                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00331-CR
                           ____________________

                      THE STATE OF TEXAS, Appellant

                                         V.

                    K & L CONTRACTORS, INC., Appellee
_______________________________________________________            ______________

                     On Appeal from the 1A District Court
                            Tyler County, Texas
                           Trial Cause No. 11340
________________________________________________________             _____________

                                     ORDER

      Appellee, K & L Contractors, Inc. filed a motion to dismiss the State’s

appeal of the trial court’s dismissal, with prejudice, of K & L’s indictment for

intentionally or knowingly discharging a waste or pollutant. On appeal, K & L

contends that the State failed to properly perfect its appeal because: (1) the State

failed to appeal the trial court’s June 2014 order quashing the indictment within the

time allowed for perfecting appeals; and (2) the State failed to give proper notice

of its intent to appeal from the trial court’s September 2014 order dismissing the

                                         1
indictment with prejudice because the notice of appeal from that order was signed

by the assistant criminal district attorney, not the elected prosecuting attorney as

required by article 44.01 of the Texas Code of Criminal Procedure. In response to

K & L’s motion to dismiss, the State argues that the trial court’s order of

September 2014 is appealable, and that the notice that it filed to appeal that ruling,

although signed by the assistant criminal district attorney, was an appeal that the

elected prosecuting attorney authorized.

      We conclude that the State has demonstrated that the elected prosecuting

attorney authorized the assistant criminal district attorney to pursue an appeal from

the trial court’s September 2014 order. Consequently, we have jurisdiction to

decide the appeal before us. However, by exercising jurisdiction over the appeal,

we have not resolved K & L’s argument that the trial court had no jurisdiction to

act when it rendered the September 2014 order. We anticipate the parties will

address that issue in the briefs that are filed on the merits of the State’s appeal.

Accordingly, we deny the motion to dismiss the appeal.

                                    Background

      The State indicted K & L for illegal dumping. The indictment was amended

on July 23, 2012, to allege that Appellee “beginning on or about the 30th day of




                                           2
September A.D. 2006 and continuing, and before the presentment of this

indictment,”

      in violation of Texas Water Code Section 7.145, intentionally or
      knowingly illegally discharged (depositing, conducting, draining,
      emitting, throwing, running, allowing to seep, releasing or disposing)
      or allowed the discharge, and continues to discharge or allow the
      discharge, of a waste or pollutant, namely, oily waste including
      benzene, into or adjacent to water in the State, and specifically those
      in, on, under, or adjacent to a tract of 56 acres, more or less, owned by
      Robert Sheffield, in the Town Bluff Community in Tyler County,
      where the Longhorn #1 gas/oil well was drilled, that caused or
      threatened to cause water pollution (altering the physical, chemical, or
      biological quality of, or contamination of water that renders the water
      harmful, detrimental, or injurious to humans, animal life, vegetation,
      or property to public health, safety or welfare, or impairs the
      usefulness or the public enjoyment of the water for any lawful or
      reasonable purpose), said discharge was made without a permit, order,
      or rule of the appropriate regulatory agency, namely, the Texas
      Commission on Environmental Quality or the Railroad Commission
      of Texas, authorizing such discharge.

      On February 7, 2014, K & L filed a fifth motion to quash the indictment.

The motion to quash complained that the indictment violated the pleading

requirements of the Texas Code of Criminal Procedure because the indictment

failed to allege conduct that occurred before presentment of the indictment, failed

to allege conduct that occurred within the statute of limitations, and failed to allege

sufficient facts to toll limitations. See Tex. Code Crim. Proc. Ann. arts. 21.02(6),

21.03, 21.04, 21.11 (West 2009), 27.08, 27.09 (West 2006). K & L repeated the


                                          3
complaints that it raised about the indictment in a separate motion to dismiss the

criminal case, which it filed on the same day that it filed its fifth motion to quash.

      The trial court conducted a hearing on June 23, 2014. During the hearing,

the prosecutor conceded that any discharge that occurred more than three years

prior to the date of the indictment was barred by limitations, but argued that each

day a polluting discharge occurred the discharge resulted in a separate offense.

Defense counsel argued that an allegation of passive continuing pollution without

affirmative human conduct during the limitations period would not support an

indictment. At the conclusion of the hearing, the trial court signed an order

granting the motion to quash the indictment.

      Several months later, the trial court signed an order granting the motion to

dismiss. The order granting the motion to dismiss, signed on September 18, 2014,

states the trial court granted the motion “based on the statute of limitations.” The

September 2014 order dismissed the case with prejudice.

      Seven days later, the State filed a notice of appeal. An assistant criminal

district attorney signed the notice, and the notice recites that the State desires to

appeal the order the trial court signed in September.




                                           4
                              Authorization to Appeal

      Appellee contends the State’s notice of appeal failed to invoke our appellate

jurisdiction because the notice does not indicate that the elected prosecuting

attorney authorized the appeal and does not contain a certification regarding the

appeal that is required under article 44.01(a)(5) of the Code of Criminal Procedure.

Compare Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) with id. art. 44.01(a)(5).

      Jurisdiction over an appeal filed by the State is invoked by a timely, written

notice of appeal. State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000). “[I]n

State-prosecuted appeals, the failure of the elected prosecuting attorney, as

opposed to an assistant, to make the appeal is a jurisdictional defect.” Id. Here, the

question of whether the district attorney authorized the assistant district attorney to

appeal the trial court’s ruling concerns a matter that is not apparent from the

clerk’s and reporter’s record that were filed in connection with the State’s appeal.

      However, the State filed additional documents that it suggests we consider in

deciding K & L’s motion. The State’s response to K & L’s motion to dismiss

includes the affidavit of Joe R. Smith, the Tyler County Criminal District Attorney.

See Tex. R. App. P. 10.2. Smith’s affidavit indicates that Smith authorized the

attorney who signed the notice of appeal to appeal the trial court’s decision to




                                          5
dismiss the indictment, and that Smith authorized the appeal before the assistant

criminal district attorney filed the notice.

      In our opinion, the State may demonstrate that the district attorney

personally approved the appeal by supplementing the appellate record with an

affidavit showing that the district attorney did personally approve of the filing of

the appeal while the appeal could be timely filed in the window for filing such an

appeal. See Tex. R. App. P. 44.3 (requiring appeals court to allow a party a

reasonable time to correct or amend defects or irregularities before dismissing the

appeal for a formal defect or irregularity in appellate procedure); State v. Muller,

829 S.W.2d 805, 812 n.9 (Tex. Crim. App. 1992) (noting that if the prosecuting

attorney had personally approved the notice, the record could be supplemented

with evidence or an affidavit to that effect).

      Although the facts that resolve the question of whether the appeal was

authorized by the district attorney were not developed in the trial court, the issue is

one of appellate procedure. With respect to defects in procedure, Rule 44.3 of the

Texas Rues of Appellate Procedure requires that we not dismiss an appeal for

formal defects or irregularities in appellate procedure without allowing a

reasonable time to correct or amend the defects or irregularities. See Tex. R. App.

P. 44.3. Based on this rule, we have considered the affidavit filed by the State; and,

                                               6
based on Smith’s affidavit, we conclude that we have jurisdiction over the State’s

appeal. See id.; see generally Tex. Gov’t Code Ann. § 22.220(c) (West Supp.

2014) (although this section applies only to civil cases, this section authorizes

appeals courts to look to affidavits or other evidence needed to determine whether

jurisdiction exists over the appeal).

      K & L also argues the State’s notice of appeal lacks the certification from

the prosecuting attorney that is required by article 44.01(a)(5) of the Code of

Criminal Procedure. See Tex. Code Crim. Proc. Ann. art 44.01(a)(5). According to

K & L, the absence of the proper certificate required by statute cannot be cured by

being supplemented. However, the order at issue in the appeal is an order

dismissing an indictment. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1). And,

even if K & L is correct that the June 2014 order effectively dismissed the case, the

September 2014 order is nonetheless an order modifying the judgment, and such

orders are also appealable. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(2).

Moreover, the September 2014 order is not an order granting a motion to suppress

evidence, a confession, or an admission; consequently, the certification required by

the provision of the statute on which K & L relies is not required. Compare Tex.

Code Crim. Proc. Ann. art. 44.01(a)(1), (2) with id. 44.01(a)(5).




                                          7
       Having considered K & L’s arguments that pertain to the State’s appeal from

the September 2014 order, we conclude that we have jurisdiction over that aspect

of the appeal.

                              Issue for Briefs on the Merits

       K & L has also argued that the trial court’s September 2014 order is void.

According to K & L, the trial court no longer had jurisdiction over the case when it

signed that September 2014 order. Although we have denied K & L’s motion to

dismiss, we do not reach its claim that the trial court’s September 2014 order is

void. That is a matter the parties should address in the briefs they file on the merits

of the issues.

       For the reasons we have explained, K & L’s motion to dismiss the appeal is

denied. The State’s brief on the merits is due February 17, 2015. Appellee’s brief is

due thirty days after the State files its brief.

       ORDER ENTERED January 15, 2015.

                                                     PER CURIAM

Before McKeithen, C.J., Horton and Johnson, JJ.




                                             8
