            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0960-10

                                   THE STATE OF TEXAS

                                                 v.

                               RANDALL CHUPIK, Appellee

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE THIRD COURT OF APPEALS
                             TRAVIS COUNTY

       J OHNSON, J., filed a concurring opinion.

                            CONCURRING OPINION

       The issue presented by the State Prosecuting Attorney (SPA) is the extent of the state’s right

to an interlocutory appeal when a trial court has granted a defendant’s motion to suppress evidence.

In this case, the SPA explicitly limits its definition of the issue “to the narrow circumstances [in

which] the evidence is suppressed because it was ‘illegally obtained,’ and does not include the

exclusion of evidence for other reasons, such as a violation of the rules of evidence. In the latter

instance, specification of the evidence would usually be necessary to the reviewing court’s
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determination of any trial-court error in the admissibility ruling.”1 The SPA argues in its brief2 that

available case law deals with the standards and protocols when a defendant appeals the denial of a

motion to suppress evidence. See, e.g., Gonzales v. State, 966 S.W.2d 521 (Tex. Crim. App. 1998).

This is a mirror image of the circumstances of the case before us. The state also asserts that this

appears to be a case of first impression, saying that it is unaware of any case law from this Court that

has addressed the present issue. However, Johnson v. State, 871 S.W.2d 744 (Tex. Crim. App.

1994), is directly on point.

          Johnson was indicted for capital murder. He moved to suppress evidence, and the trial court

granted his motion. The state appealed, and the court of appeals reversed the suppression ruling.

Both sides filed petitions for discretionary review. In one of three grounds, Johnson challenged the

sufficiency of the state’s petition,3 asking whether Article 44.01(a)(5) permitted “the defendant

awaiting trial [to] challenge that certification in the trial court and on appeal.” Id. at 748.

          This Court held that

          [t]he plain language of the literal text of Art. 44.01(a)(5) provides for the State to
          appeal a suppression order if jeopardy has not attached and the prosecuting attorney
          makes the . . . requisite certification to the trial court. . . . Appellee simply seeks to
          challenge the verity of the State’s certification. Art. 44.01 does not include a
          provision for making such a challenge. The plain language of Art. 44.01(a)(5) simply
          requires the certification rather than any showing of the underlying basis for such.

Id. at 749.

          1
              SPA’s Brief, p.4 n.2.

          2
              In a record hearing before the trial court, Mr. Chupik declined to file a brief or to be represented on
appeal.
          3

          Does Art. 44.01(a)(5), V.A.C.C.P. grant absolute discretion to the prosecutor to appeal any pretrial
          ruling suppressing evidence, a confession or admission simply by certifying that it is of substantial
          importance in the case, as the court held below, or may the defendant awaiting trial challenge that
          certification in the trial court and on appeal?
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         The state’s burden is defined, as the Johnson Court’s opinion states, by the plain language

of the statute. The statute’s plain, unambiguous language authorizes an interlocutory appeal by the

state based solely on the state’s certification 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.”4 Under both

Johnson and the statute, the verity of that certification may not be challenged nor may the state be

required to place into the record the evidence that was suppressed or to submit to cross-examination

on the issue of substantial importance.

         With these comments, I join the opinion of the court.



Filed: June 15, 2011
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           It may be that, if later events reveal a lack of good faith in the filing of the required certification, the
prosecuting attorney who filed it could be subject to discipline.
