                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00175-CR


THE STATE OF TEXAS                                                       STATE

                                         V.

ZACHARY PALMER                                                       APPELLEE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                      TRIAL COURT NO. CR17314

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                                     OPINION

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      The State is attempting to appeal the trial court’s order granting Zachary

Palmer’s motion to suppress. In one cross-point, Palmer asserts this court lacks

jurisdiction over the State’s appeal. We agree, sustain Palmer’s cross-point, and

dismiss the State’s appeal for want of jurisdiction.
                            The Jurisdictional Statute

       Article 44.01(a)(5) of the Texas Code of Criminal Procedure authorizes the

State to appeal the granting of a motion to suppress evidence. Tex. Code Crim.

Proc. Ann. art. 44.01(a)(5) (West Supp. 2014). “The prosecuting attorney may

not make an appeal under . . . this article later than the 20th day after the date on

which the order, ruling, or sentence to be appealed is entered by the court.” Id.

art. 44.01(d). “In this article, ‘prosecuting attorney’ means the county attorney,

district attorney, or criminal district attorney who has the primary responsibility of

prosecuting cases in the court hearing the case and does not include an

assistant prosecuting attorney.” Id. art. 44.01(i).

                                    Background

       The trial court signed the order granting Palmer’s motion to suppress on

April 1, 2014. The State, therefore, had until April 21, 2014, to perfect its appeal.

Id. art. 44.01(d).

       The State filed a notice of appeal on April 7, 2014. This document stated

that it was brought “by and through the Assistant District District [sic] Attorney,”

and the “undersigned prosecuting attorney” is identified as the assistant district

attorney. The assistant district attorney signed the notice of appeal. The district

attorney’s name does not appear anywhere on the document. The April 21, 2014

deadline to perfect the appeal thereafter expired without the State filing any

additional documents.




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      Two weeks after the expiration of the deadline, on May 5, 2014, the State

filed an amended notice of appeal. This document was brought “by and through

the District Attorney,” and the “undersigned prosecuting attorney” is identified as

the district attorney. The district attorney signed the amended notice of appeal.

      Thereafter, in our court, Palmer filed a motion to dismiss on May 13, 2014.

Palmer argued that the April 7, 2014 notice of appeal was defective because it

was signed and authorized not by the district attorney but only by an assistant

district attorney in violation of article 44.01(i) and that the May 5, 2014 amended

notice of appeal was late and in violation of article 44.01(d). The State filed a

response on May 13, 2014, as well, and, along with it, an affidavit by the district

attorney in which he stated he authorized the assistant district attorney to file the

original notice of appeal on April 7, 2014. In a per curiam order, we denied the

motion to dismiss on May 14, 2014.

      Undaunted, Palmer filed a motion for rehearing on May 16, 2014.              He

argued the May 13, 2014 affidavit did not cure the jurisdictional defect. The State

filed a response on May 20, 2014, and on May 28, 2014, in another per curiam

order, we granted the motion for rehearing but again denied Palmer’s motion to

dismiss.

                                    Discussion

      In Palmer’s brief, he raises one cross-point in which he again assails this

court’s jurisdiction. He contends that the assistant district attorney’s April 7, 2014

notice of appeal was ineffective under article 44.01(i) and that the district


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attorney’s attempts to perfect the appeal after the expiration of the twenty-day

deadline were ineffective under article 44.01(d).

      The State did not file a brief responding to Palmer’s cross-point. However,

we have the benefit of the State’s responses to Palmer’s motion to dismiss and

to Palmer’s motion for rehearing. In both of the State’s responses, it stated

correctly that the prosecuting attorney, as defined in article 44.01(i) of the Texas

Code of Criminal Procedure, had to physically sign the notice of appeal or

personally instruct and authorize a subordinate to sign the specific notice of

appeal in question. See State v. Muller, 829 S.W.2d 805, 810 (Tex. Crim. App.

1992). The State then asserted, “While the instruction and authorization must

occur prior to the expiration of the filing deadline, case law demonstrates that

proof of the authorization, [sic] may come in the form of a subsequently filed

affidavit to prove the appellate court was empowered with jurisdiction by the

original Notice of Appeal.” The State then cited two cases: State v. White, 261

S.W.3d 65, 67–68 (Tex. App.—Austin 2007, no pet.), and State v. Blankenship,

146 S.W.3d 218, 219 (Tex. Crim. App. 2004).

      Upon further review, we hold that the April 7, 2014 notice of appeal signed

by the assistant district attorney is defective.    In Muller, the Texas Court of

Criminal Appeals wrote:

      Because it would have been difficult for the Legislature to have more
      clearly excluded assistant prosecutors from its definition of
      ‘prosecuting attorney,’ we interpret section (i) to mean what it plainly
      states on its face: a ‘prosecuting attorney,’ as used in Article 44.01,



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      does not include under any circumstance an assistant prosecutor or
      other subordinate.

Muller, 829 S.W.2d at 809. The April 7, 2014 notice of appeal was defective and,

therefore, ineffective to perfect the appeal because there is nothing showing the

district attorney authorized making the appeal. Id. at 812.

      We further hold that the May 5, 2014 amended notice of appeal was

similarly ineffective for two reasons. First, the State filed it after the expiration of

the twenty-day deadline. See Tex. Code Crim. Proc. Ann. art. 44.01(d). Second,

noncompliance is not susceptible to correction through application of the

amendment-and-cure provisions of the Texas Rules of Appellate Procedure.

Muller, 829 S.W.2d at 812.

      This leaves the State with the district attorney’s affidavit, filed in this court

on May 13, 2014, in which he states he authorized the assistant district attorney

to file the original notice of appeal on April 7, 2014. For the reasons given below,

we hold it is ineffective to perfect the appeal.

      Substantively, we see no difference between the district attorney’s affidavit

and the amended notice of appeal filed in Muller after the expiration of the

deadline. See Muller, 829 S.W.2d at 812–13. As noted earlier, noncompliance

is not susceptible to correction through application of the amendment-and-cure

provisions of the Texas Rules of Appellate Procedure. Id. at 812. Ratification by

the prosecuting attorney after the expiration of the deadline is ineffective. State

v. Boseman, 830 S.W.2d 588, 589–90 (Tex. Crim. App. 1992). “[T]he State lost



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the opportunity to appeal when the fifteen[-]day window of opportunity closed

without the county attorney’s personal and express authorization of this specific

notice of appeal.”     Id. at 590.1 Jurisdiction cannot be retroactively obtained.

State v. Riewe, 13 S.W.3d 408, 412 (Tex. Crim. App. 2000). 2 Once jurisdiction is

lost, the courts of appeals lack the power to invoke any rule to thereafter obtain

jurisdiction. Id. at 413.

         Regarding the two cases the State relied on in its responses, White and

Blankenship, we hold that they are distinguishable. We address Blankenship

first.

         In Blankenship, the State timely filed the original notice of appeal and its

amended notice of appeal on the same date. State v. Blankenship, 123 S.W.3d

99, 104 n.5 (Tex. App.—Austin 2003), rev’d, 146 S.W.3d 218 (Tex. Crim. App.

2004). The court of appeals did not question the timeliness of the original and

amended notices of appeal. Id. at 105. The original notice of appeal was signed

by an assistant city attorney and made no mention of the county attorney. Id. at

104 n.5. The amended notice of appeal, although still signed by the assistant

         1
        The statute was amended in 2007 to extend the deadline from fifteen days
to twenty days. Act of May 28, 2007, 80th Leg., R.S., ch. 1038, § 2, 2007 Tex.
Gen. Laws 3592 (amended 2007) (current version at Tex. Code Crim. Proc. Ann.
art. 44.01(d)).
         2
       The Texas Court of Appeals later stated that the portion of Riewe that
asserted a defendant could not use rule 25.2(d) of the Texas Rules of Appellate
Procedure to cure a jurisdictional defect in a notice of appeal was dicta and
declined to rely on it. See Bayless v. State, 91 S.W.3d 801, 805 n.8 (Tex. Crim.
App. 2002).


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city attorney, added one paragraph stating that the notice of appeal was with the

consent of the county attorney. Id. at 105. After the expiration of the deadline,

the State filed affidavits in which it asserted both the city and the county

attorneys had authorized the appeal within the deadline. Id. at 106. The Austin

Court of Appeals held that both the recitation in the timely-filed amended notice

of appeal (that the appeal was with the consent of the county attorney) and the

untimely-filed affidavits were ineffective and dismissed the appeal. Id. at 105–06.

      In contrast, the Texas Court of Criminal Appeals, relying strictly on the

recitation of the county attorney’s consent in the timely-filed amended notice of

appeal, held the amended notice of appeal complied with article 44.01(d) and

reversed the court of appeals. Blankenship, 146 S.W.3d at 220. The Texas

Court of Criminal Appeals did not rely on the untimely-filed affidavits. Id. The

State’s reliance on Blankenship for that proposition is, therefore, misplaced.

      Moving on to White, in that case, when determining the timeliness of the

filing, the court of appeals relied on an affidavit by a clerk to show the district

clerk’s office was closed for two days due to inclement weather. State v. White,

248 S.W.3d 310, 312 (Tex. App.—Austin 2007, no pet.). The court noted rule

4.1(b) of the Texas Rules of Appellate Procedure expressly authorized the use of

affidavits when determining the timeliness of filings. Id. (citing Tex. R. App. P.

4.1(b)). As shown in a subsequent opinion by the court in the same case, the

court drew a distinction between the making of an appeal under article 44.01(d)

and the filing of the notice of appeal.


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      The deadline for filing the notice of appeal in White was January 15, 2007,

but due to a holiday and two days of inclement weather, the deadline for filing

was extended until January 18, 2007, by virtue of rule 4.1 of the Texas Rules of

Appellate Procedure, and the State thus successfully filed its notice of appeal

timely on January 18, 2007. White, 261 S.W.3d at 66. The problem, however,

was not the timeliness of the filing of the notice of appeal but the timeliness of the

making of the appeal under article 44.01(d).

      The district attorney signed the notice of appeal but did not date his

signature. Id. at 67. Although rule 4.1 extended the time to file the notice of

appeal, the court held that rule 4.1 did not extend the time during which the

prosecuting attorney had to make the appeal under article 44.01(d);

consequently, the court of appeals abated the appeal and remanded the matter

to the trial court to determine whether the district attorney had signed the notice

of appeal, that is, made the appeal as contemplated under article 44.01(d), by

January 15, 2007. Id. “The district attorney filed an affidavit in the district court

stating that he signed the State’s notice of appeal on January 10, 2007, and after

a brief hearing, the district court so found.” Id. The Austin Court of Appeals

asserted jurisdiction and went on to affirm the trial court’s order on the merits

dismissing the State’s indictment. State v. White, No. 03-07-00041-CR, 2008 WL

5264735, at *1 (Tex. App.—Austin Dec. 18, 2008), rev’d, 306 S.W.3d 753 (Tex.

Crim. App. 2010).




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      When the case went up to the Texas Court of Criminal Appeals, that court

never questioned jurisdiction. State v. White, 306 S.W.3d 753, 754–60 (Tex.

Crim. App. 2010). Courts may sua sponte address jurisdictional issues because

subject matter jurisdiction cannot be conferred by agreement of the parties.

State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on

other grounds by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002)

(overruling requirement that defendant must allege evidence was illegally

obtained before the State could take an appeal under article 44.01(a)(5)

contesting the granting of a motion to suppress). Consequently, if the Austin

Court of Appeals had incorrectly asserted jurisdiction, we would expect the Texas

Court of Criminal Appeals to have addressed that issue. We conclude, therefore,

that, at least under some circumstances, the State may use an affidavit filed after

the deadline to prove its assertion that it properly made the appeal in compliance

with article 44.01(d).

      We nevertheless hold White is distinguishable. First, the court in White

expressly stated that the State’s notice of appeal was not defective on its face

because neither article 44.01 nor earlier case law required the prosecuting

attorney to indicate the date on which he signed the notice of appeal. White, 261

S.W.3d at 67. In contrast, the notice of appeal in the present case is defective on

its face because it is signed by an assistant district attorney and makes no

reference to the prosecuting attorney having authorized the appeal. See Muller,

829 S.W.2d at 812. A defective notice of appeal is “not susceptible to correction


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through application of the ‘amendment and cure’ provisions of the Texas Rules of

Appellate Procedure.” See id. Article 44.01 itself provides no “amendment and

cure” provision. Tex. Code Crim. Proc. art. 44.01.

      Second, in Muller, the Texas Court of Criminal Appeals wrote:

      Whenever a question is legitimately raised concerning the
      prosecuting attorney’s personal authorization of a State’s appeal, the
      State bears the burden of proving that the appeal in question was
      personally, expressly and specifically authorized by the prosecuting
      attorney. Thus, the appellate record must clearly reflect the
      prosecuting attorney’s personal authorization of the specific notice of
      appeal filed in a given case. Without a signature or other written
      expressed authorization, as reflected in the appellate record, there
      would be no guarantee that the only person permitted by statute to
      make an appeal on behalf of the State actually participated in the
      process. Evidence of a general delegation of authority to an
      assistant does not qualify under the statute.

Muller, 829 S.W.2d at 810 n.6. In White the district attorney signed the notice of

appeal, and the State filed the notice of appeal timely. White, 261 S.W.3d at 66–

67. The ambiguity—the “legitimately raised” concern—was whether the district

attorney made the appeal within the article 44.01(d) deadline, which, unlike the

filing requirements, could not be extended. White had a “legitimately raised”

concern that could be clarified with an affidavit after the expiration of the article

44.01(d) deadline. In the present case, there is no “legitimately raised” concern

in the April 7, 2014 notice of appeal. It is defective on its face. See Muller, 829

S.W.2d at 812.     Nothing in that document hints in the least that the district

attorney authorized this specific appeal. If there is no compliance within the

twenty-day window, the window is thereafter closed. See Boseman, 830 S.W.2d



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at 590–91; Muller, 829 S.W.2d at 813.           At the expiration of the twenty-day

deadline, the State had only a defective notice of appeal on file, which perfected

nothing. See State v. Shelton, 830 S.W.2d 605, 606 (Tex. Crim. App. 1992)

(holding signature stamp of county attorney authorizing the appeal was

ineffective to vest court of appeals with jurisdiction).

                                     Conclusion

       We sustain Palmer’s cross-point and dismiss the State’s appeal for want of

jurisdiction.



                                                      /s/ Anne Gardner
                                                      ANNE GARDNER
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

PUBLISH

DELIVERED: June 25, 2015




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