                          NUMBER 13-13-00449-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                       Appellant,

                                           v.

KORI J. MARRA,                                                             Appellee.


               On appeal from the County Court at Law No. 3
                       of Cameron County, Texas.


                          MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
            Memorandum Opinion by Justice Rodriguez
      This case involves a re-charging of a defendant on the same charges of which she

was acquitted by this Court in an appeal from the first conviction. See Marra v. State,

399 S.W.3d 664 (Tex. App.—Corpus Christi 2013, no pet.). Appellant the State of Texas

challenges the trial court's granting of appellee Kori J. Marra's application for writ of

habeas corpus on the ground that the subsequent information, that forms the basis of this
appeal, violated the statute of limitations. By one issue, the State argues that the trial

court erred because the limitations period for the subsequent information was tolled until

this Court rendered judgment acquitting Marra. We dismiss for lack of jurisdiction.

                                     I. Background

       On March 11, 2011, the State filed its first complaints and informations against

Marra, a former City of Harlingen commissioner, alleging and charging that, on

September 1, 2010, Marra had committed two class A misdemeanors when she

participated in a vote or decision on a matter that had a special economic effect on a

business entity and real property in which she had substantial interests without first filing

an affidavit stating the nature and extent of her interest in the entity and property. See

TEX. LOC. GOV'T CODE ANN. §§ 171.003(a)(1), (b), 171.004(a)(1), (2) (West, Westlaw

through 2013 3d C.S.). Marra pleaded not guilty, and after a trial, the jury convicted her

of the business-entity offense but acquitted her of the real-property offense. The trial

court sentenced Marra to thirty days' confinement in county jail and assessed a $500 fine

and court costs. Marra appealed her conviction to this Court, and on April 4, 2013, after

holding that a material variance between the State's pleading and proof rendered the

evidence legally insufficient to support the conviction, we reversed the conviction and

rendered a judgment of acquittal. See Marra, 399 S.W.3d at 673.

       On April 23, 2013, the State filed a new complaint and information against Marra

under local government code section 171.004(a)(1) based on the same September 2010




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conduct. 1 Marra filed a motion to quash and dismiss the information and a pretrial

application for writ habeas corpus, arguing in both that the statute of limitations barred

the State's subsequent charge because it was not filed within two years of the date of the

offense. See TEX. CODE CRIM. PROC. ANN. art. 12.02(a) (West, Westlaw through 2013

3d C.S.). The trial court clerk filed the motion to dismiss in the existing criminal cause

number but docketed the habeas application under a separate cause number.

       The trial court held one hearing for both Marra's motion to dismiss and habeas

application, at which the State argued that code of criminal procedure article 12.05 tolled

limitations for a period beginning with the original March 2011 charges and extending

through the pendency of the appeal that eventually resulted in Marra's acquittal. See id.

art. 12.05(b), (c) (West, Westlaw through 2013 3d C.S.). In separate orders issued in

the corresponding cause numbers, the trial court granted both Marra's motion to dismiss

and habeas application. The State noticed its appeal from the habeas cause number

and order.

                      II. Motion to Dismiss Appeal and Mootness

       After the State filed its notice of appeal, Marra filed with this Court a motion to

dismiss the appeal for lack of jurisdiction. Marra argues that because the State failed to

perfect an appeal from the trial court's order granting her motion to quash and dismiss,

this Court has no jurisdiction to review it. And because that order finally disposes of the

charges, it renders the State's appeal of the habeas order moot. We agree.




       1  In the second prosecution, the State did not file charges against Marra under section
171.004(a)(2), the real property provision. See TEX. LOC. GOV'T CODE ANN. §§ 171.004(a)(2) (West,
Westlaw through 2013 3d C.S.).
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       To perfect an appeal from a trial court's order dismissing a complaint and

information, the State must file its notice of appeal within twenty days after the trial court

enters its appealable order. See TEX. R. APP. P. 26.2(b) (setting the appellate time table

for the State); TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1), (d) (West, Westlaw through

2013 3d C.S.) (granting the State the right to appeal a trial court's order that "dismisses

an indictment, information, or complaint" no "later than the 20th day after the date on

which the order . . . to be appealed is entered by the court"). Because the twenty-day

deadline imposed by article 44.01(d) is a substantive limit on the State's authority to

appeal, the extension of time provided by rule of appellate procedure 26.3 is unavailable

to the State. See TEX. R. APP. P. 26.3; State v. Muller, 829 S.W.2d 805, 812 (Tex. Crim.

App. 1992) ("[T]he rules [of appellate procedure] were not intended and may not be

employed to enlarge the substantive rights of the litigants. In our view, art[icle] 44.01(d)

does more than merely prescribe a procedural guideline for filing the State's notice of

appeal. Rather it limits the State's substantive authority to appeal . . . .") (quoting State

v. Demaret, 764 S.W.2d 857, 858 (Tex. App.—Austin 1989, no pet.)); State v. White, 248

S.W.3d 310, 313 (Tex. App.—Austin 2007, no pet.) ("Because the [] 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 . . . ."); see also State v. Reynolds, No. 13-

00-00446-CR, 2000 WL 33420555, at *1 (Tex. App.—Corpus Christi July 27, 2000, no

pet.) (not designated for publication) (same). If the State does not perfect its appeal by

filing a timely notice, it fails to invoke the jurisdiction of the appellate court. See Muller,

829 S.W.2d at 813; see also Reynolds, 2000 WL 33420555, at *1.

       Here, the State does not dispute that it failed to timely perfect an appeal from the

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trial court's order in the existing criminal cause number granting Marra's motion to quash

and dismiss.2 We therefore agree with Marra that this Court has no jurisdiction over any

complaint regarding the order on the motion to dismiss.

        Likewise, we have no jurisdiction over the State's appeal of the order in the habeas

cause number because the trial court's granting of Marra's motion to dismiss in the

separate cause number renders this appeal moot.                        A cause, issue, or proposition

becomes moot "when the appellate court's judgment cannot have any practical legal

effect upon a controversy." State v. Garza, 774 S.W.2d 724, 727 (Tex. App.—Corpus

Christi 1989, pet. ref'd) (citation omitted); see also Salinas v. State, No. 13-09-00616-CR,

2011 WL 1938664, at *3 (Tex. App.—Corpus Christi May 12, 2011, pet. ref'd) (mem. op.,

not designated for publication) ("The doctrine of mootness limits courts to deciding cases

in which an actual controversy exists."). Any opinion by an appellate court ruling on a

moot issue would be purely advisory, and Texas courts have no jurisdiction to issue

advisory opinions. See Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App.

1991); see also Salinas, 2011 WL 1938664, at *3.

        Both orders by the trial court—the order granting Marra's motion to dismiss in the


          2 Rather, citing State v. Young and State v. Moreno, the State argues that it was entitled to appeal

the habeas order because, even if it was not labeled as a dismissal, the habeas order had the practical
effect of dismissing the charges. See Young, 810 S.W.2d 221, 224 (Tex. Crim. App. 1991) ("Article 44.01
must be 'liberally construed [so as] to achieve [its] purpose.' . . . [T]he intent of the Legislature in enacting
such Article was to allow for a state appeal from any trial court order terminating the criminal proceedings
against a defendant."); Moreno, 807 S.W.2d 327, 333 (Tex. Crim. App. 1991) ("The mere label attached
either to the defendant's motion or to the trial court's order ruling on same cannot determine its
appealability . . . . To so rule would import an empty formalism into a statute expressly designed to
eliminate ‘technical distinctions in pleadings as limitations on appeals by the [State]." (internal citations and
quotations omitted)). The State's argument misses the mark. Marra does not assert that the trial court's
order on the habeas application was not appealable. She concedes that it was. Instead, Marra argues
that it was the State's failure to appeal the order in the main criminal action that defeats this Court's
jurisdiction. The State's argument in response does not assail this point. The State cites no case law,
and we find none, indicating that a notice of appeal from a habeas order with a separate cause number
excuses it from filing a notice of appeal from the dismissal of the underlying case.
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main criminal action and the order granting Marra's habeas application—resolved the

limitations issue in favor of Marra, and either order, standing alone, supported dismissal

of the charges. See Ex parte Smith, 178 S.W.3d 797, 801–02 (Tex. Crim. App. 2005)

(explaining that either a pretrial motion or a pretrial writ of habeas corpus is a proper

vehicle for raising a limitations bar to charges by the State). The State does not dispute

this. Accordingly, when the State failed to timely perfect an appeal of the dismissal order

in the main criminal action, that order became final and functioned on its own to dismiss

the State's charges against Marra. In short, the State extinguished the controversy over

the statute of limitations issue.   Thus, by appealing the order in the habeas cause

number but not the order in the main criminal action, the State asks this Court to rule on

a moot issue and enter a judgment that would have no practical legal effect. Such a

judgment would be a purely advisory ruling by this Court on the limitations issue, and we

have no jurisdiction to enter such a judgment.

       In light of the foregoing, the Court is of the opinion that Marra's motion to dismiss

should be granted, and we do not reach the merits of the State's appeal.

                                     III. Conclusion

       We GRANT Marra's motion to dismiss and DISMISS the appeal for lack of

jurisdiction.


                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 29th
day of January, 2015.

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