                                                                            ACCEPTED
                                                                        03-15-00620-CR
                                                                                7425375
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                  10/19/2015 9:12:20 AM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
                         NO. 03-15-00620-CR

                   IN THE COURT OF APPEALS             FILED IN
                                                3rd COURT OF APPEALS
                             FOR THE                 AUSTIN, TEXAS
         THIRD SUPREME JUDICIAL DISTRICT OF         TEXAS
                                                10/19/2015 9:12:20 AM
                            AT AUSTIN               JEFFREY D. KYLE
                                                         Clerk
__________________________________________________________________

                   NO. D-1-DC-09-900185-CR

               IN THE 167TH DISTRICT COURT
                 OF TRAVIS COUNTY, TEXAS
__________________________________________________________________

                         STATE OF TEXAS,
                           APPELLANT

                                 V.

                          DENNIS DAVIS,
                            APPELLEE
__________________________________________________________________

     APPELLEE’S MOTION TO DISMISS THE STATE’S APPEAL
__________________________________________________________________


                               LINDA ICENHAUER-RAMIREZ
                               ATTORNEY AT LAW
                               1103 NUECES
                               AUSTIN, TEXAS 78701
                               TELEPHONE: 512-477-7991
                               FACSIMILE 512-477-3580
                               EMAIL: LJIR@AOL.COM
                               SBN: 10382944


                                ATTORNEY FOR APPELLEE
TO THE HONORABLE THIRD COURT OF APPEALS:

      COMES NOW, Dennis Davis, Appellee, by and through his attorney

of record, Linda Icenhauer-Ramirez, and files this his Motion to Dismiss the

Appeal and in support thereof, would show the Court the following:

                                      I.

      That the above-styled and numbered cause is styled The State of

Texas v. Dennis Davis, Cause Number D-1-DC-09-900185-CR in the 167th

Judicial District Court of Travis County, Texas.     On September 9, 2015,

the trial court signed and filed an Order Setting Aside Indictment For Failure

to Afford Constitutional Right to a Speedy Trial. (C.R. 684) On September

10, 2015, the trial court signed and filed its Findings of Fact and

Conclusions of Law Regarding Defendant’s Motion to Set Aside for

Violation of Sixth Amendment. (C.R. 685-691)

                                     II.

      The murder with which appellee was charged occurred o/a October

13, 1985.   Twenty-four years later, in June of 2009, appellee was indicted

for that murder. Two years later, appellee was tried and convicted of murder

and assessed a prison sentence of thirty-six years imprisonment. That

conviction was reversed on appeal and remanded back to the trial court by

the Third Court of Appeals because of ineffective assistance of counsel.



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Davis v. State, 413 S.W.3d 816 (Tex.App.-Austin, pet. ref.) on August 30,

2013.



                                     III.

        On November 19, 2014, appellee filed a Motion to Set Aside

Indictment For Failure to Afford a Constitutional Right to Speedy Trial.

(C.R. 204-399).   A Second Motion to Set Aside Indictment For Failure to

Afford a Constitutional Right to Speedy Trial was filed on July 14, 2015.

(C.R. 455-678) On September 9, 2015, the trial court granted appellee’s

motion. (C.R. 684) On September 10, 2015, the trial court signed and filed

its Findings of Fact and Conclusions of Law Regarding Defendant’s Motion

to Set Aside for Violation of Sixth Amendment.          (C.R. 685-691) On

September 30, 2015, the State filed a written notice of appeal. This notice of

appeal stated that the State sought to appeal the order dismissing the

indictment and saying that a copy of that order was attached to the notice of

appeal.   Attached to this notice of appeal was a copy of the trial court’s

Findings of Fact and Conclusions of Law Regarding Defendant’s Motion to

Set Aside for Violation of Sixth Amendment (C.R. 754-762) On October

1, 2015, the State filed another notice of appeal saying that the State sought

to appeal the order dismissing the indictment and saying that a copy of that



                                      3
order was attached to the notice of appeal. Attached to this notice of appeal

was a copy of the trial court’s Order Setting Aside Indictment For Failure to

Afford Constitutional Right to Speedy Trial. (C.R. 764)

                                        IV.

THE STATE’S APPEAL MUST BE DISMISSED BECAUSE UNDER
ART. 44.01, V.A.C.C.P, THE STATE HAS NO RIGHT TO APPEAL A
TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF
LAW AFTER AN INDICTMENT HAS BEEN SET ASIDE .

        Art. 44.01, V.A.C.C.P. gives the State a limited right to appeal an

order of a court in a criminal case.         The State may appeal from an order

that:

        (1) dismisses an indictment, information, or complaint or any
        portion of an indictment, information, or complaint;

        (2) arrests or modifies a judgment;

        (3) grants a new trial;

        (4) sustains a claim of former jeopardy;

         (5) 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; or

         (6) is issued under Chapter 64.

In this cause, the State seeks to appeal the trial court’s findings of fact and

conclusions of law regarding its order setting aside the indictment because of

                                         4
the denial of appellee’s right to a speedy trial.      Art. 44.01, V.A.C.C.P.

Such an order is not one of those listed in Art. 44.01 and thus does constitute

the type of order the State can appeal.

      On October 15, 2015, the State filed a motion to consolidate the

appeal in this cause with the State’s appeal in Cause No. 03-15-00616-CR,

an appeal from the trial court’s dismissal of the indictment. In its motion to

consolidate, the State asserted that as part of the appeal from the order of

dismissal, the State “intends to challenge the factual findings and legal

conclusions that are set forth in the Findings.” Again, such a challenge to

the trial court’s findings of fact and conclusions of law is not one of the

narrow grounds of appeal afforded by Art. 44.01, V.A.C.C.P.           Appellee

asserts that consolidation of this appeal with Cause No. 03-15-00616-CR is

not the proper remedy for the State’s error.

      Because the legislature did not give the State the right to appeal a trial

court’s findings of fact and conclusions of law, the proper remedy is to

dismiss this appeal.

                                      V.

THE STATE’S SECOND NOTICE OF APPEAL SHOULD BE
STRUCK    BECAUSE       IT FAILS TO COMPLY WITH
TEX.R.APP.PROC. 25.2(F).

      Appellant acknowledges that the State filed a second notice of appeal



                                          5
in this cause purporting to appeal the trial court’s order dismissing the

indictment.   Appellant asserts that this second notice of appeal should be

struck in that the State’s second notice of appeal is not in compliance with

Tex.R.App.Proc. 25.2(f) in that it was not filed as an amended notice of

appeal.

      WHEREFORE, PREMISES CONSIDERED, appellee respectfully

requests that this Honorable Court dismiss the State’s appeal in this cause.

                                       Respectfully Submitted,

                                       /s/ Linda Icenhauer-Ramirez
                                       LINDA ICENHAUER-RAMIREZ
                                       Attorney at Law
                                       1103 Nueces
                                       Austin, Texas 78701
                                       (512) 477-7991
                                       FAX #: (512) 477-3580
                                       SBN: 10382944
                                       EMAIL: ljir@aol.com

                                       ATTORNEY FOR APPELLEE



                   CERTIFICATE OF COMPLIANCE

     I hereby certify that this motion was computer generated and contains
1092 words, as calculated by the word count function on my computer.

                                       /s/ Linda Icenhauer-Ramirez
                                       LINDA ICENHAUER-RAMIREZ




                                       6
                     CERTIFICATE OF SERVICE

       I, Linda Icenhauer-Ramirez, hereby certify that a true and correct
copy of the foregoing Appellee’s Motion to Dismiss the State’s Appeal was
e-served to Scott Taliaferro of the Travis County District Attorney's Office
on this the 19th day of October, 2015.

                                     /s/ Linda Icenhauer-Ramirez
                                     LINDA ICENHAUER-RAMIREZ




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