                                                                                               ACCEPTED
                              08-15-00002-CR                                              08-15-00002-CR
                                                                                EIGHTH COURT OF APPEALS
                                                                                         EL PASO, TEXAS
                                                                                     1/30/2015 9:55:04 AM
                                                                                         DENISE PACHECO
                                                                                                   CLERK

                          IN THE COURT OF APPEALS
                          EIGHTH DISTRICT OF TEXAS
                               EL PASO, TEXAS                             FILED IN
                                                                   8th COURT OF APPEALS
                                                                       EL PASO, TEXAS
THE STATE OF TEXAS,                     §                          1/30/2015 9:55:04 AM
                                        §                              DENISE PACHECO
                                                                           Clerk
             Appellant,                 §
                                        §
v.                                      §      No. 08-15-00002-CR
                                        §
DANIEL VILLEGAS,                        §
                                        §
             Appellee.                  §


                APPELLEE’S MOTION TO DISMISS APPEAL
                     FOR WANT OF JURISDICTION


TO THE HONORABLE COURT OF APPEALS:

      COMES NOW DANIEL VILLEGAS, Appellee, and moves the Court to

dismiss this appeal for want of jurisdiction, and would show the following:

      1.     Daniel Villegas is charged with capital murder, after his 1995 conviction

was vacated by the Texas Court of Criminal Appeals. Ex parte Villegas, No.

WR-78,260-01 (Tex.Crim.App. Dec. 18, 2013). This is an attempted interlocutory

appeal by the State from a trial court order excluding evidence. However, the Court’s

jurisdiction over such appeals is limited by statute, and exists only when the

prosecuting attorney personally certifies that the evidence is of substantial importance

in the case and the appeal is not taken for the purpose of delay. The Texas Court of
Criminal Appeals has made clear that this certification requirement is the personal

obligation of the elected district attorney, and mere recitation of the statutory

language is insufficient. Instead of a personal certification by the district attorney,

however, the notice of appeal herein recites that “the State” so certifies. Because the

notice of appeal does not contain a personal certification by the prosecuting attorney,

this Court lacks jurisdiction.

      2.     The State appeals from a January 5, 2015 pretrial order excluding the

State’s evidence as irrelevant and inadmissible. [See Exhibit “A” hereto, the State’s

Notice of Appeal]. It attempts to appeal pursuant to Texas Code of Criminal

Procedure article 44.01(a)(5), which permits an appeal from an order granting a

motion to suppress evidence. [Ex. A, p. 1].

      3.     The State’s right of appeal in criminal matters is defined and limited by

statute. TEX.CODE CRIM.PRO. art. 44.01; see TEX.R.APP.P. 25.2(a)(1). Appeals by

the government are “carefully circumscribed” in order to “safeguard individuals from

the special hazards inherent in prolonged litigation with the sovereign.” State v.

Redus, 445 S.W.3d 151, 154 n. 13 (Tex.Crim.App. 2015).1 In order to appeal, the

      1
       This statement from Redus quotes authority describing federal government
appeals. However, Article 44.01 is intended to afford the State the same appellate
powers as the federal government. State v. Moreno, 807 S.W.2d 327, 332
(Tex.Crim.App. 1991). And the federal certification-of-appeal requirement serves the
same purpose as the Texas requirement. Redus, 445 S.W.3d at 157.
                                          2
State must strictly comply with Article 44.01. Noncompliance with that statute’s

specific provisions is “a substantive failure to invoke the court of appeals’ statutorily

defined jurisdiction.” State v. Riewe, 13 S.W.3d 408, 411 (Tex.Crim.App. 2000),

quoting State v. Muller, 829 S.W.2d 805, 812 (Tex.Crim.App. 1992).

       4.     Article 44.01(a)(5) permits an appeal from an order granting a motion

to suppress evidence “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.PRO. art.

44.01(a)(5) (emphasis added). The Rules of Appellate Procedure require compliance

with Article 44.01, including this certification requirement, for a notice of appeal to

be “sufficient.” Riewe, 13 S.W.3d at 411; TEX.R.APP.P. 25.2(c)(2). The prosecuting

attorney’s certification is necessary to confer jurisdiction on the Court of Appeals.

Redus, 445 S.W.3d at 152; Riewe, 13 S.W.3d at 409, 411. For this reason, any

attempted appeal by the State must be dismissed for want of jurisdiction if the proper

certification is not filed within 20 days after the trial court enters its order suppressing

evidence. Redus, 445 S.W.3d at 156.

       5.     The statutory certification requirement is no mere technicality; it carries

serious purpose. Redus, 445 S.W.3d at 157. Article 44.01(a)(5) was drafted so that,

as a practical matter, the State will appeal pretrial suppression orders only when the

                                             3
trial judge’s ruling effectively puts an end to the case, or when a point of law is

deemed so crucial and so likely to recur that an adverse ruling is “devastating to the

legal system or the concept of fair play.” Redus, 445 S.W.3d at 154. The required

certification by the district attorney is thus intended to mandate a conscientious pre-

appeal analysis and a careful appraisal of the likelihood of success and necessity for

review before an appeal is undertaken. Id. at 154, 155 n. 14. It is also intended to

ensure that prosecutors do not appeal trial judges’ rulings indiscriminately and clog

up appellate courts while leaving the defendant under the continuing cloud of

criminal charges. Id. at 154.

      6.     Significantly, the requirement of certification is personal to the elected

prosecuting attorney. The “prosecuting attorney” is defined to mean the district or

county attorney with primary responsibility for prosecuting cases in the court, and

does not include an assistant prosecuting attorney. TEX.CODE CRIM.PRO. art.

44.01(i). The statute is not satisfied by certification by an assistant prosecuting

attorney. Redus, 445 S.W.3d at 154, n. 12; Muller, 829 S.W.2d at 808-09. The

failure of the elected prosecuting attorney to make the certification is a jurisdictional

defect. Riewe, 13 S.W.3d at 410; Muller, 829 S.W.2d at 811-12.

      7.     Therefore, an appeal is permitted only if “the elected prosecutor

personally certifies” to the statutory requirements. Redus, 445 S.W.3d at 154

                                           4
(emphasis added). The certification is itself a representation, by an officer of the

court, that the appeal is not for delay and the suppressed evidence is material. Id. at

155 n. 14.2 “The elected prosecutor puts his reputation and integrity, as well as his

signature, on the line in filing notice of an interlocutory appeal.” Id. at 154-55.

      8.      Accordingly, “the elected prosecutor’s personal certification is necessary

to confer jurisdiction on the appellate court.” Redus, 154 S.W.3d at 155 n. 15

(emphasis added). Mere recitation of the statutory language is insufficient. Id. And

any inference that might be drawn from the district attorney’s signature on a notice

of appeal reciting the statutory language is also insufficient to satisfy the statutory

requirement. Id. at 157.

      9.      In Redus, the Court of Criminal Appeals ruled that the Court of Appeals

lacked jurisdiction when the notice of appeal quoted the statutory language, and was

actually signed by the elected district attorney; but he did not explicitly certify, or

vouch for, the required facts. Redus, 445 S.W.3d at 153, 156-57. The Court affirmed

the Court of Appeals’ holding that “a recitation of the pertinent Code provision does

not amount to a certification, as required by Article 44.01(a)(5).” Id. at 153.

      10.     The Court in Redus rejected the State’s argument that its interpretation

of Article 44.01(a)(5)’s personal certification requirement is hypertechnical. Id. at

      2
          Citing federal authority; see footnote 1, supra.
                                           5
158. The statutory requirement is not a mere “technicality.” Id. at 157. It ensures

that the prosecutor carefully analyzes the case before deciding to appeal. Id. “Courts

are not ‘hypertechnical’ in requiring the elected prosecutor to actually vouch for the

facts that his interlocutory appeal is not being taken for purposes of delay and that the

evidence suppressed is of ‘substantial importance’ to the case.” Id. at 158.

      11.    As explained in Redus, the certification will normally take the form “I,

John Doe, the District Attorney of XYZ County, certify that ... .” Redus, 445 S.W.3d

at 156. No special form is required, “as long as the elected prosecutor vouches for

these two facts.” Id.

      12.    The State’s Notice of Appeal in this case does not contain a personal

certification by the prosecuting attorney.       It does not certify that the elected

prosecutor personally vouches for the facts he is required by Article 44.01 to certify.

Instead, it recites that “The State certifies that jeopardy has not attached in this case,

the appeal is not taken for the purpose of delay, and the evidence is of substantial

importance in the case.” [Ex. A, p. 2, emphasis added]. The literal text of Article

44.01 is clear, and it is construed in accordance with its plain meaning. Muller, 829

S.W.2d at 808. A certification by “the State,” rather than a personal certification by

the prosecuting attorney, does not satisfy the plain language of Article 44.01(a)(5).




                                            6
       13.    The Court should follow Redus.3 The notice of appeal in this case

contains a recitation that “the State” certifies to the statutory requirements, but does

not include a personal certification from the elected district attorney. In the absence

of such a personal certification, personally vouching for the facts required to be

personally certified by statute, the notice of appeal is not sufficient to confer

jurisdiction on this Court. The appeal should be dismissed for want of jurisdiction.

       WHEREFORE, PREMISES CONSIDERED, Appellee prays that the Court

dismiss the appeal for want of jurisdiction, and for such other relief to which he may

be justly entitled.

                                        Respectfully submitted,

                                        /s/ Joe A. Spencer, Jr.
                                        Joe A. Spencer, Jr.
                                        Law Office of Joe Aureliano Spencer, Jr.
                                        Texas Bar No.18921800
                                        1009 Montana Ave.
                                        El Paso, TX 79902
                                        Tel. (915) 532-5562
                                        Fax (915) 532-7535
                                        joe@joespencerlaw.com

      3
       Other Courts have been forced to dismiss appeals since the Court of Criminal
Appeals clarified the certification requirement in Redus. State v. Chapa, 2014 WL
5573430 at *1 (Tex.App.–Houston [1st Dist.] 2014, no pet.) (memo. op.); State v.
Rodriguez, 2014 WL 5309661 at *1 (Tex.App.–Houston [14th Dist.] 2014, no pet.)
(memo. op.); State v. Moore, 2014 WL 5309874 at *1 (Tex.App.–Houston [14th Dist.]
2014, no pet.) (memo. op.). Appellee believes that this is the first appeal taken by the
El Paso County District Attorney under Article 44.01(a)(5) since Redus.
                                           7
                                      /s/ John P. Mobbs
                                      John P. Mobbs
                                      Attorney at Law
                                      Texas Bar No. 00784618
                                      7170 Westwind Dr., ste. 201
                                      El Paso, Texas 79912
                                      Tel. 915-541-8810
                                      Fax 915-541-8830
                                      Email johnmobbs@gmail.com


                                      Luis Gutierrez
                                      Attorney at Law
                                      Texas Bar No. 00792139
                                      521 Texas Ave.
                                      El Paso, Texas 79901
                                      Tel. (915) 577-0915
                                      Fax (915) 577-0790

                                      ATTORNEYS FOR DANIEL VILLEGAS

                         CERTIFICATE OF SERVICE

      The undersigned counsel certifies that this pleading was served on Jaime
Esparza, El Paso District Attorney, Attn: Lily Stroud, Assistant District Attorney,
500 E. San Antonio, rm. 201, El Paso, TX, 79901 (lstroud@epcounty.com), Attorney
for Appellant, on January 30, 2015, by electronic service.


                                      /s/ John P. Mobbs
                                      John P. Mobbs




                                        8
EXHIBIT "A"
