
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-07-00041-CR


The State of Texas, Appellant

v.

Jimmie Dale White, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 1030299, HONORABLE JON N. WISSER, JUDGE PRESIDING


O P I N I O N

The State appeals an order dismissing the indictment in this cause.  Appellee Jimmie
Dale White's motion to dismiss the State's appeal for want of jurisdiction was overruled without
written order on July 23, 2007.  He has filed a motion for rehearing asking the Court to reconsider
the overruling of his motion.
The district court's order dismissing the indictment was signed on
December 31, 2006.  The State was required to "make" and file its notice of appeal no later than
fifteen days thereafter, or January 15, 2007.  See Tex. Code Crim. Proc. Ann. art. 44.01(d)
(West 2006); Tex. R. App. P. 26.2(b).  The State's notice of appeal was filed on January 18, 2007. 
The attached certificate of service states, among other things, "This State's notice of appeal is timely
if filed by January 18, 2007, since the Travis County Clerk's office was closed on January 15, 2007,
in observance of MLK day, and was closed on January 16 and 17, 2007, due to inclement weather." 
See Tex. R. App. P. 4.1.  The certificate was signed by Assistant District Attorney Holly E. Taylor. (1)
In his motion to dismiss, White argued that counsel's certificate was inadequate to
satisfy rule 4.1(b) because it did not state that the district clerk's office, the office in which the notice
was filed, had been closed due to inclement weather. (2)  In its response to the motion, the State argued
that the omission of the word "district" in counsel's certificate was a clerical or typographical error. 
In addition, the State asked the Court to take judicial notice that the Travis County District Clerk's
office was closed on January 16 and 17, 2007.  Attached to the motion (and also to the State's
response) was an affidavit signed by Michelle Brinkman, Chief Deputy District Clerk, stating that
"[o]n January 16th and 17th of 2007, the Travis County District Clerk's office was closed due to
inclement weather."  The motion to take judicial notice was granted on the same day White's motion
to dismiss was overruled.
In his motion for rehearing, White argues that consideration of Brinkman's affidavit
is foreclosed by the holding in State v. Muller, 829 S.W.2d 805, 812-13 (Tex. Crim. App. 1992). 
We disagree.  In Muller, the State's original, timely notice of appeal was not signed or authorized
by the elected district attorney, as required by article 44.01.  Id. at 810.  Eight months later, the State
sought to cure this defect by filing an amended notice of appeal.  Id. at 806.  The court of criminal
appeals held that the amended notice of appeal was ineffective because the statutory fifteen-day time
limit for the prosecuting attorney to make an appeal under article 44.01 is a substantive limitation
that is not susceptible to correction by the "amendment and cure" provisions of the
appellate rules.  Id. at 812.  
In the instant case, the State has not sought to amend its notice of appeal outside the
fifteen-day time limit.  Rather, the question presented is whether the State's one and only notice of
appeal was filed timely.  Contrary to White's argument, Muller does not hold that the appellate
record cannot be supplemented outside the fifteen-day filing period in order to determine the
applicability of rule 4.1(b).  In fact, the rule expressly provides that the closing or inaccessibility of
the clerk's office may be proved or controverted by a certificate of the clerk or counsel, a party's
affidavit, or other satisfactory proof.  Tex. R. App. P. 4.1(b).
We also find no support for White's argument in Johnson v. State, 84 S.W.3d 658
(Tex. Crim. App. 2002).  In that case, the court construed a former appellate rule that required a
defendant with a limited right of appeal to recite in his notice of appeal that the prerequisites for
appeal had been met.  See id. at 659 n.1.  The court held that if the required recitals were not
contained in the notice of appeal, the court of appeals could not look elsewhere in the record to
determine if the prerequisites had been satisfied.  Id. at 660.  We do not understand Johnson to
prohibit a court of appeals from looking outside the notice of appeal to determine whether an
appellate deadline fell on a weekend, legal holiday, or day the clerk's office was closed due
to bad weather. 
We also understand White to argue that rule 4.1(b) is inapplicable to a State's appeal. 
Again, we disagree.  Because the fifteen-day time limit in article 44.01(d) is a substantive limitation
on the State's right of appeal, it cannot be extended by the appellate court pursuant to rule 26.3
(motions for extension of time).  See Muller, 829 S.W.2d at 812 (citing State v. Demaret,
764 S.W.2d 857, 858 (Tex. App.--Austin 1989, no pet.)).  However, the State has not sought an
extension of the deadline for perfecting its appeal.  Rule 4.1 does not extend the substantive time
limit for the State to perfect an appeal, but merely provides for the eventuality of the deadline falling
on a Saturday, Sunday, legal holiday, or day in which the clerk's office is closed or inaccessible due
to inclement weather.  As its title states, rule 4.1 provides guidelines by which established time
periods are to be computed.  The plain language of article 44.01(d) does not preclude the application
of rule 4.1 in calculating whether the State's notice of appeal was filed timely.
Next, White argues that Brinkman's affidavit is inadequate because it merely states
that the district clerk's office was closed due to inclement weather on the days in question.  He
complains that the affidavit does not state that the office was closed during regular business hours
for the entirety of the two days or recite the legal authority by which it was closed.  We decline to
read the affidavit so narrowly.  Reasonably construed, the affidavit is sufficient to support the
conclusion that the Travis County District Clerk's office was closed all day due to the weather on
January 16 and 17, 2007.  We assume that the office was closed on the authority of the Travis
County District Clerk, but it is sufficient for rule 4.1(b) that the office was closed due to inclement
weather regardless of who ordered the closing.
Courts of appeals must construe the appellate rules reasonably and liberally so that
the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose
of a rule.  Few v. State, No. PD-0866-06, Tex. Crim. App. LEXIS 317, at *13 (Tex. Crim. App. 
Mar. 7, 2007) (citing Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)).  We conclude that
counsel's certification attached to the notice of appeal and the affidavit of the deputy district clerk
attached to both the State's response to the motion to dismiss and to the State's motion to take
judicial notice are sufficient to make a prima facie showing that the district clerk's office was closed
due to inclement weather on January 16 and 17, 2007.  White has made no probative showing to the
contrary. (3)  Applying rule 4.1(b), the State's notice of appeal was timely filed on January 18, 2007.
However, compliance with rule 4.1(b) does not obviate the strict requirement of
article 44.01(d) that the elected district attorney "make" the State's appeal - by signing or personally
authorizing the notice of appeal - within fifteen days of the trial court's order, January 15.  See
Muller, 829 S.W.2d at 810.   Relying on article 44.01(d), White raises in his motion for rehearing
an issue not previously presented in his motion to dismiss.  He observes that the district attorney's
signature on the notice of appeal is not dated.  Because the notice of appeal was not filed until
January 18, he urges us to infer that the district attorney failed to "make" the appeal timely.   
Under the unusual circumstances of this case, we cannot discern from the record
whether the elected district attorney timely "made" the State's appeal.  We note that the assistant
district attorney's certificate of service, which was obviously prepared on January 18, is on a separate
sheet of paper attached to the notice of appeal signed by the district attorney.  These circumstances
are equally consistent with the district attorney having signed the notice within the fifteen-day period
as they are him signing it on or near January 18.   While it may be prudent for the district attorney
to date his signature on a State's notice of appeal to avoid future disputes, there is nothing in article
44.01(d) or the appellate rules that requires it.  Nor do these provisions yield any basis for us to draw
presumptions here as to when the district attorney signed the notice.  
This unresolved fact--whether the elected district attorney "made" the State's appeal
within the strict fifteen-day deadline of article 44.01(d)--controls our subject-matter jurisdiction
over the State's appeal.  See id. at 812-13.  In similar instances, appellate courts have abated pending
appeals and remanded unresolved jurisdictional fact questions to the trial court for resolution.  See
Peavy v. Texas Home Mgmt., Inc., 16 S.W.3d 104, 105 Tex. App.--Houston [1st Dist.] 2000, no
pet.) (abating for findings of fact on when appellee and counsel received notice of appellate
judgment).  We will do the same here.  Accordingly, we reserve a final ruling on White's motion for
rehearing, abate the appeal, and remand the cause to the district court.  That court shall take evidence
and make a written finding regarding the date the elected district attorney signed the State's notice
of appeal.  A supplemental record containing the district court's written finding of fact and a
transcription of any hearing shall be filed in this Court no later than fifteen days after the date
of this opinion.
				__________________________________________
				Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Abated
Filed:   August 31, 2007
Publish
1.        The notice of appeal itself was signed by District Attorney Ronald Earle.
2.        White does not dispute that January 15, 2007, was a legal holiday.
3.        White refers us to evidence that the Travis County Commissioner's Court met on January 16
and 17, 2007.  This is not evidence that the district clerk's office was open on those dates.

