                            NUMBER 13-07-000352-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                             Appellant,

                                             v.

ERNESTO MORENO,                                                                  Appellee.


   On appeal from the 214th District Court of Nueces County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
            Memorandum Opinion by Chief Justice Valdez

       The State attempts to appeal from a directed verdict of not guilty entered by the trial

court as to appellee, Ernesto Moreno. Because no statutory ground for appeal of such a

judgment exists, the appeal is dismissed for want of jurisdiction.

                                      I. BACKGROUND

       Appellee pled not guilty to the offense of unlawful possession of cocaine in an

amount of four grams or more, but less than 200 grams. See TEX . HEALTH & SAFETY CODE
ANN . § 481.115 (Vernon 2003). Trial before a jury commenced on May 21, 2007. After

presenting the testimony of three witnesses, the State called Nueces County Police Officer

Cox. Officer Cox, however, failed to appear. When the trial court asked the State to call

another witness, the prosecutor informed the court that it did not have any additional

witnesses to present. Appellee then moved for an “instructed verdict” premised on the “fact

that the State failed to meet any elements of the case.” Although the State repeatedly

informed the trial court that they “expected [Officer Cox] to [arrive] any second,” the trial

court granted appellee’s motion and dismissed the jury. An order granting appellee’s

“motion for a directed verdict” was signed by the trial judge on May 24, 2007. This appeal

ensued.

                                        II. JURISDICTION

       By statute, the right of appeal afforded to the State is limited. See TEX . CODE. CRIM .

PROC . ANN . art. 44.01 (Vernon Supp. 2007). Specifically, article 44.01(a) 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.

Id. art. 44.01(a). The State may also appeal a sentence on the ground that it is illegal and

may appeal a ruling on question of law if the defendant is convicted and appeals the

judgment. See id. art. 44.01(b), (c).

       On its face, the judgment in the instant case does not fall within one of the above-

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listed categories from which the State is permitted to appeal. The State argues, however,

that because the trial court granted the directed verdict before it rested its case, the

judgment of acquittal is instead an improper dismissal of the State’s indictment and

therefore appealable under art 4.01(a)(1). The State contends that “until [it] rested its case

or otherwise showed that it was unable or unwilling to proceed with additional evidence,

the trial court had no authority to grant a directed verdict or otherwise pass upon the

culpability of the defendant.”

       To support its appealability argument, the State cites State v. Moreno, 807 S.W.2d

327 (Tex. Crim. App. 1991). In Moreno, the court of criminal appeals held that the State

has the power to appeal from any trial court order concerning an indictment or information,

and the court of appeals has jurisdiction to address the merits of an appeal from such an

order, whenever the order effectively terminates the prosecution in favor of the defendant.

Id.

       Article 44.01(a)(1), however, deals with the dismissal of charging instruments.

Taylor v. State, 886 S.W.2d 262, 266 (Tex. Crim. App. 1994) (stating that 44.01(a)(1) does

not embrace either an order of “acquittal” or an order dismissing a “prosecution” based on

insufficient evidence). A motion to set aside, dismiss, or quash an indictment must be

presented to the trial court prior to an announcement by that party that it is ready for trial.

See Neal v. State, 150 S.W.3d 169, 176 (Tex. Crim. App. 2004) (stating that this rule

serves to prevent unnecessary trials and deters the interruption of a trial on the merits for

any objection relating to the charge’s institution and presentation); cf. State v. Stanley, 201

S.W.3d 754, 757 (Tex. Crim. App. 2006) (holding that the State could appeal order

dismissing charging instrument even when a pretrial motion to dismiss was carried through


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close of evidence).

       Here, appellee did not move to dismiss the indictment against him, and the trial

court’s order did not dismiss the indictment, improperly or otherwise. The parties had

announced ready, the jury had been sworn, and three witnesses had finished testifying

before the trial court granted appellee’s directed verdict. Appellee moved for a directed

verdict, not on the basis of an objection relating to presentation of the indictment, but on

the “fact that the State failed to meet any elements of the case.”

       A judgment of acquittal is not a ground upon which the State may appeal. See TEX .

CODE CRIM . PROC . ANN art. 44.01(a); Taylor, 886 S.W.2d at 265-66; Moreno, 807 S.W.2d

at 332 n.6 (stating that it is well settled that a verdict of acquittal cannot be reviewed

regardless of how egregiously wrong the verdict may be). Because the State did not

present any other grounds upon which its appeal can be based, we conclude that we lack

jurisdiction over this matter.

                                      III. CONCLUSION

       The order granting appellee’s directed verdict is not an appealable order under

article 44.01(a)(1) of the code of criminal procedure. See TEX . CODE CRIM . PROC . ANN . art.

44.01(a)(1). Therefore, we are without jurisdiction to consider the State’s appeal. We

dismiss this appeal for want of jurisdiction.



                                    ROGELIO VALDEZ
                                    Chief Justice
Publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed
this the 1st day of May, 2008.


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