



cr017-90.mdj                                                        



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

 


NO. 3-90-017-CR


THE STATE OF TEXAS,

	APPELLANT

vs.



RANDY TIM PITTMAN,

	APPELLEE

 

FROM THE COUNTY COURT AT LAW OF COMAL COUNTY,

NO. 89-754, HONORABLE RONALD J. PRICHARD, JUDGE PRESIDING
 


	The State seeks to appeal the trial judge's order dismissing a criminal complaint
charging the appellee, Randy Tim Pittman, with driving while intoxicated.  Tex. Code Crim.
Proc. Ann. art. 44.01(a)(1) (Supp. 1992).  Without deciding the merits of the State's complaints,
we will dismiss the appeal for want of jurisdiction.
	On June 10, 1989, in Comal County, Texas, Pittman was arrested and charged with
driving while intoxicated.  The arresting officer drove him to the Comal County Sheriff's office
where a videotape was made of the officer's interview with Pittman.  The videotape was lost. 
When the State could not produce the videotape, the trial court ordered the cause dismissed.  The
State sought to appeal the trial court's order of dismissal by filing a notice of appeal that recites,
in part:


On this 13th day of December, 1989 comes the State of Texas and files this notice
of appeal. . . .  State's attorney swears herein that such appeal is not for purposes
of delay. . . .

					Respectfully submitted
					/s/ KIMBEL L. BROWN
					Assistant County Attorney


	Pittman filed a plea to the jurisdiction and motion to dismiss the appeal on February
20, 1990, arguing that this Court does not have jurisdiction to entertain the appeal because article
44.01(d) and (i) do not authorize an assistant county attorney to give notice of appeal for the State. 
He also argued that, because the time for perfecting an appeal expired on December 20, 1989, the
county attorney could not correct the defect by filing an amended notice.  Nevertheless, thereafter
the State filed in the trial court an amended notice of appeal, signed by the county attorney, stating
as follows:


On this 21st day of February, 1990, comes the State of Texas and files this notice
of appeal by and through the county attorney. . . .  State's attorney swears herein
that such appeal is not for purposes of delay. . . .

					Respectfully submitted
					/s/ NATHAN RHEINLANDER
					County Attorney


The county clerk filed a supplemental transcript containing the amended notice in the Court of
Appeals. (1)  This Court submitted and overruled Pittman's plea and motion.
	In his brief on appeal, Pittman again questions this Court's jurisdiction to consider
the State's appeal.  He argues that the State has failed to comply with the provisions of article
44.01, and that, therefore, this Court has no jurisdiction and the appeal must be dismissed.  We
agree.
	Until November 1987, the State had no right of appeal in a criminal cause.  In that
month, the voters amended article V, section 26 of the Texas Constitution to read as follows: 
"The State is entitled to appeal in criminal cases, as authorized by general law."
Article 44.01 of the Texas Code of Criminal Procedure was amended to implement this
constitutional change. Article 44.01 provides in relevant part:


(a)	The state is entitled to appeal an order of a court in a criminal case if the
order:

	(1)	dismisses an indictment, information, or complaint;
	. . .

(d)	The prosecuting attorney may not make an appeal under Subsection (a) or
(b) of this article later than the 15th day after the date on which the order,
ruling or sentence to be appealed is entered by the court.
	. . .

(i)	In this article "prosecuting attorney" means the county attorney, district
attorney, or criminal district attorney who has the primary responsibility of
prosecuting cases in the court hearing the case and does not include an
assistant prosecuting attorney.


(Emphasis added).
	We must decide whether the notice of appeal filed December 14, 1989, meets the
requirements of article 44.01.  If not, then we must consider whether the amended notice of
appeal remedies any defect and complies with the requirements of article 44.01.  We conclude that
the answer to both questions is "no."  During the pendency of this appeal, the Texas Court of
Criminal Appeals has resolved the matter.  State v. Muller, No. 160-91 (Tex. Crim. App., April
1, 1992).
	The State's authority to appeal in a criminal case is governed by article 44.01.  
State v. Demaret, 764 S.W.2d 857, 858 (Tex. App. 1989, no pet.).  Article 44.01(a) permits the
State to appeal certain rulings of the trial court; article 44.01(d) provides that the prosecuting
attorney must do so within fifteen days; and article 44.01(i) expressly states that the term
"prosecuting attorney" does not include an assistant.  The statute limits the State's power to appeal
by restricting that power to a few specifically-designated elected officials primarily responsible
for prosecuting criminal cases.  Muller, No. 160-91 at 5-9.  Assistants to those officials may not
act on behalf of the State to bring an appeal.  Id. at 9. (2)
	Because the assistant county attorney lacked authority to bring an appeal on behalf
of the State, we must consider whether the amended notice of appeal corrected the error.  We hold
that it did not.  See Muller, No. 160-91 at 12. 
	Texas R. App. P. Ann. 83 (Pamph. 1992) provides that no appeal shall be
"dismissed for defects or irregularities, in appellate procedure, either of form or substance,
without allowing a reasonable time to correct or amend such defects . . . ."   However, the Court
of Criminal Appeals held in Muller that "a notice of appeal by an assistant prosecuting attorney
is not a defect of appellate procedure; it is a failure to abide by the substantive statutory
requirements of Tex. Code Crim. Proc. art. 44.01."  Muller, No. 160-91 at 12 (emphasis in
original).  The rules of appellate procedure do not enlarge the substantive rights of the litigants. 
Demaret, 764 S.W.2d at 858.  Thus, Rule 83 cannot extend the State's fifteen-day deadline for
filing an appeal imposed by art. 44.01(d).
	Because an assistant prosecuting attorney is not authorized to make an appeal on
behalf of the State, the timely-filed notice of appeal in this cause did not perfect the appeal.  The
amended notice of appeal was filed outside the fifteen-day time limit and did not in itself perfect
the appeal.  Demaret, 764 S.W.2d 857.  We must, therefore, hold that this appeal was not timely
perfected and that we are without jurisdiction.  See Muller, No. 160-91 at 14.
	For the reasons stated, the appeal is dismissed for lack of jurisdiction.


  
					Marilyn Aboussie, Justice
[Before Chief Justice Carroll, Justices Aboussie and Jones]
Appeal Dismissed
Filed:   April 22, 1992
[Publish]
1.        Even assuming an extension of time could have been granted, the State did not
request leave of this Court to file an amended notice of appeal and did not request an
extension of time reasonably explaining a need for an extension.
2.        The decision in Muller thwarts the State's reliance on our decision in State v. Barker,
780 S.W.2d 927 (Tex. App. 1989, pet. ref'd).  In Barker we were not called upon to decide
whether subsections (d) and (i), read together, require that any State appeal must be taken only
by and through the county, district or criminal district attorney, as distinct from an assistant to
one of these officials.  Instead, in Barker we assumed that the law imposed such a
requirement, but we merely held that a notice of appeal reciting that the State was acting "by
and through the Travis County Attorney" was sufficient to comply with article 44.01(i) even
though the notice of appeal had been signed by an assistant on behalf of the county attorney. 
See also Muller, No. 160-91 at 9-10 and fn. 6 (the prosecuting attorney must personally
supervise and authorize the appeals to be undertaken by his office on behalf of the State; when
challenged, the State will bear the burden of proof to show that the prosecuting attorney
expressly authorized the specific appeal).

