                                  NO. 07-10-0233-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                 DECEMBER 10, 2010


                          THE STATE OF TEXAS, APPELLANT

                                           v.

                             OCTAVIO ORTIZ, APPELLEE


             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2009-423,824; HONORABLE JIM BOB DARNELL, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


      By interlocutory appeal, the State attempts to challenge a ruling of the trial court

partially granting the motion to suppress evidence1 brought by appellee Octavio Ortiz.

On reviewing the record, we find no signed written order granting appellee’s motion to

suppress, in whole or in part. On our own motion we therefore consider our jurisdiction

of the appeal.     See Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277

(Tex.App.--Amarillo 1995, no writ) (appellate court must address questions of



      1
          See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2010).
jurisdiction, sua sponte). Concluding we lack appellate jurisdiction, we will dismiss the

appeal.


       On September 9, 2009, appellee filed a motion seeking suppression of tangible

items and written and oral statements. The trial court heard the motion on November

23, 2009, and denied it by written order dated June 7, 2010. On the same date, after

signing the order, the trial court convened a brief hearing in the case.        During the

hearing, the trial court announced it was “going to” grant appellee’s motion as to certain

oral statements. At the conclusion of the hearing, the State announced its intention to

appeal. Later that day the State filed a notice of appeal. It requested findings of fact

and conclusions of law on June 11. The trial court signed and filed its findings and

conclusions on July 9.


       The State may appeal an order granting a motion to suppress. Tex. Code Crim.

Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2010). The appeal must be from a written

order signed by the trial judge. See State v. Cox, 235 S.W.3d 283, 284 (Tex.App.--Fort

Worth 2007, no pet.) (citing State v. Rosenbaum, 818 S.W.2d 398 (Tex.Crim.App.

1991)).


       As for the writing constituting the challenged order, the State directs us to the

final page of the trial court’s findings of fact and conclusions of law. The page contains

the signature of the trial court judge. And a portion of the language states:


       Based on the foregoing findings of fact and conclusions of law, the Court
       finds Defendant’s motion to suppress his statement regarding the identity
       of the substance should be granted, and the Defendant’s motion to
       suppress his statement regarding the quantity of the substance should be
       (sic) also be granted.


                                             2
But language expressing a future intention to grant appellee’s motion and suppress the

challenged statements does not constitute an appealable order under article 44.01.

See State v. Sorrell, No. 05-01-0658-CR, 2001 Tex. App. Lexis 8380 (Tex.App.--Dallas

Dec. 19, 2001, no pet.) (not designated for publication) (statement in findings of fact and

conclusions of law that “the seized marijuana must be suppressed” was an expression

of court’s future intention and not a substitute for an order); cf. Hacklerr v. Depinto, No.

02-07-0344-CV, 2007 Tex. App. Lexis 9879, at *1-*2 (Tex.App.--Fort Worth Dec. 20,

2007, no pet.) (per curiam) (order specifying dismissal of parties’ claims if security not

given within twenty days was not final and did not invoke appellate jurisdiction as an

order must express court’s intention to render disposition at time of entry rather than in

future). We conclude the document containing findings of fact and conclusions of law

does not constitute a signed written order granting the motion to suppress.


       Because the record does not contain a signed written order our jurisdiction for

the State’s appeal under article 44.01 has not been invoked. Cox, 235 S.W.3d at 285;

State v. Sage, No. 14-09-0576-CV, 2009 Tex. App. Lexis 6812, at *1-*2 (Tex.App.--

Houston [14th Dist.] Aug. 27, 2009, no pet.) (per curiam, mem. op., not designated for

publication). As did a sister court in an analogous situation, Sage, 2009 Tex. App. Lexis

6812, at *2, we dismiss the State’s appeal for want of jurisdiction.


                                          Per Curiam

Quinn, C.J., not participating.



Do not publish.




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