                                                                                                ACCEPTED
                                                                                           03-14-00633-CR
                                                                                                  3954837
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                      1/29/2015 4:19:52 PM
                                                                                         JEFFREY D. KYLE
                                                                                                    CLERK
                                No. 03-14-00633-CR

                                       In the                          FILED IN
                                                                3rd COURT OF APPEALS
                  Court of Appeals for the Third District of Texas AUSTIN, TEXAS
                                     at Austin                  1/29/2015 4:19:52 PM
                         ___________________________              JEFFREY D. KYLE
                                                                         Clerk
                On Appeal from the 368th Judicial District Court, of
                            Williamson County, Texas
                           In Cause No. 13-0197-K277
                       ____________________________

                            THE STATE OF TEXAS
                                   Appellant
                                      v.
                      JOHN ALLEN WACHTENDORF, JR.,
                                   Appellee
                        _____________________________

      STATE’S RESPOSNSE TO APPELLANT’S MOTION TO DISMISS
                  _____________________________

TO THE HONORABLE COURT:

      COMES NOW Appellant, the State of Texas, by and through the

undersigned assistant district attorney, and files this response to Appellant’s

Motion to Dismiss.

      The State contends that this Court should hear this appeal because it is

fundamentally unfair to deny any party, including the State, its right to appeal

when it had no notice of a signed order from which it could appeal. This is

particularly true when the State, unlike a defendant, cannot appeal an oral ruling,

leaving the State no option for appeal prior to the signing of said order.
         In support hereof, Appellant would show this Court the following:

                                                                I.

         Appellee filed his Motion to Suppress on January 16, 2014. The trial court

held a hearing on the Motion to Suppress on February 14, 2014, but did not

announce its ruling until a further hearing on July 7, 2014. This announcement

was made orally, in open court, and the State immediately announced its desire to

appeal the trial court’s decision. R.R. vol. 3 p.51. On August 19, 2014, the State

filed a Motion to Reconsider the granting of the motion to suppress.

         The trial court subsequently held a hearing on the State’s motion on

September 25, 2014 and heard additional evidence regarding its decision. At the

conclusion of that hearing, trial counsel for Appellee argued that the state had

waived its right to appeal by failing to timely file notice of appeal. R.R. vol. 4 p.64.

The trial court then stated, “the only issue is whether it needs to be in writing,”

indicating the court was not clear on whether there yet existed a signed order. R.R.

vol. 4 p.65. Defense counsel then stated that there was, in fact, a signed, written

order, dated July 7, 2014, to which both attorneys representing the State

immediately responded they had no notice or knowledge of the existence of any

such order. R.R. vol. 4 p.66. The trial court looked, then found the order and noted

that it had not been file-stamped by the clerk. R.R. vol. 4 p.67. That signed order
1
  Although Appellee attached portions of the transcript as exhibits, Appellant will cite directly to the reporter’s
record for clarity as Appellant notes that the reporter’s record was filed with the court in this case on January 9,
2015.
was then filed by the clerk on September 25, 2014, eighty days after the judgment

was apparently signed. The State filed its notice of appeal five days after this

hearing on September 30, 2014.

                                               II.

      While Appellee cites Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App.

1993) for the general proposition that an oral ruling prevails over a written order,

the court in Rodarte was addressing a defendant’s right to appeal and drew a

distinction between the procedures for that right and the State’s right to appeal.

The court specifically stated:

  The court of appeals construed the rule to provide: “When a defendant appeals from a
  conviction in a criminal case, the time to file notice of appeals runs from the date sentence
  is imposed or suspended in open court. When some other action of the trial court is
  appealed, such as that from which the State may appeal in article 44.01[, V.A.C.C.P.] or a
  habeas corpus matter from which the applicant may appeal, the appellate timetable begins
  with the signing of the particular order.² Rodarte, supra at 784-85.” We agree. Rodarte at
  109.

and
  Appellant reminds us that in State v. Rosenbaum, 818S.W.2d 398 (Tex.Cr.App. 1991), we
  held that a State’s notice of appeal from an order dismissing a portion of the indictment
  begins on the day the trial court signed the order. For purposes of Article 44.01(d),
  V.A.C.C.P., we construed entered by the court to mean signed by the trial judge. Rodarte
  at 110.

The Rodarte court then held that the Rosenbaum decision’s requirement of written

order for State’s ability to appeal “does not impede our conclusion that notice of

appeal following a judgment of conviction must be filed within thirty days after the

sentence is imposed or suspended in open court, according to the plain terms of
Rule 41(b)(1).” Id.

      Under Rodarte and Rosenbaum, the latter being the primary case on this

issue generally, the Court of Criminal Appeals has held that an order must be

signed to be entered for the purposes of starting the calculation of the State’s

deadline to file its notice of appeal. Further, more recently in 2012, the Court of

Criminal Appeals again reaffirmed this general principle in holding, directly on

point in this case, that the State cannot appeal an oral ruling granting a motion to

suppress. State v. Sanavongxay, 407 S.W.3d 252 (Tex. Crim. App. 2012).

Therefore, the State could not appeal the trial court’s oral pronouncement granting

the Motion to Suppress on July 7, 2014.

      Further, it is clear from the record that the State expressed in open court,

without objection or contest, that the State’s attorneys received no notice that the

trial court actually signed any such order. In fact, the State filed its notice of

appeal in this cause, five days after it learned, on September 25, 2014, of the

existence of the signed order.

      The Court of Criminal Appeals did hold in State ex rel Sutton v. Bage, 822

S.W.2d 55 (Tex. Crim. App. 1992) that the State’s notice of appeal was untimely

where a clerk did not file an appealable order until four days after the trial judge

signed it and where the date the State filed their notice of appeal was late based off

the date the order was signed but not off the date the order was filed by the clerk.
       However, this decision came in the context of a Writ of Mandamus, a

“drastic remedy” requiring “a clear right to relief sought,” such that the relator is

“seeking to compel a ministerial duty.” Id at 57. Certainly, whether to grant that

kind of relief is a different question than whether the State is entitled to relief when

the actions or inaction of a court or a clerk work to deny the State notice of its

ability to assert its right to appeal.

       Presiding Judge McCormick’s dissent in Sutton, succinctly describes the

very problem at issue here, saying,

   when the law imposes a time limitation upon a party, it should concomitantly provide

  some notice to that party . . . Clearly, a party may be denied a 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 at 58.

       The Court of Appeals in Amarillo, cited this dissent, in finding a State’s

notice of appeal timely where the court directed its ruling to become entered and

final after singing, State v. Poe, 900 S.W.2d 442, 444 (Tex. App.—Amarillo 1995).

In so doing, the Amarillo Court said, “Indeed, any other result would be

tantamount to allowing a trial court to implicitly and lawfully deny the State its

statutory right to appeal specific criminal matter by signing yet withholding the

order until the appellate period lapsed. A court’s inherent power should not extend

so far.” Id.

       Appellee is correct that State v. Cowsert, 207 S.W.3d 347 (Tex. Crim. App.
2006) makes clear that the hearing held on September 25, 2014, in response to the

State’s Motion to Reconsider does not change the statutory limits on the State’s

right to appeal. Rather, that hearing merely provided the trial court with additional

evidence on the merits of the Motion to Suppress. Appellee is also correct that

State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006), makes clear the trial

court’s failure to provide the findings of fact and conclusions of law the State

requested does not change the requirement that the State file its notice of appeal

timely.

      None of that, however, changes the fundamental fact that the State received

no notice of the signing of the order and had no other way to effectively assert its

right to appeal the trial court’s ruling other than to file timely notice of appeal from

a signed, written order. The fact that the State did file its notice of appeal five days

after becoming aware of the signed, written order, is evidence both of its desire to

appeal and its attempt to comply with the rules of appellate procedure given the

circumstances in this case.

          The State here is in exactly the situation that so worried Judge McCormick

in his dissent in Sutton. To dismiss the instant appeal as Appellee requests would

defy the fundamental and obvious principle of justice that a deadline to assert a

right is only enforceable upon notice to the party having such a right that the clock

on that deadline has begun ticking. The Amarillo Court of Appeals was persuasive
and correct when it stated in Poe that the no court’s power should extend to the

point of denying a party its right simply by withholding that notice.

      This court should not, in the name of clarity of rules and process, work such

an unfair denial of any party’s right to appeal.

                                             III.

      WHEREFORE PREMISES CONSIDERED, Appellant respectfully requests

that this Court deny Appellee’s Motion to Dismiss.

                                               Respectfully submitted,

                                               Jana Duty
                                               District Attorney
                                               Williamson County, Texas
                                               /s/ John C. Prezas
                                               John C. Prezas
                                               Assistant District Attorney
                                               State Bar Number 24041722
                                               405 Martin Luther King #1
                                               Georgetown, Texas 78626
                                               (512) 943-1248
                                               (512) 943-1255 (fax)
                                               jprezas@wilco.org

                                Certificate of Service
      This is to certify that on January 29, 2015, a copy of the foregoing motion
was sent to Appellee’s attorney of record, Ms. Kristen Jernigan, via certified mail
to 207 S. Austin Ave., Georgetown, TX 78626.

                                               /s/ John C. Prezas
                                               John C. Prezas
