in the trial court
proceedings or expedited appeal under paragraph (c) because, when the defendant appeals
his conviction, the trial court proceedings have already been completed and the appeal will
be accorded its normal priority.
Neither party in this case–and no prior decision by any court of appeals– has cited any
legislative history from the 1987 enactment of the State’s right to appeal bill that would
suggest that the Texas Legislature sub silentio intended that the State be required to file a
notice of appeal in the “cross-appeal” situation. Nor have the parties or any courts of appeals
suggested precisely when the State should file such a notice because it has no independent
right to appeal in this situation.
25
TEX . CODE CRIM . PROC. art. 44.01(d).
26
Id. art. 44.01(e).
27
Id. art. 44.01(f).
28
The State cannot, under Article 44.01(c), appeal any legal ruling that is not encompassed within
the “judgment” that the defendant is appealing.
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C. Purpose of Article 44.01(c)
Article 44.01(c) permits the State to “cross-appeal” a separate ruling of law—though
not fact—by the trial judge when the defendant is convicted and appeals his judgment. A
“cross-appeal” under 44.01(c) differs from the State’s responsive arguments that relate
directly to the defendant’s appellate claims. Responsive issues or points simply rebut the
defendant’s claim and assert that the trial judge’s order or judgment should be upheld. A
“cross-appeal” asserts that, once the court of appeals has dealt with the defendant’s claim of
“X” error, it should, under some circumstances, also address a separate legal ruling by the
trial judge—ruling “Y”—that the State claims is erroneous.
The State’s right to cross-appeal is limited, however, as noted in our prior decision in
Armstrong v. State.29 An appellate court will not address the State’s cross-appeal issue “if
the State would not be able to implement a decision in its favor on that issue.” 30 Thus,
generally speaking, “[i]f the defendant is granted no relief and no retrial will therefore be
held, the State will not be able to benefit from a favorable decision on its cross-points of
error.” 31
29
805 S.W.2d 791, 793-94 (Tex. Crim. App. 1991) (holding that State could raise a “cross
appeal” on the legal question of whether the defendant’s prior conviction used for enhancement
was “void” as the trial judge had ruled, but concluding that the State was not entitled to have that
issue resolved because the defendant did not prevail on appeal; because the defendant’s
conviction was affirmed on appeal, double-jeopardy principles would preclude the State from
retrying the defendant as an habitual criminal in the same case).
30
GEORGE E. DIX & JOHN M. SCHMOLESKY , 43B TEXAS PRACTICE SERIES: CRIMINAL PRACTICE
AND PROCEDURE § 56:121 at 438 (3d ed. 2011).
31
Id.
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Our decision in Armstrong sets forth a bright-line rule that appellate courts should not
address the State’s cross-points in such cases32 because this Court and the courts of appeals
“are without authority to render advisory opinions.”33 But if the State is “likely to benefit
from resolution of its cross-points in its favor,” then the issues raised in the State’s cross-
points are “functionally in dispute” and a decision on them is neither advisory nor beyond the
jurisdiction or authority of the appellate courts.34
Usually, courts of appeals may address the State’s cross-appeal point only if the
defendant prevails on appeal and the case will be remanded for further proceedings.
However, in some circumstances, the State might obtain relief even when the defendant does
not prevail.35 A cross-appeal concerning an illegal sentence, as in Mizell, is one example,36
32
For example, appellate courts will not address a cross-appeal in which the State merely
requests a directive as to language or reasoning of the lower court that does not impact the
ultimate decision. An appellate court should, however, address the State’s cross-appeal if it is
likely to benefit from the resolution of its issue even if the defendant does not obtain relief.
33
Armstrong, 805 S.W.2d at 794.
34
DIX & SCHMOLESKY , supra note 30 at 439.
35
See e.g., Moffatt v. State, 930 S.W.2d 823 (Tex. App.—Corpus Christi 1996, no pet.)
(rejecting defendant’s sole issue on appeal and holding that the State could cross-appeal the trial
court’s erroneous legal ruling on a motion to elect, remanding for trial on remaining counts);
State v. Webb, 980 S.W.2d 924, 927 (Tex. App.—Fort Worth 1998) (court of appeals addressed
State’s cross-appeal concerning trial judge’s ruling on enhancement allegations because double
jeopardy would not preclude State from seeking a more severe penalty on remand, but rejected
cross-appeal on the merits), aff’d on other grounds, 12 S.W.3d 808 (Tex. Crim. App. 2000).
36
Mizell v. State, 119 S.W.3d 804, 805-07 (Tex. Crim. App. 2003). The trial court’s failure to
order consecutive sentences when a statute requires the sentences to be served consecutively
might be another. See, e.g., Bells v. State, No. 06-10-00155-CR, 2011 WL 646938, *3-4 (Tex.
App.—Texarkana Feb. 23, 2011, no pet.) (not designated for publication) (noting “a potential
irregularity in the trial court’s judgment” as it appeared that defendant’s sentences were required
Pfeiffer Page 12
although the State could independently appeal an illegal sentence even if the defendant did
not appeal his conviction.
D. Must the State file a notice of appeal before it may raise a cross-appeal issue in
the defendant’s appeal?
Paragraph (d) of Article 44.01 explicitly requires the State to file a notice of appeal
within 20 days after the trial court’s order, ruling, or sentence if the State is appealing under
either Article 44.01(a) or (b). But there is no such statutory requirement when the State
raises a cross-appeal under Article 44.01 (c). We cannot assume that the Legislature was so
inattentive that it simply “forgot” about paragraph (c) when it set out the procedures for the
State to file a notice of appeal. And there is no provision for when the State would be
required to file such a notice when its right to raise a cross-appeal issue depends entirely
upon the defendant timely filing a notice of appeal. Of course the State could not raise cross-
appeal issues until after the defendant had appealed because the State has no independent
right to appeal under paragraph (c).
What would be the purpose of the State’s filing of a notice of appeal after the
defendant has already done so if the court of appeals already had jurisdiction over the case?
The courts of appeals have differed on the answer to this question. The Fourth and
Fourteenth Courts of Appeals have held that the State is not required to file a notice of appeal
when raising a cross-point after the defendant has already appealed. In Mizell, the Fourth
to be served consecutively, but because neither party raised the issue, court declined to address
it). Another example might be when the trial court improperly deletes a deadly weapon finding
made by the jury.
Pfeiffer Page 13
Court of Appeals held that the State was not required to file a notice of appeal when
appealing a ruling on a question of law under Article 44.01(c) because the notice-of-appeal
provision in Article 44.01(d) is explicitly restricted to paragraphs (a) and (b).37 The court
further noted that Rule 25.2 of the Texas Rules of Appellate Procedure, unlike Rule 25.1,
does not expressly state “who must file” a notice of appeal in a criminal case.38
Similarly, the Fourteenth Court of Appeals, in McClinton v. State,39 noted that the
State sought review of the trial court’s reformation of the sentence after the defendant
appealed his conviction.40 That court addressed the merits of the State’s issue, reasoning
that, although “[u]nder the civil appellate rules, this court would not be authorized to grant
the State relief because the State did not file a notice of appeal. . . . The criminal analog has
no such provision.”41 Because there was no statutory requirement that the State file a notice
of appeal when the defendant had already invoked the jurisdiction of the appellate court, the
court did not judicially create such a requirement.
37
Mizell v. State, 70 S.W.3d 156, 163 (Tex. App.–San Antonio 2001) (“While article 44.01(d)
and Rule 26.2(b) set forth the time in which the State must file a notice of appeal when it is the
appellant, neither article 44.01 nor the Rules of Appellate Procedure regarding criminal appeals
requires the State to file a written notice of appeal ‘to appeal a ruling on a question of law [when]
the defendant is convicted in the case and appeals the judgment.’”), aff’d on other grounds, 119
S.W.3d 804 (Tex. Crim. App. 2003).
38
Id.
38 S.W.3d 747 (Tex. App.–Houston [14th Dist.] 2001), pet. dism’d, 121 S.W.3d 768 (Tex.
39
Crim. App. 2003) (per curiam).
40
Id. at 750.
41
Id. at 750-51.
 Pfeiffer Page 14
Conversely, the Third, Fifth, and Ninth Courts of Appeals have held that the State
must file a notice of appeal to raise a “cross-appeal” under Article 44.01(c). The Third Court
of Appeals, in Ganesan v. State,42 declined to consider excluded testimony offered by the
State after the defendant appealed his conviction because the State did not file a notice of
appeal.43 In Strong v. State,44 the Fifth Court of Appeals looked to Appellate Rule 25.2(a),45
and held that “[n]o language in either article 44.01 or the appellate rules exempts the State
from the notice of appeal requirement under of rule 25.2(a) when it is appealing under article
44.01(c).”46 Therefore, it reasoned, the Texas Legislature’s “failure to impose a time limit
in which an appeal must be filed under article 44.01(c) does not support a presumption that
no notice of appeal is required at all.”47 In Malley v. State,48 the Beaumont Court of Appeals
simply asserted that the State did not file a notice of appeal “as it must in order to perfect an
appeal.”49 None of these cases addressed the fact that the court of appeals already had
jurisdiction over the entire case because the defendant had been convicted and had appealed
42
45 S.W.3d 197 (Tex. App.–Austin 2001, pet. ref’d).
43
Id. at 203-04.
44
87 S.W.3d 206 (Tex. App.–Dallas 2002, pet. ref’d).
45
TEX . R. APP . P. 25.2(a) states, in relevant part, “[i]n a criminal case, appeal is perfected by
timely filing a notice of appeal.”
46
Strong, 87 S.W.3d at 212-13.
47
Id.
48
9 S.W.3d 925 (Tex. App.–Beaumont 2000, pet. ref’d).
49
Id. at 927.
 Pfeiffer Page 15
the judgment.
As Professors Dix and Schmolesky have noted, the Texas Rules of Appellate
Procedure themselves suggest that the State’s cross-appeal is not subject to the requirement
of perfection by notice of appeal.50 Rule of Appellate Procedure 26.2 “purports—without
qualification—to require the filing of a notice of appeal by the State now within 20 days of
the action to be appealed, although the statutory 20-day limit on State appeals is carefully
phrased so as not to apply to cross-appeals.”51 Professors Dix and Schmolesky offer an
illustrative hypothetical to explain why the State should not be required to file a notice of
appeal to raise a “cross-appeal” issue when the defendant has been convicted and appeals:
A convicted defendant does not have to give notice of appeal until 30 days after conviction.52
Rule 26.2, therefore, “could not be fairly applied to the State in [a] cross-appeal situation;
this would permit a defendant to frustrate the State’s ability [to] cross-appeal by delaying the
defendant’s notice of appeal until after the time for filing notice of cross-appeal had
expired.” 53
In civil cases, under Rule 25.1(c) of the Texas Rules of Appellate Procedure, any party
“who seeks to alter the trial court’s judgment or other appealable order must file a notice of
50
D IX & S CHMOLESKY, supra note 30, § 55:36 at 99.
51
Id. (footnotes omitted).
52
TEX . R. APP . P. 26.2(a)(1). If the defendant files a motion for new trial, he may file his notice
of appeal within 90 days after sentencing. TEX . R. APP . P. 26.2(a)(2).
53
DIX & SCHMOLESKY , supra note 30, § 55.36 at 99.
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appeal” and may do so within 14 days after the opposing party files notice of appeal. There
is, however, no counterpart to Rule 25.1(c) for criminal cases. And there is no reference in
either Article 44.01 or Rule 25.2 to this civil rule. The State does not seek to alter the
judgment of conviction or appealable order when the defendant is convicted and appeals,54
so that provision would not be applicable, even by implication, to “cross-appeals” by the
State. Usually a “cross-appeal” under Article 44.01(c) seeks contingent relief, not
independent relief. In those instances, the State’s position is this: Affirm the trial court’s
judgment, but if you are going to reverse the trial court’s judgment, then (and only then) you
should address this separate legal ruling because it will arise again when the case returns to
the trial court. There will generally be no need to address the State’s “cross-appeal” if the
defendant loses his appeal.55 Instead, the appellate court should simply say that it does not
need to reach the issue because the State could not implement any ruling in its favor, and the
courts of appeals do not render advisory opinions on a moot point.
In sum, we conclude that the State is not required to file a notice of appeal when it
raises a “cross-appeal” under Article 44.01(c) because
(1) there is no statutory provision for filing a notice of appeal for “cross-appeals”
under Article 44.01(c);
54
The State might, however, raise an issue concerning the propriety of the sentence or of other
collateral orders, but the court of appeals has always had the authority to address these matters
under its broad scope of review when it has jurisdiction over a defendant’s appeal. See Carter v.
State, 656 S.W.2d 468, 469-70 (Tex. Crim. App. 1983).
55
See, however, the text accompanying note 32 supra for a discussion of when appellate courts
should address the State’s cross-appeal even when the defendant does not obtain relief.
Pfeiffer Page 17
(2) there is no legislative history cited by any court or party suggesting that the
Legislature, in implementing the State’s right to appeal in 1987, intended for
the State to file a notice of appeal for these “cross-appeals”;
(3) a court of appeals already has broad jurisdiction over the entire case by virtue
of the convicted defendant’s notice of appeal;
(4) there is no persuasive rationale for requiring such notice of appeal when the
State’s right to have the court of appeals address its issue on a trial court’s
ruling of law is contingent upon the defendant obtaining relief from his
conviction; and
(5) there is no statutory provision that provides an appropriate time for the State
to file a notice of appeal under Article 44.01(c). The State cannot file a notice
of appeal within the 20 day limit specified for State-initiated appeals under
Article 44.01(a) & (b) because it has no independent right to appeal under
paragraph (c), and the defendant has 30 days in which to file his notice of
appeal. Tex. R. App. P. 25.1 applies only to civil cases, and, in any event, it
would not apply to a “cross-appeal” by the State because the State is not
seeking to alter the judgment or other appealable order.
Thus, once a convicted defendant files a timely notice of appeal, the appellate courts have
jurisdiction to address any pertinent “cross-appeal” or “rebuttal” issues raised by the State.
Procedurally, “cross-appeals” and “rebuttal” issues are treated in the same manner.
III.
In the present case, the court of appeals did not address the State’s response to
appellant’s claim that Trooper Kuhelengel lacked reasonable suspicion to detain appellant
until the canine unit arrived. The purported “cross-appeal” was merely part of the State’s
argument on direct appeal as to why the court of appeals should have considered Trooper
Kuhelengel’s testimony regarding his call from Investigator Perkins. After its short
discussion concerning the admissibility of hearsay to establish reasonable suspicion or
Pfeiffer Page 18
probable cause, the State concluded, “This court should so hold, if remanding.”56 The court
of appeals erroneously held that it did not have jurisdiction to consider the State’s
argument.57
We therefore reverse the court of appeals and remand the case to that court for further
proceedings not inconsistent with this opinion.
Delivered: April 18, 2012
Publish
56
State’s Brief on Direct Appeal at 25.
57
Pfeiffer, 2011 WL 1734065 at *4 n.1 (“Here, the State failed to file a notice of appeal;
therefore, we lack jurisdiction to consider any cross-appeal raised by the State”).