                 PD-0280-15
       NO._______________________________

                       IN THE
         COURT OF CRIMINAL APPEALS
                     OF TEXAS
                 THE STATE OF TEXAS
                       Petitioner

                        vs.

        JOHN ALLEN WACHTENDORF, JR.
                 Respondent


  ON PETITION FOR DISCRETIONARY REVIEW
       FROM THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN,
             NO. 03-14-00633-CR


STATE’S PETITION FOR DISCRETIONARY REVIEW


                                                      Jana Duty
                                               District Attorney
                                      Williamson County, Texas

                                                 John C. Prezas
March 18, 2015                         State Bar No: 24041722
                                     Assistant District Attorney
                                 405 Martin Luther King, Box 1
                                     Georgetown, Texas 78626
                                                (512) 943-1234
                                          (512) 943-1255 (fax)
                                             jprezas@wilco.org


         ORAL ARGUMENT REQUESTED
                    IDENTIFICATION OF PARTIES

Appellant: State of Texas

Trial Counsel:
       Danny Smith, SBN: 24046867
       Elizabeth Whited, SBN: 24060823
       405 MLK St., Box 1,
       Georgetown, TX 78626

Appellate Counsel:
     John C. Prezas, SBN: 24041722
     405 MLK St., Box 1,
     Georgetown, TX 78626


Appellee: John Allen Wachtendorf


Trial Counsel:
       Carissa Beene, SBN: 24071967
       215 W. University Ave.
       Georgetown, TX 78626

Appellate Counsel:
     Kristen Jernigan, SBN: 90001898
     207 S. Austin Ave.
     Georgetown, TX 78626




                                       2
                                      TABLE OF CONTENTS
                                                     Contents
IDENTIFICATION OF PARTIES ............................................................................2
TABLE OF CONTENTS ...........................................................................................3
INDEX OF AUTHORITIES......................................................................................5
STATEMENT REGARDING ORAL ARGUMENT ...............................................6
STATEMENT OF THE CASE ..................................................................................6
STATEMENT OF PROCEDURAL HISTORY........................................................6
GROUNDS FOR REVIEW .......................................................................................7
ARGUMENT .............................................................................................................7
   1. The State had No Notice of the Signing of the Order Granting the Motion
   to Suppress. ............................................................................................................7
   2. This Court’s Existing Precedent Allows Appeal Only from the Signed
   Order of which the State Lacked Notice. ...............................................................8
   3. The 3rd Court of Appeals Misinterpreted Existing Precedent and This Court
   Should Revise Such Precedent to Clearly Require that the State Have Notice of
   an Appealable Order to Begin its Timeframe for Filing Notice of Appeal. ..........9
       a. The Precedent Relied Upon by the 3rd Court of Appeals is
       Distinguishable...................................................................................................9
       b. The Very Worry the Presiding Judge Expressed in the Sutton Case has
       Come to Pass Here and This Court Should Rectify the Unfairness it Creates.
          11
       c. The Issue of the State’s Knowledge of an Appealable Order is an
       Important Question of Texas Law Decided by the 3rd Court of Appeals with
       Broad Impact on All Future State’s Appeals. This Court Should Clearly
       Settle this Issue to Provide Guidance to State Appellate Attorneys and the
       Courts of Appeal. .............................................................................................12
PRAYER ..................................................................................................................13


                                                             3
CERTIFICATE OF SERVICE ................................................................................14
CERTIFICATE OF COMPLIANCE .......................................................................14
APPENDIX ..............................................................................................................15




                                                           4
                                    INDEX OF AUTHORITIES
                                                         CASES
Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993)...............................6
State ex rel Sutton v. Bage, 822 S.W.2d 55 (Tex. Crim. App. 1992) ....................7, 9
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) ............................................................................................................8
State v. Poe, 900 S.W.2d 442, 444 (Tex. App.—Amarillo 1995) .............................9
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) ..............8
State v. Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991) .................................6
State v. Sanavongxay, 407 S.W.3d 252 (Tex. Crim. App. 2012) ..........................6, 8
State v. Wachtendorf, 2015 Tex. App. LEXIS 1796 No. 03-14-00633-CR (Tex.
  App.—Austin, delivered February 26, 2015) ....................................................4, 7




                                                             5
          STATEMENT REGARDING ORAL ARGUMENT

      Because this petition involves a request to revisit and clarify existing

precedent, oral argument will prove helpful primarily in addressing the policy and

practical concerns behind this request.


                        STATEMENT OF THE CASE

      Appellee was indicted for Driving While Intoxicated 3rd or More. He filed a

Motion to Suppress Evidence, which the trial court granted outside the State’s

presence and without its knowledge. The State appealed within five days of

becoming aware, in open court, of the trial court’s order. Appellee filed a motion

to dismiss the State’s appeal, to which the State responded. The 3 rd Court of

Appeals granted Appellee’s motion and dismissed the State’s appeal. This Petition

challenges that dismissal.


             STATEMENT OF PROCEDURAL HISTORY

      On February 26, 2015, the court of appeals dismissed the State’s appeal for

want of jurisdiction. State v. Wachtendorf, 2015 Tex. App. LEXIS 1796 No. 03-

14-00633-CR (Tex. App.—Austin, delivered February 26, 2015). Given the nature

and basis of that decision, the State did not file a motion for rehearing.




                                           6
                          GROUNDS FOR REVIEW

      This Court should revisit the existing precedent that the 3rd Court of Appeals

misinterpreted, to clarify for the various courts of appeal, and to avoid a manifest

unfairness in future State’s appeals, that the strict timeline for the State’s notice of

appeal is predicated upon and requires that the State has adequate notice of the

existence of a signed appealable order.


                                   ARGUMENT

   1. The State had No Notice of the Signing of the Order Granting the

      Motion to Suppress.

      The trial court held its initial hearing an Appellee’s motion to suppress on

February 14, 2014, and made an oral ruling in open court granting the motion on

July 7, 2014. R.R. vol. 3 p. 5. The State immediately announced its desire to

appeal the trial court’s decision. R.R. vol. 3 p. 5. The State then filed a motion

asking the trial court to reconsider its decision. The trial court held a hearing on

that motion on September 25, 2014 and received additional evidence. R.R. vol. 4.


      At the September hearing the State learned for the first time that the trial

court had signed a written order dated July 7, 2014, that was not file stamped. R.R.

vol. 4 p. 64-67. The record is clear that the State had no prior notice of the

existence of a signed order. R.R. vol. 4 p. 66-67. The State filed its notice of


                                           7
appeal five days after it learned of the order, on September 30, 2014. C.R. p. 48-

49.


      2. This Court’s Existing Precedent Allows Appeal Only from the Signed

        Order of which the State Lacked Notice.

        This Court has held that the timeframe for filing a State’s notice of appeal

begins on the day the trial court signs the appealable order. State v. Rosenbaum,

818 S.W.2d 398 (Tex. Crim. App. 1991). See also Rodarte v. State, 860 S.W.2d

108, 109 (Tex. Crim. App. 1993)(distinguishing this requirement for a State’s

notice of appeal from the general proposition that an oral ruling prevails over a

written order in the context of addressing a defendant’s right to appeal); State v.

Sanavongxay, 407 S.W.3d 252 (Tex. Crim. App. 2012)(State cannot appeal an oral

ruling granting a motion to suppress).


        Thus, the State had no ability to appeal from the trial court’s oral

pronouncement that it intended to grant to the motion to suppress.




                                          8
   3. The 3rd Court of Appeals Misinterpreted Existing Precedent and This

      Court Should Revise Such Precedent to Clearly Require that the State

      Have Notice of an Appealable Order to Begin its Timeframe for Filing

      Notice of Appeal.

      a. The Precedent Relied Upon by the 3rd Court of Appeals is

          Distinguishable.

      Despite stating, “we recognize the limitations imposed by the Court of

Criminal Appeals’ construction,” the 3rd Court of Appeals felt that this Court’s

precedent bound them to dismiss the State’s appeal. State v. Wachtendorf, 2015

Tex. App. LEXIS 1796 No. 03-14-00633-CR,(Tex. App.—Austin, delivered

February 27, 2015)(not designated for publication).

      First, the 3rd Court cited State ex rel Sutton v. Bage, 822 S.W.2d 55 (Tex.

Crim. App. 1992), where the State’s notice of appeal was held untimely when a

clerk did not file an appealable order until four days after the trial judge signed it

and the State filed their notice of appeal late because it based its filing date on the

date the order was filed by the clerk rather than the date it was actually signed.

However, this Court decided Sutton 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 rather different question than whether the State is entitled to

                                          9
relief when the actions or inaction of a court or a clerk work, however

inadvertently, to deny the State its statutory ability to appeal simply by denying

notice of the entry of a written order.

      The 3rd Court also cited 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) and 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) as dismissals where State’s notice of appeal was

untimely. However, neither of these cases involved a situation where the court

failed to give any notice or indication that it had signed an appealable order.

      Finally, the 3rd Court cited State v. Sanavongxay, 407 S.W.3d 252, 258-259

(Tex. Crim. App. 2012). In Sanavongxay this Court confronted a situation where

the trial court had signed no orders at all and held that precedent required a written

order for the State to have the ability to appeal. This Court explicitly did not

address claims by the State that a court could effectively deny the State its right to

appeal simply by refusing to enter a written order. Id at 257.




                                          10
       b. The Very Worry the Presiding Judge Expressed in the Sutton Case

          has Come to Pass Here and This Court Should Rectify the

          Unfairness it Creates.

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

problem at issue here, addressed only indirectly in previous precedent, 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.” State ex rel Sutton v. Bage, 822 S.W.2d 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. (internal citation omitted).




                                            11
          While the Amarillo Court of Appeals is correct, this Court finally has, via

this petition, the facts before it to clearly hold that a court’s inherent power indeed

does not extend that far.


          c. The Issue of the State’s Knowledge of an Appealable Order is an

             Important Question of Texas Law Decided by the 3rd Court of

             Appeals with Broad Impact on All Future State’s Appeals. This

             Court Should Clearly Settle this Issue to Provide Guidance to State

             Appellate Attorneys and the Courts of Appeal.

          By granting this petition, this Court can provide guidance to all intermediate

courts and guidance to all appellate prosecutors seeking to properly preserve and

assert the State’s ability to appeal an adverse ruling, such as the motion to suppress

evidence here.


          While it is reasonable to assume that this Court did not mean by its decision

in Rosenbaum to require the State file its notice of appeal within twenty days of an

event it is not aware has occurred, the 3rd Court of Appeals, and likely other courts

of appeal as well, believe that the holdings this Court has rendered require such a

result.


          It is a fundamental principle of our criminal procedure that a party must have

notice of the event triggering a timeframe within which it must assert its rights or


                                            12
seek its remedies. This Court should grant this petition to clearly hold that the

State must have notice that an appealable order has been signed before the clock

begins to run on the time within which it must file its notice of appeal.


                                     PRAYER

      Therefore, the State prays that this Court grant this petition and review the

3rd Court of Appeals opinion dismissing the State’s appeal, reverse or vacate that

order, remand this case to the 3rd Court of Appeals to be heard on the merits, and

for any and all other relief to which the State may justly be entitled.

                                               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




                                          13
                       CERTIFICATE OF SERVICE

I hereby certify that on March 13, 2015, I electronically filed the foregoing
document with the clerk of the court for the Texas Court of Criminal Appeals,
using the efile.txcourts.gov system. Via that system, a “Notice of Electronic
Filing” was sent to Appellee’s appellate attorney of record, Kristen Jernigan 207 S.
Austin Ave., Georgetown, TX 78626, at kristen@txcrimapp.com and to the State
Prosecuting Attorney, P.O. Box 13046, Austin, TX 78711-3046, at
information@spa.texas.gov.
                                              /s/ John C. Prezas
                                              John C. Prezas


                   CERTIFICATE OF COMPLIANCE

I hereby certify that this brief contains 1,407 words, after applicable exclusions, in

compliance with Rule 9.4(i) of the Texas rules of Appellate Procedure.


                                              /s/ John C. Prezas
                                              John C. Prezas




                                         14
            APPENDIX

(OPINION FROM 3RD COURT OF APPEALS)




                15
      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’”).

                                                   2
                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



                                                      3
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”).




                                                  4
                                          David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Dismissed for Want of Jurisdiction

Filed: February 26, 2015

Do Not Publish




                                             5
