












COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH





NO. 2-06-171-CR





THE STATE OF TEXAS	APPELLANT



V.



MATTHEW NEAL COX	APPELLEE



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FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY



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OPINION



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The State is attempting to appeal the trial court’s ruling granting Matthew Neal Cox’s motion to suppress.  The primary issue we must decide is whether a docket sheet entry reflecting the trial court’s oral ruling on Cox’s motion to suppress constitutes a signed written order for purposes of appeal.  Because we conclude that it does not, we dismiss the appeal for want of jurisdiction.

On April 4, 2006, after a hearing on Cox’s motion to suppress, the trial court orally granted the motion and made a handwritten entry on the docket sheet reciting “motion to suppress granted,” followed by writing that appears to be initials but which the State concedes is the judge’s signature.  Over the State’s objection, however, the trial court declined to sign a written order memorializing its ruling.  Thereafter, on May 22, 2006, the State filed its notice of appeal. 

After receiving the State’s notice of appeal, we notified the State of our concern that we lacked jurisdiction over the appeal because there is no appealable written order.  In response, the State agreed that the docket sheet entry is not a written order from which an appeal may be taken, but requested the court “to clarify whether the current record contains a written order or not.”

In his reply to the State’s response, Cox moved to dismiss the appeal on the ground that the docket sheet entry constitutes an appealable order and that we have no jurisdiction over this appeal because the State’s appeal from the “order” is untimely.  Cox subsequently filed Appellee’s Motion to Suspend Rules of Appellate Procedure and Remand to Trial Court for Hearing to Determine Existence of Written Order,
(footnote: 1) in which he requested that we abate the case and remand it for an evidentiary hearing by the trial court to clarify whether the trial court intended the docket sheet entry to serve as an order for purposes of appeal. 

Article 44.01 of the code of criminal procedure provides the State authority to appeal an order of a court in a criminal case if the order grants a motion to suppress.
(footnote: 2)  The appeal must be filed within fifteen days after the date on which the order, ruling, or sentence to be appealed is “entered by the court.”
(footnote: 3)  Appellate rule 26.2(b) contains the same limitation.
(footnote: 4)  Thus, the question before us is whether the language “entered by the court” encompasses a docket sheet entry.  We hold that it does not.

In 
State v. Rosenbaum
,
(footnote: 5) the court of criminal appeals addressed the meaning of the phrase “entered by the court” contained in article 44.01(d).  Reading article 44.01 as a whole, the court in 
Rosenbaum
 interpreted the phrase “entered by the court” as meaning the signing of an order by the trial judge, reasoning that the signing of a written order memorializes the trial court’s intent to authenticate the action taken.
(footnote: 6)  Thus, the court concluded the time for filing the State’s notice of appeal under article 44.01 runs from the date the trial judge signs a written order.
(footnote: 7)  The court reaffirmed this holding in two subsequent decisions.
(footnote: 8)  Therefore, under 
Rosenbaum
 and its progeny a State’s appeal under article 44.01 must be from a signed written order.
(footnote: 9)
	It is well settled that a docket sheet entry is not an order.
(footnote: 10) We have previously held that a docket sheet entry does not constitute a written order for the purpose of appealing the denial of a motion to dismiss and an application for writ of habeas corpus.
(footnote: 11)  Similarly, our sister court in Dallas has held that a docket sheet entry does not constitute a written order for the purpose of appealing a ruling sustaining a double jeopardy claim under article 44.01.
(footnote: 12)  Likewise, we now hold that a docket sheet entry does not constitute a written order for the purpose of appealing the granting of a motion to suppress under article 44.01.

Because the docket sheet entry in the case before this court does not satisfy the requirements of a signed written order for the purpose of the State’s appeal under article 44.01, we conclude that there is no order in the record from which the State may appeal.  Appellate rule 2 prohibits us from suspending the requirements of article 44.01 for the purpose of abating and remanding the case to allow the trial court another opportunity to enter an appealable order.
(footnote: 13)  Accordingly, we deny Cox’s motion to suspend the rules of appellate procedure and dismiss the appeal for want of jurisdiction.
(footnote: 14) 







JOHN CAYCE

CHIEF JUSTICE



EN BANC

DAUPHINOT, J., filed a dissenting opinion in which HOLMAN, J. joined.

PUBLISH

DELIVERED:  August 23, 2007	
 

FOOTNOTES
1:See
 
Tex. R. App. P.
 2 (“On a party’s motion . . . the appellate court may . . . suspend a rule’s operation in a particular case and order a different procedure[.]”).


2:Tex. Code Crim. Proc. Ann.
 art. 44.01(a)(5) (Vernon 2006).  


3:Id.
 art. 44.01(d).  


4:Tex. R. App. P. 26.2
(b) (“The notice of appeal must be filed within 15 days after the day the trial court enters the order, ruling, or sentence to be appealed.”).


5:818 S.W.2d 398 (Tex. Crim. App. 1991).


6:Id.
 at 402.


7:Id.
 at 402-03.  


8:Rodarte v. State
, 860 S.W.2d 108, 110 (Tex. Crim. App. 1993); 
State ex rel. Sutton v. Bage
, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992) (orig. proceeding).


9:We recognize that at the time 
Rosenbaum
 was decided, former appellate rule 41(b)(1), the predecessor to rule 26.2(b), provided that the deadline for filing the State’s notice of appeal ran from the date an appealable order was 
signed
 by the trial judge.  
See
 
Tex. R. App. P.
 41(b)(1),707–708 S.W.2d (Tex. Cases) LIII (1986, amended 1997).  The 
Rosenbaum
 court concluded that article 44.01 and former rule 41(b)(1) did not conflict because “entered by the court” encompassed the signing of the order.  
Rosenbaum
, 818 S.W.2d at 402. Although rule 26.2(b) now tracks article 44.01 and provides that the State’s appellate deadline runs from the date the trial court “enters the order,” no substantive changes between former rule 41(b)(1) and current rule 26.2(b) were intended.  
See
 
Tex. R. App. P.
 26.2, 948–949 S.W.2d (Tex. Cases) XCVII-XCVIII (1997) cmt. (“This is former rule 41. . . .  Nonsubstantive changes are made in the rule for criminal cases.”).  Therefore, the change in wording between former rule 41(b)(1) and rule 26.2(b) is not significant to our decision.  
See
 
State v. Shaw,
 4 S.W.3d 875, 877 (Tex. App.—Dallas 1999, no pet.) (holding same).


10:See State v. Garza, 
931 S.W.2d 560, 561-62 (Tex. Crim. App. 1996); 
Shaw
, 4 S.W.3d at 878; 
Ex parte
 
Wiley
, 949 S.W.2d 3, 4 (Tex. App.—Fort Worth 1996, no pet.).


11:Wiley
, 949 S.W.2d at 4.


12:Shaw
, 4 S.W.3d at 878; 
see
 
Tex. Code Crim. Proc. Ann.
 art. 44.01(a)(4). 


13:See
 
Tex. R. App. P.
 2 (“[A] court must not construe this rule to suspend any provision of the Code of Criminal Procedure[.]”).


14:See Ex parte Lewis,
 196 S.W.3d 404, 405 (Tex. App.—Fort Worth 2006, no pet.); 
Wiley,
 949 S.W.2d at 4 (both dismissing appeals for want of jurisdiction where no appealable order had been signed).



We do not address the question of whether the trial court abused its discretion by refusing to enter a signed written order granting the motion to suppress because we have no jurisdiction to address that issue.  If the State believes the trial court’s refusal to issue a written order is improper, that issue may be addressed by mandamus.  
In re Hancock,
 212 S.W.3d 922, 926 (Tex. App.—Fort Worth 2007, orig. proceeding) (granting mandamus relief in a criminal proceeding); 
cf. In re Prudential Ins. Co. of Am.,
 148 S.W.3d 124, 134-36 (Tex. 2004) (orig. proceeding) (holding that mandamus relief is proper where the trial court’s clear abuse of discretion deprived the relator of an adequate appellate remedy).


