

 



NUMBER 13-07-000352-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS 


CORPUS CHRISTI - EDINBURG 

 

THE STATE OF TEXAS, 	Appellant,

v.
 
ERNESTO MORENO, 						           Appellee.
                                                                                                                      
On appeal from the 214th District Court of Nueces County, Texas.


MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Chief Justice Valdez


 The State attempts to appeal from a directed verdict of not guilty entered by the trial
court as to appellee, Ernesto Moreno.  Because no statutory ground for appeal of such a
judgment exists, the appeal is dismissed for want of jurisdiction.  
I.  Background
	Appellee pled not guilty to the offense of unlawful possession of cocaine in an
amount of four grams or more, but less than 200 grams.  See Tex. Health & Safety Code
Ann. § 481.115 (Vernon 2003).  Trial before a jury commenced on May 21, 2007.  After
presenting the testimony of three witnesses, the State called Nueces County Police Officer
Cox.  Officer Cox, however, failed to appear.  When the trial court asked the State to call
another witness, the prosecutor informed the court that it did not have any additional
witnesses to present.  Appellee then moved for an "instructed verdict" premised on the "fact
that the State failed to meet any elements of the case."  Although the State repeatedly
informed the trial court that they "expected [Officer Cox] to [arrive] any second," the trial
court granted appellee's motion and dismissed the jury.  An order granting appellee's
"motion for a directed verdict" was signed by the trial judge on May 24, 2007.  This appeal
ensued. 
II.  Jurisdiction
	By statute, the right of appeal afforded to the State is limited.  See Tex. Code. Crim.
Proc. Ann. art. 44.01 (Vernon Supp. 2007).  Specifically, article 44.01(a) of the code of
criminal procedure provides that the State may appeal orders that:
	(1)	dismiss an indictment, information or complaint or any portion of an
indictment, information or complaint; 
	(2)	arrest or modify a judgment; 
	(3)	grant a new trial; 
	(4)	sustain a claim of former jeopardy; or 
	(5)	grant 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.   

Id. art. 44.01(a).  The State may also appeal a sentence on the ground that it is illegal and
may appeal a ruling on question of law if the defendant is convicted and appeals the
judgment.  See id. art. 44.01(b), (c).
	On its face, the judgment in the instant case does not fall within one of the above-listed categories from which the State is permitted to appeal.  The State argues, however,
that because the trial court granted the directed verdict before it rested its case, the
judgment of acquittal is instead an improper dismissal of the State's indictment and
therefore appealable under art 4.01(a)(1).  The State contends that "until [it] rested its case
or otherwise showed that it was unable or unwilling to proceed with additional evidence,
the trial court had no authority to grant a directed verdict or otherwise pass upon the
culpability of the defendant."  
	To support its appealability argument, the State cites State v. Moreno, 807 S.W.2d
327 (Tex. Crim. App. 1991).  In Moreno, the court of criminal appeals held that the State
has the power to appeal from any trial court order concerning an indictment or information,
and the court of appeals has jurisdiction to address the merits of an appeal from such an
order, whenever the order effectively terminates the prosecution in favor of the defendant. 
Id.    
	Article 44.01(a)(1), however, deals with the dismissal of charging instruments. 
Taylor v. State, 886 S.W.2d 262, 266 (Tex. Crim. App. 1994) (stating that 44.01(a)(1) does
not embrace either an order of "acquittal" or an order dismissing a "prosecution" based on
insufficient evidence).   A motion to set aside, dismiss, or quash an indictment must be
presented to the trial court prior to an announcement by that party that it is ready for trial. 
See Neal v. State, 150 S.W.3d 169, 176 (Tex. Crim. App. 2004) (stating that this rule
serves to prevent unnecessary trials and deters the interruption of a trial on the merits for
any objection relating to the charge's institution and presentation); cf.  State v. Stanley, 201
S.W.3d 754, 757 (Tex. Crim. App. 2006) (holding that the State could appeal order
dismissing charging instrument even when a pretrial motion to dismiss was carried through
close of evidence).  
	Here, appellee did not move to dismiss the indictment against him, and the trial
court's order did not dismiss the indictment, improperly or otherwise.  The parties had
announced ready, the jury had been sworn, and three witnesses had finished testifying
before the trial court granted appellee's directed verdict.  Appellee moved for a directed
verdict, not on the basis of an objection relating to presentation of the indictment, but on
the "fact that the State failed to meet any elements of the case."
	A judgment of acquittal is not a ground upon which the State may appeal.  See Tex.
Code Crim. Proc. Ann art. 44.01(a); Taylor, 886 S.W.2d at 265-66; Moreno, 807 S.W.2d
at 332 n.6 (stating that it is well settled that a verdict of acquittal cannot be reviewed
regardless of how egregiously wrong the verdict may be).  Because the State did not
present any other grounds upon which its appeal can be based, we conclude that we lack
jurisdiction over this matter. 
III.  Conclusion
	The order granting appellee's directed verdict is not an appealable order under
article 44.01(a)(1) of the code of criminal procedure.  See Tex. Code Crim. Proc. Ann.  art.
44.01(a)(1).  Therefore, we are without jurisdiction to consider the State's appeal.  We
dismiss this appeal for want of jurisdiction.  

  
					ROGELIO VALDEZ
 Chief Justice
Publish.				
Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed 
this the 1st day of May, 2008. 
