Palmer, Zachary

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