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


                  No. 06-17-00107-CR



          THE STATE OF TEXAS, Appellant

                           V.

      ANDREW ROBERT VANNOORD, Appellee



        On Appeal from the County Court at Law
                Fannin County, Texas
                Trial Court No. 49012




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

Vannoord’s motion to suppress evidence. Vannoord has filed a motion to dismiss the State’s

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

the appeal.

        Under Rule 25.2(a)(1) of the Texas Rules of Appellate Procedure, 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) establishes that an “appeal is perfected by timely filing a

sufficient notice of appeal.” TEX. R. APP. P. 25.2(b) (emphasis added). “Notice 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) (emphasis added). Under Article 44.01 of the Texas Code of Criminal Procedure,

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. 2016).

        Although the State’s notice of appeal was timely filed, it failed to include the full

certification required by Article 44.01(a)(5). The notice states, in pertinent part, “The undersigned

prosecuting attorney certifies that . . . [j]eopardy has not attached in the case; and . . . [t]he appeal

is not taken for the purposes of delay.” Nowhere in the notice does the district attorney certify


                                                   2
“that the evidence, confession, or admission is of substantial importance in the case.” Id. As the

Court of Criminal Appeals recently stated in a case that originated from this Court, “In analyzing

Article 44.01(a)(5), we have explained that the elected prosecutor’s personal certification is

necessary in order to confer jurisdiction on the appellate court.” State v. Redus, 445 S.W.3d 151,

155–56 (Tex. Crim. App. 2014) (citing State v. Riewe, 13 S.W.3d 408, 411 (Tex. Crim. App. 2000)

(“The certification requirement is in Art. 44.01, and we have held that the failure to comply with

Art. 44.01 is a substantive defect which deprives the court of appeals of jurisdiction. Therefore,

we must conclude that the certification requirement is jurisdictional, and the State’s notice of

appeal in this case failed to confer jurisdiction on the court of appeals.”)).

       We informed the State of this potential defect in our jurisdiction and afforded her the

opportunity to demonstrate how we had jurisdiction over the matter notwithstanding the noted

defect. In response, the State did not contest that, as a result of the incomplete certification in the

notice of appeal, the State failed to properly invoke this Court’s jurisdiction. Rather, the State

filed an amended notice of appeal in the district clerk’s office and had the clerk file that notice

with this Court in the form of a supplemental clerk’s record. The amended notice contained both

of the certifications required by Article 44.01. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5).

       The Court of Criminal Appeals also spoke on this issue in Redus, stating:

       We have also held that substantive defects in the State’s notice of appeal cannot be
       corrected by an untimely amendment. Any amendment must be made before the
       expiration of the original time to file notice of appeal, that is, within twenty days
       after entry of the trial judge’s ruling. Because the prosecuting attorney’s
       certification is jurisdictional, the State’s appeal must be dismissed for want of
       jurisdiction if the proper certification is not filed within twenty days after the trial
       court enters its order suppressing evidence.

                                                   3
Redus, 445 S.W.3d at 156 (footnotes omitted) (citations omitted) (reaffirming holdings earlier

articulated in Riewe, 13 S.W.3d 408). The trial court’s order granting Vannoord’s motion to

suppress was entered on May 23, 2017, making the State’s notice of appeal due on or before June

12, 2017. The State filed its amended notice of appeal in the trial court on July 17, 2017, well

beyond the deadline for perfecting her appeal from the trial court’s order.

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

because the State was not allowed to amend a jurisdictional element of her notice after expiration

of the filing deadline, the State failed to invoke this Court’s jurisdiction, and we are left with no

choice but to dismiss this appeal.

       Accordingly, we dismiss this appeal for want of jurisdiction.




                                                  Bailey C. Moseley
                                                  Justice



Date Submitted:        July 31, 2017
Date Decided:          August 1, 2017

Do Not Publish




                                                 4
