      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00487-CR



                                   The State of Texas, Appellant

                                                   v.

                               Stephanie Renae Krueger, Appellee


                FROM COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
           NO. 2C05-07653, HONORABLE JOHN MISCHTAIN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The State seeks to appeal an order by the trial court granting Appellee Stephanie

Renae Krueger’s motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5)

(West Supp. 2008). We dismiss the appeal for noncompliance with article 44.01.

                In an appeal from an order granting a motion to suppress, the prosecuting attorney

must certify that the appeal is not taken for purposes of delay and that the evidence in question is of

substantial importance to the State. Id. The State in this case did not make the required certification.

Therefore, the State did not properly perfect its appeal within the applicable twenty day deadline.

Id. at 44.01(d); Tex. R. App. P. 25.2(b); see also State v. Riewe, 13 S.W.3d 408, 411 (Tex. Crim.

App. 2000). Failure to comply with article 44.01(a)(5) is a substantive defect which deprives the

court of appeals of jurisdiction. Riewe, 13 S.W.3d at 411. The State’s failure to comply with the

substantive statutory requirements governing the exercise of its limited right of appeal is not
susceptible to correction by application of the “amendment and cure” provisions of the appellate

rules. State v. Muller, 829 S.W.2d 805, 812 (Tex. Crim. App. 1992); see also Bayless v. State,

91 S.W.3d 801, 804 (Tex. Crim. App. 2002) (discussing Riewe and Muller). Accordingly, the appeal

is dismissed.



                                            __________________________________________

                                            Diane M. Henson

Before Justices Patterson, Waldrop and Henson

Dismissed for Want of Jurisdiction

Filed: May 15, 2009

Do Not Publish




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