                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-15-00394-CR
                                        No. 04-15-00395-CR

                                       The STATE of Texas,
                                            Appellant

                                                v.
                                              James
                                        James Ray JUNEK,
                                             Appellee

                         From the County Court at Law, Kerr County, Texas
                            Trial Court Nos. CR14-0145 & CR14-0146
                             Honorable Susan Harris, Judge Presiding

PER CURIAM

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Jason Pulliam, Justice

Delivered and Filed: November 4, 2015

APPEAL DISMISSED FOR WANT OF JURISDICTION

           The State of Texas appeals the trial court’s order granting Appellee James Ray Junek’s

motion to suppress. The trial court signed the order on May 6, 2015. On May 14, 2015, the State

timely filed a notice of appeal signed by Joseph Soane, Assistant Kerr County Attorney. On

September 28, 2015, Junek filed a motion to dismiss the State’s appeal for want of jurisdiction

based upon the State’s failure to comply with Texas Code of Criminal Procedure article 44.01(i).

The State did not file a response.
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        In the motion to dismiss, Junek contends the notice of appeal filed by the State was invalid

because Article 44.01 requires that a State’s notice of appeal be signed by the prosecuting attorney

or in some way manifest some indication the prosecuting attorney intended to or authorized the

appeal. Junek contends the State’s noncompliance with the provisions of Article 44.01 deprives

this court of jurisdiction.

        Texas Code of Criminal Procedure art. 44.01 states “[t]he prosecuting attorney may not

make an appeal … later than the 15th day after the date on which the order, ruling, or sentence to

be appealed is entered by the court.” TEX. CODE CRIM. PROC. ANN. art. 44.01(d) (West Supp.

2014). “Prosecuting attorney” is defined as “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.” Id. art. 44.01(i).

        In State v. Muller, the Texas Court of Criminal Appeals determined that Article 44.01(d)

authorizes only the prosecuting attorney (in this case the elected Kerr County Attorney) “to make

an appeal by personally authorizing—in some fashion—the specific notice of appeal in question”

prior to the expiration of the deadline for perfecting an appeal. See State v. Muller, 829 S.W.2d

805, 810 (Tex. Crim. App. 1992) (internal quotes omitted). The court stated in Muller:

        We do not suggest that Article 44.01 necessarily requires that a State’s notice of
        appeal must, in all cases, reflect the personal signature of the prosecuting attorney.
        However, the plain meaning of the literal text of Article 44.01(d) requires the
        prosecuting attorney to “make an appeal” by personally authorizing—in some
        fashion—the specific notice of appeal in question. More specifically, to comply
        with the statute, he must either physically sign the notice of appeal or personally
        instruct and authorize a subordinate to sign the specific notice of appeal in question.
        [Footnote omitted]. Because of the jurisdictional limitations of Article 44.01 ... we
        further read the statute to require this personal authorization to occur prior to the
        expiration of the fifteen day window of appeal.

Id.




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       When an appellee raises an issue concerning the prosecuting attorney’s personal

authorization of the State’s appeal, the State bears the burden to prove “the appeal was personally,

expressly and specifically authorized by the prosecuting attorney.” Muller, 829 S.W.2d at 810 n.6.

To satisfy this burden, the appellate record must clearly reflect the prosecuting attorney’s personal

authorization of the specific notice of appeal filed in a given case. Id. “Evidence of a general

delegation of authority to an assistant does not qualify under the statute.” Id.

       Thus, Article 44.01 requires the elected “prosecuting attorney”, not an assistant attorney,

to make the State’s notice of appeal within the prescribed fifteen-day time period, either through

the physical act of signing the notice or by personally and expressly authorizing an assistant to file

a specific notice of appeal on his behalf. See Muller, 829 S.W.2d at 807-12. A prosecuting

attorney’s general delegation of authority to an assistant is insufficient, and the use of a “signature

stamp, without more” does not comply with the statute. See id. (general delegation of authority

does not qualify under the statute); see also State v. Shelton, 830 S.W.2d 605, 606 (Tex. Crim.

App. 1992) (use of a “signature stamp, without more” does not comply with the statute).

       In this case, the record reveals the notice of appeal was filed by and signed by Joseph

Soane, Assistant Kerr County Attorney. The notice of appeal states, “NOW COMES THE STATE

OF TEXAS, by and through its prosecuting attorney Assistant Kerr County Attorney, Joseph

Soane….” However, following Muller, this statement is a statement of a general delegation of

authority, rather than a case-specific, express authorization. Nothing in the notice of appeal or in

the record reveals any authorization from the prosecuting attorney of Kerr County for Mr. Soane

to file the notice of appeal in this specific case. The State has provided no response nor shown the

proper authorization under Muller.

       The time to file an amended notice of appeal has expired. Thus, the State has failed to

satisfy its burden of proof to show the appeal was “personally, expressly and specifically
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authorized by the prosecuting attorney.” For this reason, this court must conclude the notice of

appeal was defective for failure to comply with Article 44.01, and this court does not have

jurisdiction over this appeal.

       Appellee’s motion to dismiss is granted. These appeals are dismissed. All pending

motions are denied as moot.

                                                PER CURIAM

DO NOT PUBLISH




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