             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-0280-15

                                    THE STATE OF TEXAS

                                                  v.

                          JOHN ALLEN WACHTENDORF, JR., Appellee

               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                     FROM THE THIRD COURT OF APPEALS
                            WILLIAMSON COUNTY

            K ELLER, P.J., filed a dissenting opinion in which K EASLER, H ERVEY
and A LCALA, JJ., joined.

        I agree with former Presiding Judge McCormick that “entered” is a legal term of art that

means “the clerical act of entry into the record”1 and that the clerical act of entry occurs when the

signed order is “file marked by the clerk.”2 Although the interests of stare decisis are at their height

for judicial constructions of legislative enactments upon which the parties rely for guidance in




       1
         State v. Rosenbaum, 818 S.W.2d 398, 404 (Tex. Crim. App. 1991) (McCormick, P.J.,
concurring).
        2
            Id. at 405.
                                                                WACHTENDORF DISSENT — 2

conforming to those enactments,3 there are nevertheless times when a court should reconsider a

decision that construes a statute.4 I think this is one of those times, because the construction of the

term “entered” in Rosenbaum to mean “signed” is contrary to the plain meaning of the term

“entered” and because the present case illustrates the problems that can be caused by that

construction.

        Nevertheless, the trial court has the power to remedy the situation in this case if it believes

that the State was unfairly deprived of notice of the suppression order in time to file an appeal. An

order suppressing evidence is an interlocutory order that may be revised by the trial court at any time

before the end of trial.5 The trial court could rescind its order granting the motion to suppress on the

basis that the State was not given timely notice of the order. The trial court could then issue a new

order granting the motion to suppress, and the appellate timetables would then run from that new

order. Regardless of whether the trial court provides a remedy in this case, I would not continue to

uphold an interpretation of a statute that requires the State to rely solely upon the grace of the trial

court to correct the deprivation of the State’s right to appeal when the plain language of the statute

does not require such a result.

        With these comments, I respectfully dissent.

Filed: November 18, 2015
Publish



       3
           Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010).
       4
         See e.g., Blake v. State, 971 S.W.2d 451 (Tex. Crim. App. 1998) (revisiting and ultimately
overruling earlier holding that construed the accomplice witness rule not to cover accomplices who
are juveniles).
       5
           Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012).
