                                                                        ACCEPTED
                                                                    04-15-00394-CR
                                                        FOURTH COURT OF APPEALS
                                                             SAN ANTONIO, TEXAS
                                                             10/28/2015 11:34:55 PM
                                                                     KEITH HOTTLE
                                                                             CLERK




                 NO. 04-15-00394-CR                 FILED IN
                                             4th COURT OF APPEALS
                                              SAN ANTONIO, TEXAS

         IN THE FOURTH COURT OF APPEALS      10/28/15 11:34:55 PM

                SAN ANTONIO, TEXAS             KEITH E. HOTTLE
                                                     Clerk




                  STATE OF TEXAS,
                     Appellant,
                        V.
                 JAMES RAY JUNEK,
                     Appellee.

                 BRIEF OF APPELLEE

           Appeal from the County Court at Law
                    Kerr County, Texas
               Trial Court No. CR14-0145
               The Honorable Susan Harris

                                    DARREN LEE UMPHREY
                                       Texas Bar No. 00792885
                         Attorney for Appellee James Ray Junek
                                 246 W. San Antonio, Suite 201
                                   New Braunfels, Texas 78130
                                        (830) 627-3123-Phone
                                          (830) 627-3122-Fax

NO ORAL ARGUMENT REQUESTED
                IDENTITY OF PARTIES AND COUNSEL


Appellant:               The State of Texas
                         Ms. Heather Stebbins
                         Elected Kerr County Attorney
                         700 Main Street, Ste. BA-103
                         Kerrville, Texas 78028
                         Mr. Joseph A. Soane, III
                         Assistant Prosecuting Kerr County Attorney
                         700 Main Street, Ste. BA-103
                         Kerrville, Texas 78028



Appellee / Defendant:    James Ray Junek
                         Mr. Darren Lee Umphrey
                         246 W. San Antonio Street, Suite 201
                         New Braunfels, Texas 78130
                             TABLE OF CONTENTS
IDENTITY OF THE PARTIES AND COUNSEL                                                   i
TABLE OF CONTENTS                                                                    ii
INDEX OF AUTHORITIES                                                                iii
STATEMENT OF THE CASE                                                               iv
STATEMENT REGARDING ORAL ARGUMENT                                                    v
CROSS-POINT NO. 1: Assistant County Attorney's attempt to perfect the States
  appeal by the filing of a Notice of Appeal and Certification signed by the Assistant
  County Attorney on May 14, 2015 was ineffective under Tex. Code Crim. Proc.
  44.01(i). This Court lacks jurisdiction to consider this appeal                    vi
STATEMENT OF FACTS FOR CROSS-POINT NO. 1                                              1
SUMMARY OF THE ARGUMENT FOR CROSS-POINT NO. 1                                         2
ARGUMENT FOR CROSS-POINT NO. 1                                                       3
PRAYER                                                                               4
CERTIFICATE OF SERVICE                                                               5




                                           ii
                         INDEX OF AUTHORITIES

CASES

State V. Muller 829 S.W.2d 805,809 (Tex. Crim. App. 1992)

STATUTES
Article 44.01, Texas Rules of Criminal Procedure




                                       iii
                         STATEMENT OF THE CASE
      This is a driving while intoxicated prosecution. Appellee was charged by
Information with the offense of driving while intoxicated. Appellee filed his
Motiont to Suppress on December 11, 2014, which the trial court granted May 6,
2015 following a hearing. On May 14, 2015, Appellant filed a document entitled
Notice of Appeal. On May 14, 2015, Appellant also filed a document entitled
Affidvit certifying to the trial court that the appeal was not taken for purposes of
delay and that the evidence was of substantial importance in the case. This
document was signed and sworn to by Joseph A. Soane, III, Assistant Kerr County
Attorney for Kerr County, Texas.




                                         iv
                     REGARDING ORAL ARGUMENTS
      Appellee James Ray Junek does not request oral arguments. Appellee
believes that the issues are not novel and does not believe oral argument would
assist this honorable Court in understanding the issues presented.
                               CROSS-POINT NO. 1
      Assistant County Attorney's attempt to perfect the States appeal by the filing
of a Notice of Appeal and Certification signed by the Assistant County Attorney on
May 14, 2015 was ineffective under Tex. Code Crim. Proc. 44.01(i). This Court
lacks jurisdiction to consider this appeal.




                                              vi
                          NO. 04-15-00394-CR

               IN THE FOURTH COURT OF APPEALS
                      SAN ANTONTO, TEXAS

                           STATE OF TEXAS,
                              Appellant,
                                 V.
                          JAMES RAY JUNEK,
                              Appellee.

                         BRIEF OF APPELLEE


TO THE HONORABLE COURT OF APPEALS:
      NOW COMES Appellee JAMES RAY JUNEK and submits his Brief of
Appellee.

           STATEMENT OF FACTS FOR CROSS-POINT NO. 1

     On May 6, 2015, in the County Court at Law of Kerr County, Texas, the
Appellee's Motion to Suppress was granted by the Honorable Susan Harris.
Joseph A. Soane, III is an Assistant County Attorney for Kerr County, Texas.
(RR4, 4). On May 13, 2015 a Notice of Appeal was signed by Joseph A. Soane,
III, Assistant Kerr County Attorney (CR Notice of Appeal). Said document was
                                     1
filed for record on May 14, 2015 with the County Clerk of Kerr County, Texas.
(CR Notice of Appeal). Assistant Prosecuting Attorney, Joseph A. Soane, III also
filed an affidavit on May 14, 2015. {CK Affidavit). The affidavit states:
            "My name is Joseph Soane, and I am the Assistant Kerr County
      Attorney for Kerr County, Texas, in the above styled and numbered
      cause. I certify to the trial court that the appeal is not taken for
      purposes of delay and that the evidence is of substantial importance in
      the case."
      This certification was signed by Joseph A. Soane, III. (CR Affidavit). Mr.
Soane is not the elected county attorney for Kerr County, Texas as evidenced by
his statement in the certification. (CR Affidavit). The elected county attorney for
Kerr County, Texas is Heather Stebbins.            (CR State's First Motion for
Continuance) and (CR Suppression Letter Brief filed April 24, 2015) Ms. Stebbins
name and/or her signature authorizing this specific appeal does not appear in the
Notice of Appeal or certification. (CR Notice ofAppeal) and {CR Affidavit).

      The record reflects that the trial court recognized Joseph A. Soane, III as the
Assistant County Attorney. (RR4, 4-5).

       SUMMARY OF THE ARGUMENT FOR CROSS-POINT NO. 1

      Jurisdiction concerns the power of a court to hear and determine a case.
Appellate jurisdiction is invoked by giving notice of appeal. The notice of appeal
must be timely and must be in writing to invoke a court of appeals' jurisdiction. In
                                          2
addition, in State-prosecuted appeals, the failure of the elected prosecuting
attorney, as opposed to an assistant to make the appeal is a jurisdictional defect.
The Notice of Appeal and certification filed by the State on May 14, 2015 was
ineffective. It is a failure to abide by the substantive statutory requirements of
Tex.Code Crim.Proc. art. 44.01. Due to this failure, this Court lacks jurisdiction.
                   ARGUMENT FOR CROSS-POINT NO. 1

      Tex. Code Crim. Proc. Art. 44.01 sets forth the grounds upon which an
appeal may be made by the State. Article 44.01 further provides that such an
appeal is to be made by the Prosecuting Attorney. Specifically, Article 44.01(i)
reads as follows, "in this article, 'prosecuting attorney', means the County
Attorney, District Attorney or Criminal District Attorney who has the primary
responsibility of prosecuting cases in the Court hearing the case and does not
include an Assistant Prosecuting Attorney" (emphasis added). See State v. Muller
829 S.W.2d 805,809 (Tex. Crim. App. 1992).

      Both the Nodce of Appeal and certificafion required by 44.01(a)(5) are
clearly signed by Joseph A. Soane, III, Assistant Kerr County Attorney, who is not
the "Prosecuting Attorney" as defined by Tex. Code Crim. Proc. Art. 44.01(i).
Therefore, the appeal was never properly made.


                                          3
      Appellee would further show that since the appeal was not properly
perfected and May 26, 2015 was the last day for said appeal to be perfected, the
Court does not have jurisdiction of this matter. Additionally, since the time for
perfecting the appeal has expired, the office of the County Attorney cannot correct
the defect by filing an amended notice. Nothing in the Nofice of Appeal or
Affidavit, each signed by the "assistant" prosecuting attorney, hints in the least that
the elected county attorney authorized this specific appeal. If there is no
compliance within the twenty-day window, the window is thereafter closed. A
defective notice of appeal is not susceptible to correcdon through application of
'amendment and cure' provision of the Texas Rules of Appellate Procedure. See
Muller, 829 S.W.2dat812.
      The filing of a nofice of appeal by an assistant prosecuting attorney is not a
defect of appellate procedure; it is a failure to abide by the substantive statutory
requirements of Tex.Code Crim.Proc. art. 44.01. See Muller, 829 S.W.2d at 812.

                                      PRAYER
      THEREFORE, Appellee JAMES RAY JUNEK respectfiilly request that this
Honorable Court grant Appellee's Motion to Dismiss Appeal for Want of
Jurisdiction or in the alternative uphold the ruling of the trial court's Order
granting Appellee's Motion to Supress.

                                          4
                                      Respectfully submitted,
                                      Law Offices of Darren Lee Umphrey
                                      246 W. San Antonio Street
                                      Suite 201
                                      New Braunfels, Texas 78130
                                      Tel: (830) 627-3123
                                      Fax: (830) 627-3122

                                         D A ^ ^ N LEEtJMPHREY
                                         State Bar No. 00792885
                                         Attorney for JAMES JUNEK,
                                              Appellee


                          CERTIFICATE OF SERVICE
      I hereby certify that on this the 28^ day of October, 2015, a true and correct
copy of Appellee's Brief was served on the following by the following method:
Mr. Joseph A. Soane, III                           via email and fax
Assistant Kerr County Attorney
700 Main Street, Suite BA-103
Kerrville, Texas 78028




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