                                                                         PD-0880-15
                        PD-0880-15                     COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                     Transmitted 7/15/2015 11:03:19 AM
                                                        Accepted 7/17/2015 1:04:19 PM
                                                                        ABEL ACOSTA
                          No. 02-14-00175-CR                                    CLERK

                 TO THE COURT OF CRIMINAL APPEALS

                      OF THE STATE OF TEXAS


THE STATE OF TEXAS,                                          Appellant

v.

ZACHARY PALMER,                                              Appellee



                       Appeal from Wise County



                             * * * * *

            STATE’S PETITION FOR DISCRETIONARY REVIEW


                             * * * * *

                           LISA C. McMINN
                       State Prosecuting Attorney
                         Bar I.D. No. 13803300

                       STACEY M. GOLDSTEIN
                        Assistant State’s Attorney
                         Bar I.D. No. 24031632

                             P.O. Box 13046
                           Austin, Texas 78711
                       information@spa.texas.gov
                       512-463-1660 (Telephone)
                           512-463-5724 (Fax)

 July 17, 2015
           IDENTITY OF PARTIES, JUDGE, AND COUNSEL

*   The parties to the trial court’s judgment are the State of Texas and Appellee,
    Zachary Palmer.

*   The trial Judge was Hon. John H. Fostel, 271st Judicial District Court.

*   Trial counsel for the State was Tim Cole, Assistant District Attorney, 101 North
    Trinity, Suite 200, Decatur, Texas 76234.

*   Counsel for the State before the Court of Appeals was Patrick D. Berry,
    Assistant District Attorney, 101 North Trinity, Suite 200, Decatur, Texas
    76234.

*   Counsel for the State before the Court of Criminal Appeals is Stacey M.
    Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
    Texas 78711.

*   Counsel for Appellee at trial and before the Court of Appeals was Barry Green,
    101 West Main, Decatur, Texas 76234.




                                        i
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES, JUDGE, AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Did the State’s timely filed notice of appeal signed only by an assistant district
attorney invoke the court of appeals’ jurisdiction when the elected district
attorney’s untimely filed affidavit stated that he authorized the appeal when it
was filed?

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-10

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX A (Opinion of the Court of Appeals)

APPENDIX B (State’s Response to Appellee’s Motion to Dismiss State’s Appeal )




                                                         ii
                                    INDEX OF AUTHORITIES

Cases

State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994). . . . . . . . . . . . . . . . . 8 n.14

State v. Blankenship, 146 S.W.3d 218 (Tex. Crim. App. 2004). . . . . . . . . 5, 5 n.9, 6

State v. Boseman, 830 S.W.2d 588 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . 5, 9

Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App 1998). . . . . . . . . . . . . . . . . . 8 n.4

State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007).. . . . . . . . . . . 7-8 n.12

Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App. LEXIS 6460
(Tex. App.—Houston [14th] 2015) (op. on remand) (Frost, J., concurring). . . 7 n.11

State v. Muller, 829 S.W.2d 805 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . 3-4, 6-9

State v. Palmer, __ S.W.3d __, No. 02-14-00175-CR, 2015 Tex. App. LEXIS 6572
(Tex. App.—Fort Worth 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4-5

State v. Redus, 445 S.W.3d 151 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . 10 n.16

State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . 5, 9-10

State v. Shelton, 830 S.W.2d 605 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . 7 n.10

State v. White, 261 S.W.3d 65 (Tex. App.—Austin 2007). . . . . . . . . 5, 5 n.8, 8 n.15

Statutes

T EX. C ODE C RIM. P ROC. art. 44.01(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

T EX. C ODE C RIM. P ROC. art. 44.01(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

T EX. C ODE C RIM. P ROC. art. 44.01(i).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3



                                                       iii
Secondary Sources

B LACK’S L AW D ICTIONARY 74 (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.11

B LACK’S L AW D ICTIONARY 1135 (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . 7 n.12

B LACK’S L AW D ICTIONARY 1184 (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . 8 n.13




                                                 iv
                               No. 02-14-00175-CR

                  TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS



THE STATE OF TEXAS,                                                           Appellant

v.

ZACHARY PALMER,                                                               Appellee


                            Appeal from Wise County



                                    * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                    * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     The State respectfully urges this Court to grant discretionary review.

             STATEMENT REGARDING ORAL ARGUMENT

      The State does not request oral argument.

                         STATEMENT OF THE CASE

        The State filed a notice of appeal from the trial court’s order granting

Appellee’s suppression motion. The notice was not signed by the elected district

                                         1
attorney as required by Texas Code of Criminal Procedure Article 44.01(d), (i). In

response to Appellee’s motion to dismiss for want of jurisdiction, filed after the

appellate timetable expired, the State filed an affidavit from the district attorney,

stating that he had authorized the assistant district attorney to purse the appeal when

it was filed. The court of appeals held that consideration of the untimely affidavit as

proof of authorization was improper because it could not retroactively cure the notice

by amendment or ratification. The court then dismissed the State’s appeal.

                  STATEMENT OF PROCEDURAL HISTORY

       In a published decision, the court of appeals dismissed the State’s appeal for

want of jurisdiction. State v. Palmer, __ S.W.3d __, No. 02-14-00175-CR, 2015 Tex.

App. LEXIS 6572 (Tex. App.—Fort Worth 2015). The State did not file a motion for

rehearing.

                              GROUND FOR REVIEW

Did the State’s timely filed notice of appeal signed only by an assistant district
attorney invoke the court of appeals’ jurisdiction when the elected district
attorney’s untimely filed affidavit stated that he authorized the appeal when it
was filed?

                                     ARGUMENT

      Texas Code of Criminal Procedure Article 44.01(a)(5) provides that the State

is entitled to appeal an order granting a motion to suppress if the “prosecuting attorney

certifies . . . that the appeal is not taken for the purpose of delay and that the evidence

                                            2
. . . is of substantial importance to the case . . . .” “Prosecuting Attorney” means the

district attorney; it does not include an assistant district attorney. T EX. C ODE C RIM.

P ROC. art. 44.01(i).    This requirement was intended to prevent the State from filing

frivolous appeals for purposes of harassment. State v. Muller, 829 S.W.2d 805, 811

n.7 (Tex. Crim. App. 1992).

       In this case, the State timely filed a notice of appeal from the trial court’s order

granting Appellee’s motion to suppress.1 However, it was signed by an assistant

district attorney, not the Wise County District Attorney.2 The State then filed an

untimely amended notice of appeal, which was signed by the district attorney.3

       Appellee moved to dismiss, arguing that the timely notice of appeal was

defective because it was not signed and therefore not authorized by the district

attorney.4 He also claimed that the amended notice was late, in violation of Texas

Code of Criminal Procedure 44.01(d), which states that a prosecuting attorney may

not make an appeal under subsection (a) later than 20 days after the order was



   1
       See 1 CR 70-71.
   2
       See 1 CR 70-71.
   3
       See 1 CR 75-76.
   4
     Appellee’s Motion to Dismiss State’s Appeal at 1-2. Because these
documents were filed in the court of appeals, they are not included in the trial-court
clerk’s record.

                                             3
entered.5 The State filed a response, claiming that the assistant district attorney filed

the timely notice of appeal with the full authorization of the district attorney.6 In

support, the State attached an affidavit from the district attorney stating, in part:

       With my full knowledge, authorization and under my direct instruction,
       Patrick Berry filed a Notice of Appeal on April 7, 2014, within 20 days
       required by Texas Rule of Appellate Procedure, Rule 26.2(b). Mr. Berry
       signed said Notice of Appeal with my full consent and under my
       instruction to do so on my behalf. I personally authorized Mr. Berry to
       sign and file the Notice of Appeal at that time.
                                            ...
       Although I did not personally sign the original Notice of Appeal . . . I did
       personally authorize Patrick Berry . . . to sign said Notice on my behalf
       and said Notice should be taken as my personal act, authorization, and
       certification, of the appeal in the above-mentioned case.7

       After twice denying Appellee’s motion to dismiss, Palmer, 2015 Tex. App.

LEXIS 6572, at * 3, the Fort Worth Court of Appeals dismissed the State’s appeal for

want of jurisdiction, relying primarily on this Court’s decision in State v. Muller. Id.

at *4-12. Following Muller, the Forth Worth Court held that the State’s first notice

was defective and that its untimely amended notice did not cure the defect. Palmer,

2015 Tex. App. LEXIS 6572, at *5. The district attorney’s affidavit, the court stated,



   5
       Appellee’s Motion to Dismiss State’s Appeal at 1-2.
   6
    See Appendix B, State’s Response to Appellee’s Motion to Dismiss State’s
Appeal at 1-3.
   7
    See Appendix B, State’s Response to Appellee’s Motion to Dismiss State’s
Appeal at Attachment A.

                                            4
is no different than the amended notice. Id. Ratification after the filing deadline is

ineffective under State v. Boseman, 830 S.W.2d 588 (Tex. Crim. App. 1992), and

jurisdiction cannot be retroactively obtained under State v. Riewe, 13 S.W.3d 408

(Tex. Crim. App. 2000). Palmer, 2015 Tex. App. LEXIS 6572, at *6. The court also

rejected the State’s reliance on State v. Blankenship, 146 S.W.3d 218 (Tex. Crim.

App. 2004), and State v. White, 261 S.W.3d 65 (Tex. App.—Austin 2007), concluding

that both were distinguishable.8 Palmer, 2015 Tex. App. LEXIS 6572, at *6-9.

       The court of appeals’ decision merits review. The particular facts of this case

parallel the second ground for review granted but left unaddressed by this Court in

Blankenship in 2004.9 In Blakenship, like this case, when the appellee urged the court

of appeals to dismiss for lack of jurisdiction, the State filed a response with an

accompanying affidavit from the elected county attorney, which stated that he had

consented to and authorized the appeal within the time for filing the appeal. 146

S.W.3d at 219. Arguing in the alternative to its reliance on a timely and properly



   8
     In White, the Austin Court of Appeals relied, in part, on the district attorney’s
affidavit, filed after the appellate deadline, that provided the date he had filed the
notice of appeal. 261 S.W.3d at 67.
   9
      Instead, this Court relied on the State’s timely signed amended notice when
holding that the court of appeals’ jurisdiction had been properly invoked.
Blankenship, 146 S.W.3d at 220. Even though the notice was signed by an
assistant county attorney, it included a “written express personal authorization by
the County Attorney of this specific notice of appeal in this particular case.” Id.

                                           5
signed amended notice, the State submitted the following ground for review: “The

Court of Appeals erred in holding, in effect, that the State’s notice of appeal requires

the personal signature of the ‘prosecuting attorney.’” Id. at 219 n.3. This Court

should decide whether a State’s notice of appeal that is signed by an assistant district

attorney deprives an appellate court of jurisdiction when the district attorney later

explains in an affidavit, filed after the appellate timetable expired, that he had

authorized the “making of the appeal” when it was filed. There is no precedent from

this Court addressing this situation, and the Forth Worth Court’s application of related

precedent is incorrect.

      In Muller, the first assistant district attorney signed the notice of appeal. 829

S.W.2d at 806. Over eight months later, the court of appeals granted the State leave

to file an amended notice of appeal signed by the district attorney. Id. at 806-07. The

court of appeals held that the amended notice cured any defect in the original notice.

Id. at 807.

      This Court reversed, holding that Article 44.01(d) plainly states that only the

“prosecuting attorney” may “make an appeal” under subsection (a). Id. at 810.

“Make an appeal” requires the prosecuting attorney “to personally supervise and

authorize the appeals to be undertaken by his office on behalf of the State.” Id. Thus,

“to comply with the statute, he must either physically sign the notice of appeal or



                                           6
personally instruct and authorize a subordinate to sign the specific notice of appeal in

question.” Id. A statement that the appeal is taken “‘by and through the prosecuting

attorney’” is insufficient to prove that the prosecuting attorney has “performed the

safeguard function.”10 Id. at 811. And the authorization must occur before the time

for filing the notice expires. Id. at 810. This Court then held that the State’s first

notice of appeal was defective because the elected district attorney did not authorize

it within the time required.   Id. at 811. Considering the late amended notice, this

Court determined that, because Article 44.01(d) limits the State’s substantive right to

appeal, it could not be cured by correction or amendment. Id. at 812-13. Therefore,

the court of appeals had no jurisdiction to consider the State’s appeal. Id. at 813.

        Contrary to the Fort Worth Court of Appeals, correction or cure via

amendment,11 ratification,12 and retroactivity13 are inapplicable principles. All pertain


   10
      Nor is a district attorney’s signature stamp, coupled with the “live” signature
of an assistant district attorney, adequate. State v. Shelton, 830 S.W.2d 605, 606
(Tex. Crim. App. 1992).
   11
      “Amendment” means “[t]o change or modify for the better. To alter by
modification, deletion, or addition.” B LACK’S L AW D ICTIONARY 74 (5th ed. 1979).
One appellate court justice has observed that an amended document replaces the
original. Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App.
LEXIS 6460 (Tex. App.—Houston [14th] 2015) (op. on remand) (Frost, J.,
concurring).
   12
      “Ratify” means “[t]o approve and sanction; to make valid; to confirm; to give
sanction to.” B LACK’S L AW D ICTIONARY 1135 (5th ed. 1979). This Court has
recognized that ratification involves reaffirming an interpretation at a point later in

                                           7
to subsequent, post-notice effective action. But such action is not at issue here. The

notice of appeal was proper at the time it was filed because the district attorney’s

authorization for filing was operative at that time. Therefore, no subsequent action

was needed. The affidavit merely memorialized the prior, timely authorization.14 The

circumstances here are in accord with the dictates of Muller. Muller indicated that

there is no requirement that the authorization appear on the face of the notice, just that

the appellate record clearly reflect its existence.15

        Whenever a question is legitimately raised concerning the prosecuting
        attorneys 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



time. See State v. Colyandro, 233 S.W.3d 870, 878-85 (Tex. Crim. App. 2007).
   13
       “Retroactive” means “[r]etrospective,” which means “[l]ooking backwards;
contemplating what is past; having reference to a state of things existing before the
act in question.” B LACK’S L AW D ICTIONARY 1184 (5th ed. 1979).
   14
      See, e.g., Coffey v. State, 979 S.W.2d 326, 328-29 (Tex. Crim. App 1998)
(written judgment is intended to be a memorialization of oral pronouncement of
sentence); State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (“A
judgment nunc pro tunc . . . literally means ‘now for then’ . . . .”).
   15
     See also White, 261 S.W.3d at 68 (“neither the statute nor any opinion of
which we are aware establishes a time limit for the State to prove that the
prosecuting attorney did in fact properly authorize the appeal.”).

                                            8
        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.

        The existence of the Wise County District Attorney’s authorization was

established by affidavit.    And because the notice of appeal was authorized, it was

made by the district attorney and thus invoked the court of appeals’ jurisdiction at that

time.

        Boseman is inapposite because the county attorney had not authorized the

assistant country attorney to act on his behalf or appeal when the notice was filed.

There, the county attorney filed an untimely affidavit in response to Boseman’s

motion to dismiss, purporting to deputize the assistant county attorney to prosecute

the appeal and stating that he ratified and approved of the notice of appeal. 830

S.W.3d at 589. This Court held that the State lost its right to appeal when the

“window of opportunity closed without the county attorney’s personal and express

authorization of this specific notice of appeal.” Id. at 591.

        Riewe is also not on point. In that case, the State failed to certify in its notice

that the appeal was not for delay and that the evidence was of substantial importance




                                             9
to the case.16 13 S.W.3d at 409. After filing its brief, the State amended its notice

with the certifications.    Id.   This Court held that amended notice could not

retroactively invoke the court of appeals’ jurisdiction. Id. at 412. In this case, unlike

the absent certifications, the authorization here did in fact exist at the time the notice

was filed.

        Nothing in this Court’s precedent requires that the existence of the district

attorney’s authorization to appeal appear on the notice itself. The district attorney’s

sworn statement that he authorized the assistant district attorney to perfect an appeal

in this case proves compliance with Article 44.01 at the time the notice was filed.

The court of appeals erred to dismiss for want of jurisdiction.




   16
       Last year in State v. Redus, the Court unanimously reaffirmed its decision in
Riewe that the State’s notice must contain the certification statements to invoke the
appellate court’s jurisdiction. 445 S.W.3d 151, 156 (Tex. Crim. App. 2014). The
Court went on to hold that the district attorney’s citation to the statute requiring the
certification does not satisfy the substantive voucher requirements for the
certification statements. Id. at 157.

                                           10
                                     PRAYER

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review and reverse the decision of the court of

appeals dismissing the State’s appeal.



                                         Respectfully submitted,

                                         LISA C. McMINN
                                         State Prosecuting Attorney
                                         Bar I.D. No.13803300


                                         /s/ STACEY M. GOLDSTEIN
                                         Assistant State Prosecuting Attorney
                                          Bar I.D. No. 24031632


                                         P.O. Box 13046
                                         Austin, Texas 78711
                                         information@spa.texas.gov
                                         512-463-1660 (Telephone)
                                         512-463-5724 (Fax)




                                          11
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool this

document contains 2,112 words, exclusive of the items excepted by T EX. R. A PP. P.

9.4(i)(1).




                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         12
                          CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on July 15, 2015, via certified electronic service provider to:

Hon. Patrick D. Berry
101 North Trinity
Suite 200
Decatur, Texas 76234
patrick.berry@co.wise.tx.us

Hon. Barry Green
101 West Main
Decatur, Texas 76234
barry@barrysgreen.com


                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                          13
APPENDIX A
                 THE STATE OF TEXAS, STATE v. ZACHARY PALMER,
                                  APPELLEE

                                      NO. 02-14-00175-CR

              COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT
                                  WORTH

                                  2015 Tex. App. LEXIS 6572


                                    June 25, 2015, Delivered
                                  June 25, 2015, Opinion Filed

NOTICE:     PUBLISH
                                                  The Jurisdictional Statute
PRIOR HISTORY:     [*1] FROM THE                      Article 44.01(a)(5) of the Texas Code of
271ST DISTRICT COURT OF WISE                      Criminal Procedure authorizes the State to
COUNTY. TRIAL COURT NO. CR17314.                  appeal the granting of a motion to suppress
TRIAL COURT JUDGE: HON. JOHN H.                   evidence. Tex. Code Crim. Proc. Ann. art.
FOSTEL.                                           44.01(a)(5) (West Supp. 2014). "The
                                                  prosecuting attorney may not make an appeal
                                                  under . . . this article later than the 20th day
COUNSEL: FOR STATE: GREG PRESTON                  after the date on which the order, ruling, or
LOWERY, DISTRICT ATTORNEY FOR                     sentence to be appealed is entered by the
WISE COUNTY, DECATUR, TEXAS.                      court." Id. art. 44.01(d). "In this article,
                                                  'prosecuting attorney' means the county
FOR APPELLEE: BARRY GREEN, SMITH                  attorney, district attorney, or criminal district
& GREEN, P.C., DECATUR, TEXAS.                    attorney who has the primary responsibility of
                                                  prosecuting cases in the court hearing the case
JUDGES: PANEL: LIVINGSTON,                C.J.;   and does not include an assistant prosecuting
GARDNER and WALKER, JJ.                           attorney." Id. art. 44.01(i).
OPINION BY: ANNE GARDNER                          Background [*2]
OPINION                                               The trial court signed the order granting
                                                  Palmer's motion to suppress on April 1, 2014.
    The State is attempting to appeal the trial   The State, therefore, had until April 21, 2014,
court's order granting Zachary Palmer's motion    to perfect its appeal. Id. art. 44.01(d).
to suppress. In one cross-point, Palmer asserts
this court lacks jurisdiction over the State's       The State filed a notice of appeal on April
appeal. We agree, sustain Palmer's cross-point,   7, 2014. This document stated that it was
and dismiss the State's appeal for want of        brought "by and through the Assistant District
jurisdiction.                                     District [sic] Attorney," and the "undersigned
prosecuting attorney" is identified as the            deadline were      ineffective   under    article
assistant district attorney. The assistant district   44.01(d).
attorney signed the notice of appeal. The                 The State did not file a brief responding to
district attorney's name does not appear              Palmer's cross-point. However, we have the
anywhere on the document. The April 21, 2014          benefit of the [*4] State's responses to Palmer's
deadline to perfect the appeal thereafter expired     motion to dismiss and to Palmer's motion for
without the State filing any additional               rehearing. In both of the State's responses, it
documents.                                            stated correctly that the prosecuting attorney, as
    Two weeks after the expiration of the             defined in article 44.01(i) of the Texas Code of
deadline, on May 5, 2014, the State filed an          Criminal Procedure, had to physically sign the
amended notice of appeal. This document was           notice of appeal or personally instruct and
brought "by and through the District Attorney,"       authorize a subordinate to sign the specific
and the "undersigned prosecuting attorney" is         notice of appeal in question. See State v.
identified as the district attorney. The district     Muller, 829 S.W.2d 805, 810 (Tex. Crim. App.
attorney signed the amended notice of appeal.         1992). The State then asserted, "While the
                                                      instruction and authorization must occur prior
    Thereafter, in our court, Palmer filed a
                                                      to the expiration of the filing deadline, case law
motion to dismiss on May 13, 2014. Palmer
                                                      demonstrates that proof of the authorization,
argued that the April 7, 2014 notice of appeal
                                                      [sic] may come in the form of a subsequently
was defective because it was signed and
                                                      filed affidavit to prove the appellate court was
authorized not by the district attorney but only
                                                      empowered with jurisdiction by the original
[*3]     by an assistant district attorney in
                                                      Notice of Appeal." The State then cited two
violation of article 44.01(i) and that the May 5,
                                                      cases: State v. White, 261 S.W.3d 65, 67-68
2014 amended notice of appeal was late and in
                                                      (Tex. App.--Austin 2007, no pet.), and State v.
violation of article 44.01(d). The State filed a
                                                      Blankenship, 146 S.W.3d 218, 219 (Tex. Crim.
response on May 13, 2014, as well, and, along
                                                      App. 2004).
with it, an affidavit by the district attorney in
which he stated he authorized the assistant               Upon further review, we hold that the April
district attorney to file the original notice of      7, 2014 notice of appeal signed by the assistant
appeal on April 7, 2014. In a per curiam order,       district attorney is defective. In Muller, the
we denied the motion to dismiss on May 14,            Texas Court of Criminal Appeals wrote:
2014.
                                                                 Because it would have been
    Undaunted, Palmer filed a motion for
                                                            difficult for the Legislature to have
rehearing on May 16, 2014. He argued the May
                                                            more clearly excluded assistant
13, 2014 affidavit did not cure the
                                                            prosecutors from its definition of
jurisdictional defect. The State filed a response
                                                            'prosecuting attorney,' we interpret
on May 20, 2014, and on May 28, 2014, in
                                                            section (i) to mean what it plainly
another per curiam order, we granted the
                                                            states on its face: a 'prosecuting
motion for rehearing but again denied Palmer's
                                                            attorney,' as used in Article 44.01,
motion to dismiss.
                                                            does not include under any
                                                            circumstance an assistant [*5]
Discussion
                                                            prosecutor or other subordinate.
    In Palmer's brief, he raises one cross-point
in which he again assails this court's
jurisdiction. He contends that the assistant          Muller, 829 S.W.2d at 809. The April 7, 2014
district attorney's April 7, 2014 notice of appeal    notice of appeal was defective and, therefore,
was ineffective under article 44.01(i) and that       ineffective to perfect the appeal because there
the district attorney's attempts to perfect the       is nothing showing the district attorney
appeal after the expiration of the twenty-day         authorized making the appeal. Id. at 812.
                                                            stated that the portion of Riewe that
    We further hold that the May 5, 2014
                                                            asserted a defendant could not use rule
amended notice of appeal was similarly
                                                            25.2(d) of the Texas Rules of Appellate
ineffective for two reasons. First, the State filed
                                                            Procedure to cure a jurisdictional defect
it after the expiration of the twenty-day
                                                            in a notice of appeal was dicta and
deadline. See Tex. Code Crim. Proc. Ann. art.
                                                            declined to rely on it. See Bayless v.
44.01(d). Second, noncompliance is not
                                                            State, 91 S.W.3d 801, 805 n.8 (Tex. Crim.
susceptible to correction through application of
                                                            App. 2002).
the amendment-and-cure provisions of the
Texas Rules of Appellate Procedure. Muller,               Regarding the two cases the State relied on
829 S.W.2d at 812.                                    in its responses, White and Blankenship, we
                                                      hold that they are distinguishable. We address
    This leaves the State with the district
                                                      Blankenship first.
attorney's affidavit, filed in this court on May
13, 2014, in which he states he authorized the            In Blankenship, the State timely filed the
assistant district attorney to file the original      original notice of appeal and its amended
notice of appeal on April 7, 2014. For the            notice of appeal on the same date. State v.
reasons given below, we hold it is ineffective to     Blankenship, 123 S.W.3d 99, 104 n.5 (Tex.
perfect the appeal.                                   App.--Austin 2003), rev'd, 146 S.W.3d 218
                                                      (Tex. Crim. App. 2004). The court of appeals
    Substantively, we see no difference
                                                      did not question the timeliness of the original
between the district attorney's affidavit and the
                                                      [*7] and amended notices of appeal. Id. at 105.
amended notice of appeal filed in Muller after
                                                      The original notice of appeal was signed by an
the expiration of the deadline. See Muller, 829
                                                      assistant city attorney and made no mention of
S.W.2d at 812-13. As noted earlier,
                                                      the county attorney. Id. at 104 n.5. The
noncompliance is not susceptible to correction
                                                      amended notice of appeal, although still signed
through application of the amendment-and-cure
                                                      by the assistant city attorney, added one
provisions of the Texas Rules of Appellate
                                                      paragraph stating that the notice of appeal was
Procedure. Id. at 812. Ratification [*6] by the
                                                      with the consent of the county attorney. Id. at
prosecuting attorney after the expiration of the
                                                      105. After the expiration of the deadline, the
deadline is ineffective. State v. Boseman, 830
                                                      State filed affidavits in which it asserted both
S.W.2d 588, 589-90 (Tex. Crim. App. 1992).
                                                      the city and the county attorneys had
"[T]he State lost the opportunity to appeal
                                                      authorized the appeal within the deadline. Id. at
when the fifteen[-]day window of opportunity
                                                      106. The Austin Court of Appeals held that
closed without the county attorney's personal
                                                      both the recitation in the timely-filed amended
and express authorization of this specific notice
                                                      notice of appeal (that the appeal was with the
of appeal." Id. at 590. Jurisdiction cannot be
                        1

                                                      consent of the county attorney) and the
retroactively obtained. State v. Riewe, 13
                                                      untimely-filed affidavits were ineffective and
S.W.3d 408, 412 (Tex. Crim. App. 2000). Once2

                                                      dismissed the appeal. Id. at 105-06.
jurisdiction is lost, the courts of appeals lack
the power to invoke any rule to thereafter                In contrast, the Texas Court of Criminal
obtain jurisdiction. Id. at 413.                      Appeals, relying strictly on the recitation of the
                                                      county attorney's consent in the timely-filed
      1 The statute was amended in 2007 to            amended notice of appeal, held the amended
      extend the deadline from fifteen days to        notice of appeal complied with article 44.01(d)
      twenty days. Act of May 28, 2007, 80th          and reversed the court of appeals. Blankenship,
      Leg., R.S., ch. 1038, § 2, 2007 Tex. Gen.       146 S.W.3d at 220. The Texas Court of
      Laws 3592 (amended 2007) (current               Criminal Appeals did not rely on the untimely-
      version at Tex. Code Crim. Proc. Ann.           filed affidavits. Id. The State's reliance on
      art. 44.01(d)).                                 Blankenship for that proposition is, therefore,
      2     The Texas Court of Appeals later          misplaced.
                                                     LEXIS 9492, 2008 WL 5264735, at *1 (Tex.
     Moving on to [*8] White, in that case,
                                                     App.--Austin Dec. 18, 2008), rev'd, 306 S.W.3d
when determining the timeliness of the filing,
                                                     753 (Tex. Crim. App. 2010).
the court of appeals relied on an affidavit by a
clerk to show the district clerk's office was            When the case went up to the Texas Court
closed for two days due to inclement weather.        of Criminal Appeals, that court never
State v. White, 248 S.W.3d 310, 312 (Tex. App.-      questioned jurisdiction. State v. White, 306
-Austin 2007, no pet.). The court noted rule         S.W.3d 753, 754-60 (Tex. Crim. App. 2010).
4.1(b) of the Texas Rules of Appellate               Courts may sua sponte address jurisdictional
Procedure expressly authorized the use of            issues because subject matter jurisdiction
affidavits when determining the timeliness of        cannot be conferred by agreement of the
filings. Id. (citing Tex. R. App. P. 4.1(b)). As     parties. State v. Roberts, 940 S.W.2d 655, 657
shown in a subsequent opinion by the court in        (Tex. Crim. App. 1996), overruled on other
the same case, the court drew a distinction          grounds by State v. Medrano, 67 S.W.3d 892,
between the making of an appeal under article        894 (Tex. Crim. App. 2002) (overruling
44.01(d) and the filing of the notice of appeal.     requirement that defendant must allege
                                                     evidence was illegally obtained before the State
    The deadline for filing the notice of appeal
                                                     could take an appeal under article 44.01(a)(5)
in White was January 15, 2007, but due to a
                                                     contesting the granting of a motion to
holiday and two days of inclement weather, the
                                                     suppress). Consequently, if the Austin Court of
deadline for filing was extended until January
                                                     Appeals had incorrectly asserted jurisdiction,
18, 2007, by virtue of rule 4.1 of the Texas
                                                     we would expect the Texas Court of Criminal
Rules of Appellate Procedure, and the State
                                                     [*10] Appeals to have addressed that issue.
thus successfully filed its notice of appeal
                                                     We conclude, therefore, that, at least under
timely on January 18, 2007. White, 261 S.W.3d
                                                     some circumstances, the State may use an
at 66. The problem, however, was not the
                                                     affidavit filed after the deadline to prove its
timeliness of the filing of the notice of appeal
                                                     assertion that it properly made the appeal in
but the timeliness of the making of the appeal
                                                     compliance with article 44.01(d).
under article 44.01(d).
                                                         We nevert hel es s hold White is
    The district attorney signed the notice of
                                                     distinguishable. First, the court in White
appeal but did not date his signature. Id. at 67.
                                                     expressly stated that the State's notice of appeal
Although rule 4.1 extended the time to file the
                                                     was not defective on its face because neither
notice of appeal, the court held that rule 4.1 did
                                                     article 44.01 nor earlier case law required the
not extend the time during which the
                                                     prosecuting attorney to indicate the date on
prosecuting attorney had to make the appeal
                                                     which he signed the notice of appeal. White,
under article 44.01(d); consequently, [*9] the
                                                     261 S.W.3d at 67. In contrast, the notice of
court of appeals abated the appeal and
                                                     appeal in the present case is defective on its
remanded the matter to the trial court to
                                                     face because it is signed by an assistant district
determine whether the district attorney had
                                                     attorney and makes no reference to the
signed the notice of appeal, that is, made the
                                                     prosecuting attorney having authorized the
appeal as contemplated under article 44.01(d),
                                                     appeal. See Muller, 829 S.W.2d at 812. A
by January 15, 2007. Id. "The district attorney
                                                     defective notice of appeal is "not susceptible to
filed an affidavit in the district court stating
                                                     correction through application of the
that he signed the State's notice of appeal on
                                                     'amendment and cure' provisions of the Texas
January 10, 2007, and after a brief hearing, the
                                                     Rules of Appellate Procedure." See id. Article
district court so found." Id. The Austin Court of
                                                     44.01 itself provides no "amendment and cure"
Appeals asserted jurisdiction and went on to
                                                     provision. Tex. Code Crim. Proc. art. 44.01.
affirm the trial court's order on the merits
dismissing the State's indictment. State v.             Second, in Muller, the Texas Court of
White, No. 03-07-00041-CR, 2008 Tex. App.            Criminal Appeals wrote:
                                                   could be clarified with an affidavit after the
             Whenever a question is                expiration of the article 44.01(d) deadline. In
      legitimately raised concerning the           the present case, there is no "legitimately
      prosecuting attorney's personal              raised" concern in the April 7, 2014 notice of
      authorization of a State's appeal,           appeal. It is defective on its face. See Muller,
      the State bears the burden of                829 S.W.2d at 812. Nothing in that document
      proving that [*11] the appeal in             hints in the least [*12] that the district attorney
      question was personally, expressly           authorized this specific appeal. If there is no
      and specifically authorized by the           compliance within the twenty-day window, the
      prosecuting attorney. Thus, the              window is thereafter closed. See Boseman, 830
      appellate record must clearly                S.W.2d at 590-91; Muller, 829 S.W.2d at 813.
      reflect the prosecuting attorney's           At the expiration of the twenty-day deadline,
      personal authorization of the                the State had only a defective notice of appeal
      specific notice of appeal filed in a         on file, which perfected nothing. See State v.
      given case. Without a signature or           Shelton, 830 S.W.2d 605, 606 (Tex. Crim. App.
      other written expressed                      1992) (holding signature stamp of county
      authorization, as reflected in the           attorney authorizing the appeal was ineffective
      appellate record, there would be no          to vest court of appeals with jurisdiction).
      guarantee that the only person
      permitted by statute to make an              Conclusion
      appeal on behalf of the State                    We sustain Palmer's cross-point and
      actually participated in the process.        dismiss the State's appeal for want of
      Evidence of a general delegation             jurisdiction.
      of authority to an assistant does not
      qualify under the statute.                      /s/ Anne Gardner
                                                      ANNE GARDNER
Muller, 829 S.W.2d at 810 n.6. In White the           JUSTICE
district attorney signed the notice of appeal,        PANEL: LIVINGSTON, C.J.; GARDNER
and the State filed the notice of appeal timely.   and WALKER, JJ.
White, 261 S.W.3d at 66-67. The ambiguity--
the "legitimately raised" concern--was whether        PUBLISH
the district attorney made the appeal within the      DELIVERED: June 25, 2015
article 44.01(d) deadline, which, unlike the
filing requirements, could not be extended.
White had a "legitimately raised" concern that
APPENDIX B
