      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00633-CR



                                   The State of Texas, Appellant

                                                   v.

                              John Allen Wachtendorf, Jr., Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
       NO. 13-0197-K277, HONORABLE RICK J. KENNON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                John Allen Wachtendorf, Jr., filed a motion in the district court contending that the

results of a test performed on a sample of his blood should be suppressed. After Wachtendorf filed

his motion, the district court held a hearing to consider the matter. A few months later in another

hearing, the district court informed the parties that after considering the evidence, it concluded that

there were no exigent circumstances justifying the warrantless blood draw and stated that it was

“going to grant the motion to suppress the blood draw.” Upon hearing the district court’s ruling, the

State announced its intention to appeal the ruling.

                On the same day that the district court announced its ruling, it signed an order

granting the motion to suppress. Over a month after the district court made its ruling, the State filed

a motion asking the district court to reconsider its prior ruling. When the district court held a hearing

on the motion, Wachtendorf urged that the State had waived its right to appeal because it did not
timely file its notice of appeal. As support for this, Wachtendorf contended that the district court

had signed an order granting the motion to suppress on the day that it announced its intention to

grant the motion. In response, the State argued that it was unaware of the order. During the hearing,

the district court determined that although it signed the order on the same day that it announced

its ruling, the order was not filed at that time by the district court clerk. After the oversight was

discovered, the previously signed order was filed by the district court clerk, but by that time, 80 days

had passed from the date that the order had been signed. Within a few days of the hearing and the

order being filed, the State filed its notice of appeal.

                After the State filed its appeal, Wachtendorf filed a motion to dismiss contending

that this Court does not have jurisdiction over this appeal because the appeal is untimely. The Code

of Criminal Procedure sets out a deadline by which the State may appeal a trial court’s order granting

a motion to suppress. Tex. Code Crim. Proc. art. 44.01(a)(5), (d). In particular, the Code explains

that the State may not “make an appeal . . . later than the 20th day after the date on which the order

. . . is entered by the court.” Id. (emphasis added). In light of this deadline, Wachtendorf insists that

the State’s appeal is untimely because it was not filed within 20 days of the district court signing

the order granting the motion to suppress. On the other hand, the State contends that “it is

fundamentally unfair” to deny the State “its right to appeal when it had no notice of a signed order

from which it could appeal.” When presenting this argument, the State also argues that the alleged

unfairness is further compounded by the fact that the State cannot appeal oral rulings granting a

motion to suppress and, therefore, has to wait until it learns that the trial court has, in fact, signed

the order. See State v. Sanavongxay, 407 S.W.3d 252, 258 (Tex. Crim. App. 2012) (explaining that

although State may appeal certain orders by trial courts, “[a]n oral ruling is not ‘an order’”).

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                When deciding what the phrase “entered by the court” means under article 44.01(d),

the court of criminal appeals determined that the phrase means “the signing of an order by the trial

judge.” State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex. Crim. App. 1991). In other words, the court

determined that “the appellate timetable for the State under Art. 44.01(d) begins running from the

date the trial judge signs his or her order.” Id. at 403; see also id. at 402 (explaining that “[e]stablishing

a definite starting date for calculating appellate timetables serves the interests of all parties”).

Although a majority of the court joined that result, a concurring opinion expressed the belief that

the more appropriate construction of article 44.01(d) starts the running of the appellate deadline

on “the date the signed order is file marked by the clerk.” Id. at 405 (McCormick, J., concurring).

                A few months later, the court reaffirmed the majority’s position. See State ex rel.

Sutton v. Bage, 822 S.W.2d 55, 56-57 (Tex. Crim. App. 1992) (interpreting phrase “entered by the

court” as meaning signing of order by trial judge and concluding that State’s notice of appeal was

not timely). Accompanying the majority opinion was a dissenting opinion criticizing the majority’s

holding and the reasoning from Rosenbaum. See id. at 57 (McCormick, J., dissenting) (explaining

that “case presents in dramatic fashion the mischief that is potential in this Court’s holding in”

Rosenbaum). When criticizing the majority’s reasoning, the dissenting justice expressed that, like

in the present case, the State did not learn that the order had been signed until after the appellate

deadline had run. Id. at 58. Accordingly, the dissenting justice warned that the majority’s construction

will deny a party the “right to appeal in any case where a judge, without notice to the party, signs an

appealable order which does not get filed (entered) of record within the time required for notice of

appeal.” Id. Moreover, the dissenting justice reasoned that “when the law imposes a time limitation



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upon a party, it should concomitantly provide some notice to that party” and that “[t]he ‘signing’ of

an order is not notice.” Id.

               Despite the criticisms expressed against the holding in Rosenbaum, the court has

recently sanctioned that holding again. See Sanavongxay, 407 S.W.3d at 258-59 (explaining that

article 44.01(d) authorizes State to appeal orders and that “our precedent requires that an order be

in writing” and signed by trial court); see also State v. Martinez, No. 04-14-00359-CR, 2014 Tex.

App. LEXIS 7138, at *2-3 (Tex. App.—San Antonio July 2, 2014, no pet.) (mem. op., not designated

for publication) (dismissing State’s appeal for want of jurisdiction when notice of appeal was not

timely); State v. Rico, No. 07-07-0092-CR, 2007 Tex. App. LEXIS 4849, at *3 (Tex. App.—Amarillo

June 21, 2007, order) (not designated for publication) (explaining that deadline under article 44.01(d)

is more than procedural one and is instead substantive limit on State’s authority to appeal, meaning

that day after deadline has passed, State’s ability to appeal “ceases and may not be revived”).

               In light of the governing case law and given that the State’s notice of appeal was not

filed within 20 days of the district court signing its order granting the motion to suppress, we must

conclude that the State’s appeal was not timely filed. See Tex. Code Crim. Proc. art. 44.01(d);

Rosenbaum, 818 S.W.2d at 402. Although we recognize the limitations imposed by the court of

criminal appeals’ construction, we are nonetheless bound by that controlling precedent.

               For these reasons, we grant Wachtendorf’s motion and dismiss the State’s appeal

for want of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (providing

that “[a] timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction”).




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                                          David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Dismissed for Want of Jurisdiction

Filed: February 26, 2015

Do Not Publish




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