                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00135-CR



           THE STATE OF TEXAS, Appellant

                            V.

       JOSE GUADALUPE ZERMENO, Appellee



          On Appeal from the 6th District Court
                Lamar County, Texas
                Trial Court No. 25148




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                 MEMORANDUM OPINION
        The State of Texas attempts to appeal from the trial court’s order granting Jose Guadalupe

Zermeno’s motion to suppress. Zermeno has filed a motion to dismiss the State’s appeal for lack of

jurisdiction. Finding we have no jurisdiction over the instant appeal, we dismiss the appeal.

        Rule 25.2(a) (1) of the Texas Rules of Appellate Procedure provides that the “State is

entitled to appeal a court’s order in a criminal case as provided by Code of Criminal Procedure

44.01.” TEX. R. APP. P. 25.2(a) (1). Rule 25.2(b) provides that an “appeal is perfected by timely

filing a sufficient notice of appeal.” TEX. R. APP. P. 25.2(b). A notice of appeal “is sufficient if

it shows the party’s desire to appeal from the judgment or other appealable order, and, if the

State is the appellant, the notice complies with Code of Criminal Procedure Article 44.01.” TEX.

R. APP. P. 25.2(c) (2). Article 44.01 of the Code of Criminal Procedure provides, in pertinent

part, that the

        state is entitled to appeal an order of a court in a criminal case if the order . . .
        grants a motion to suppress evidence, a confession, or an admission, if jeopardy
        has not attached in the case and if the prosecuting attorney certifies to the trial
        court 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.

TEX. CODE CRIM. PROC. ANN. art. 44.01(a) (5) (West Supp. 2013). Although the State’s notice

of appeal was timely filed, it failed to include the certification required by Article 44.01(a) (5).

The notice states, in pertinent part:

        Pursuant to TRAP Rule 25.2(a) (1) and Tex. Code Crim. Proc. Art. 44.01(a) the
        State of Texas is permitted to appeal an order that “. . . . . . (5) “grants [sic] a
        motion to suppress evidence, a confession or an admission, if jeopardy has not
        attached in this case and if the prosecuting attorney certifies to the trial court that
        the appeal is not take [sic] for the purpose of delay and that the evidence,
        confession, or admission is of substantial importance in the case”.

                                                  2
This paragraph is followed by a prayer that the notice be entered of record and is signed by Gary

Young, the Lamar County District Attorney.

       The State contends this Court has jurisdiction of this appeal because the notice of appeal

includes the appropriate certification. We disagree. The notice includes a quotation of Article

44.01(a) (5) but fails to include a certification from the prosecuting attorney that the appeal is not

taken for the purpose of delay and that the evidence is of substantial importance to the case. A

recitation of the pertinent Code provision does not amount to a certification, as required by

Article 44.01(a) (5).

       Alternatively, the State contends that its certification is evidenced in the record. 1 We

reject this contention. First, there is no authority to support the proposition that prosecutorial

comments or representations to the trial court on the record can fulfill the statutory certification

requirements. Second, even assuming the existence of such authority, the comments recited in

the record do not comport with the requirements of the statute.




1
The following exchange is quoted from the hearing on the motion to suppress evidence:

                MR. YOUNG: Judge, for future purposes, obviously we’re going to appeal this --

                THE COURT: Sure.

               MR. YOUNG: -- as are -- It’s going to be appealed across the State either from the
       defendant or from the State.

                THE COURT: Right.

                MR. YOUNG: Ultimately the Court of Criminal Appeals is going to answer this
       question. . . .

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        The State next contends that, even if it failed to comply with the statutory certification

requirements, this Court nevertheless has jurisdiction over this appeal because the trial court’s

order amounted to a partial dismissal of the indictment. As such, Article 44.01(a) (1) applies.

Article 44.01(a) (1) provides, “The state is entitled to appeal an order of a court in a criminal

case if the order . . . dismisses an indictment, information, or complaint or any portion of an

indictment, information, or complaint.” TEX. CODE CRIM. PROC. ANN. art. 44.01(a) (1) (West

Supp. 2013). The Zermeno indictment alleges,

        Jose Guadalupe Zermeno on or about January 27, 2013 in the County of Lamar
        and State of Texas, did then and there operate a motor vehicle in a public place
        while the said defendant was intoxicated. . . . prior to the commission of the
        aforesaid offense by the said defendant, on September 5, 2012, in the Criminal
        County Court # 8 of Dallas County, Texas, . . . the said defendant was convicted
        of an offense relating to the operating of a motor vehicle while intoxicated, and on
        September 21, 2011, in the County Court of Lamar County, Texas, . . . said
        defendant was convicted of an offense relating to the operating of a motor vehicle
        while intoxicated, and said convictions became final prior to the commission of
        the aforesaid offense.

The trial court’s order states that the following matters shall be suppressed from introduction at

trial of this cause:

        Any and all blood evidence drawn from Jose Guadalupe Zermeno seized by law
        enforcement officers or others in connection with the detention and arrest of
        Zermeno in this case or in connection with the investigation of this case, including
        but not limited to blood drawn from Zermeno, and any testimony by the law
        enforcement or any other law enforcement officers or others concerning such
        evidence.

The State maintains the trial court’s order “was essentially a partial dismissal of the indictments.

. . it effectively foreclosed the State from proceeding with the indictments under which it wished

to proceed.” In support of this proposition, the State relies on State v. Moreno, 807 S.W.2d 327,

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333 n.7 (Tex. Crim. App. 1991). In that case, the State appealed after the trial court quashed the

indictment. Because the trial court’s order effectively terminated the proceedings, the State was

permitted to appeal. Here, the suppression order does not terminate the proceedings against

Zermeno, who can be tried for the charged offense, albeit without evidence of blood-alcohol

content.

       The State also relies on State v. Rosseau, 398 S.W.3d 769, 777–78 (Tex. App.—San

Antonio 2011), aff’d, 396 S.W.3d 550 (Tex. Crim. App. 2013). In that case, the court permitted

the State’s appeal to proceed under Article 44.01(a) (1) when the trial court declared the bigamy

statute to be facially unconstitutional. Rosseau, 396 S.W.3d at 554–55. The defendant was

indicted for twenty-nine counts of sexual assault of a child. Each count contained an allegation

based on the bigamy provision, which, if proved, would elevate each sexual assault count from a

second degree felony to a first degree felony. The motion to quash was granted in part, striking

the bigamy provision from each of the twenty-nine sexual assault counts. The State had the right

to appeal the trial court’s order quashing a portion of the indictment, and, thus, the appellate

court had jurisdiction to entertain the State’s appeal under Article 44.01(a) (1).

       Rosseau involved striking portions of the indictment. The defendant could then only be

charged with second degree felonies. Here, the trial court’s order did not affect the indictment.

Regardless of the order, this case can proceed to trial on the present indictment. Because the

suppression order is not tantamount to a partial dismissal of the indictment, Article 44.01(a) (1)

does not apply.




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         The State’s next argument in favor of appellate court jurisdiction rests with a concurrence

in Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009), in which Justice Cochran wrote

that “[a]ppellate courts are in at least as good a position as trial courts to review the purely legal

question of whether a particular penal statute is facially unconstitutional.” Id. at 438. The State

urges this Court to accept this case to review the purely legal question involving the

constitutionality of the implied consent and mandatory blood-draw statute(s), as that argument

was raised in the trial court. This argument misses the mark, as it lacks any basis in the Texas

Rules of Appellate Procedure or the Texas Code of Criminal Procedure addressing State’s

appeals. 2

         Finally, the State relies on its counter-motion to amend its notice of appeal pursuant to

Rule 25.2(f) of the Texas Rules of Civil Procedure. This Rule provides,

         (f) Amending the Notice or Certification. An amended notice of appeal or trial
         court’s certification of the defendant’s right of appeal correcting a defect or
         omission in an earlier filed notice or certification, including a defect in the
         notification of the defendant’s appellate rights, may be filed in the appellate court
         in accordance with Rule 37.1, or at any time before the appealing party’s brief is
         filed if the court of appeals has not used Rule 37.1. The amended notice or
         certification is subject to being struck for cause on the motion of any party
         affected by the amended notice or certification. After the appealing party’s brief is
         filed, the notice or certification may be amended only on leave of the appellate
         court and on such terms as the court may prescribe.

TEX. R. APP. P. 25.2(f). The certification required by Article 44.01(a) (5) is necessary to confer

jurisdiction over the appeal in the appellate court, see State v. Riewe, 13 S.W.3d 408, 411 (Tex.

Crim. App. 2000), and it must be filed within the twenty-day period the State has to file its notice


2
 The State further contends this Court has jurisdiction to review this case either pursuant to our civil jurisdiction, as
a matter of equity, or because the issue of jurisdiction has been waived. These arguments lack merit.
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of appeal. See Johnson v. State, 175 S.W.3d 766, 767 (Tex. Crim. App. 2005); Riewe, 13

S.W.3d at 413; see also TEX. R. APP. P. 26.2(b) (notice of appeal by State must be filed within

twenty days after date trial court enters order to be appealed).

       Riewe resolves the issue of whether the notice may be amended at this late date to include

a proper certification. In that case, the State filed a notice of appeal which did not satisfy the

certification requirements in Article 44.01. Riewe, 13 S.W.3d at 409. After the time for filing

the notice expired, the State filed a request to amend its notice of appeal and an amended notice

containing the necessary certification. The Dallas Court of Appeals denied the request and

dismissed the State’s appeal for want of jurisdiction.

       The Court of Criminal Appeals held that the State did not invoke the jurisdiction of the

court of appeals by its original notice of appeal because the notice did not contain two

statutorily-required certifications—(1) that the appeal was not taken for delay and (2) that the

evidence suppressed by the trial court was of “substantial importance” in the case. Id. at 411–13.

The court further held that, when the original notice of appeal fails to confer jurisdiction, an

amended notice of appeal containing the previously-omitted certifications cannot retroactively

confer jurisdiction. Id. at 413. Specifically, the court states,

       It is true that Rule 25.2(d) allows an amendment to a notice of appeal. But when
       the Legislature granted this Court rule-making authority, it expressly provided
       that the rules could not abridge, enlarge or modify the substantive rights of a
       litigant. And our case law prevents a court of appeals from using an appellate rule
       to create jurisdiction where none exists. It does not matter which appellate rule
       the court of appeals attempts to use, be it former Rule 83, former Rule 2(b), or
       current Rule 25.2(d). The point is that, once jurisdiction is lost, the court of
       appeals lacks the power to invoke any rule to thereafter obtain jurisdiction. Even
       a claimed deprivation of constitutional rights cannot confer jurisdiction upon a
       court where none exists, anymore than parties can by agreement confer
                                                  7
       jurisdiction upon a court. So any amendments made pursuant to Rule 25.2(d)
       cannot be jurisdictional amendments.

Id. at 413–14 (emphasis added) (footnotes omitted).

       When a court of appeals permits the State to amend its notice of appeal after the time-

frame set forth in the Rule, it impermissibly uses the Rules to “create a jurisdictional-enlarging

procedure neither expressly contained nor implicated by the literal text of the statute.” State v.

Muller, 829 S.W.2d 805, 813 (Tex. Crim. App. 1992); see Bayless v. State, 91 S.W.3d 801, 804–

05 (Tex. Crim. App. 2002).

       According to Riewe, only nonjurisdictional amendments are permitted under Rule 25.2.

The amendments the State must make to its notice of appeal are jurisdictional amendments.

Because the State’s original notice of appeal did not initially confer jurisdiction on this Court,

this Court cannot now accept an amended notice to obtain jurisdiction retroactively. See Riewe,

13 S.W.3d at 413–14.

       Accordingly, we dismiss this appeal for want of jurisdiction.




                                             Jack Carter
                                             Justice



Date Submitted:        November 26, 2013
Date Decided:          November 27, 2013

Do Not Publish


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