                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00032-CR


THE STATE OF TEXAS                                                           STATE

                                         V.

SOUTCHAY                                                                APPELLEE
SANAVONGXAY


                                     ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                     ------------

                                    OPINION
                                     ------------

      The State filed a notice of appeal ―from the trial court‘s granting of a motion

to suppress or exclude DNA evidence in this case.‖ Shortly after filing the notice

of appeal, the State also filed an original proceeding in this court complaining

about the trial court‘s refusal to enter a written order granting the motion.1 We

denied the mandamus in a summary opinion. See Tex. R. App. P. 52.8(d); In re


      1
        We grant the State‘s motion to take judicial notice of our records in the
original proceeding.
Joe Shannon, No. 02-10-00048-CV, 2010 WL 744771, at *1 (Tex. App.––Fort

Worth Mar. 2, 2010, orig. proceeding]) (mem. op). The State also filed a Request

for Entry of a Written Order in the trial court, which the trial court has not ruled

on.

      The copy of the motion to suppress contains handwritten, unsigned

notations that were scratched out.2 An accompanying motion for continuance––

which complains about the late production of DNA evidence by the State––

contains a handwritten notation that says ―Denied 1-20-10 exclude DNA evid.‖

      At a pretrial hearing, the trial judge explained that she did not intend to rule

on the motion to suppress the DNA evidence––which was based on the State‘s

late production of DNA test results––because she did not think the police did

anything wrong. However, she acknowledged that she ―wrote on the motion for

continuance . . . exclude the DNA evidence because it was not timely filed.‖ She

further explained, ―You‘re still entitled to a suppression hearing. . . [I]n error I led

you to believe that I was making a suppression ruling; I‘m not. I‘m making an

admissibility ruling because of the lateness of the discovery, which I will allow

you to brief if you choose to.‖ She also said, ―[W]hat I have ruled is the defense

continuance was denied and the evidence was inadmissible because of

discovery violations. Now, if y‘all need time to brief that issue, you‘ve got it.‖

      2
       The State also filed an affidavit from an administrative clerk in the district
clerk‘s office averring that the handwriting on the motion to suppress is
―consistent with the practice and style of the judge of Criminal District Court No.
1.‖


                                           2
      Although the trial judge admitted writing the notations on the motion for

continuance and motion to suppress, she nevertheless has not memorialized her

ruling in a written order; thus, we must dismiss this appeal for want of jurisdiction

in accordance with our Cox opinion. See Tex. R. App. P. 43.2(f); State v. Cox,

235 S.W.3d 283, 284 (Tex. App.––Fort Worth 2007, no pet.); State v. Kibler, 874

S.W.2d 330, 331–32 (Tex. App.––Fort Worth 1994, no pet.).




                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

LIVINGSTON, C.J. filed a concurring opinion.
WALKER, J. filed a concurring opinion.

PUBLISH

DELIVERED: December 2, 2010




                                         3
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-10-00032-CR


THE STATE OF TEXAS                                                             STATE

                                          V.

SOUTCHAY                                                                  APPELLEE
SANAVONGXAY


                                      ------------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                      ------------

                           CONCURRING OPINION
                                      ------------

      Although I agree that we must dismiss this interlocutory appeal because

the trial court has not signed a written order, I write separately to express my

concern that a trial court can effectively deny the State its right to an interlocutory

appeal under article 44.01 of the code of criminal procedure by refusing to sign a

written order memorializing its preliminary ruling on pretrial evidentiary matters.

Like a defendant, the State may urge the trial court to reconsider its ruling at trial.
But, unlike a defendant, the State cannot appeal after trial if it cannot meet its

burden of proof because the trial court refuses to reconsider its evidentiary ruling.

       In the original proceeding, the trial judge explained her reasons for not

signing a written order: (1) she gave the State the opportunity to brief the issue

but it chose not to, filing the mandamus petition instead; and (2) she was merely

making a preliminary ruling on admissibility because of the State‘s failure to

produce the DNA evidence in discovery until immediately before trial and, thus,

her ruling was conditional and not final.

       I joined in the denial of the original proceeding because the trial judge‘s

response indicated that she had not finally considered the matter; she had invited

the State to brief the issue and was willing to consider its arguments and hold a

hearing. The State did not attempt to have the trial judge resolve the matter

before filing its appeal and mandamus petition.3 The State filed a subsequent

mandamus petition with the court of criminal appeals, which also denied the

petition.

       However, the trial judge has refused to consider any of the State‘s motions

while this appeal is pending, on jurisdictional grounds. So the State is essentially

stuck: it cannot get a reconsideration from the trial court while the appeal is


       3
        Although the trial judge‘s response in the original proceeding argues that
her ruling regarding the DNA evidence was conditional and not final, that does
not distinguish the ruling from a ruling on a motion to suppress. A suppression
order is a nonfinal ruling; the trial court may reconsider its decision at trial. See,
e.g., Ex parte King, 134 S.W.3d 500, 503 (Tex. App.––Austin 2004, pets. ref‘d).


                                            2
pending, but it cannot get a written order allowing the appeal to go forward

without mandamus relief from this court.

      ―Article 44.01 was enacted as a vehicle for the State to challenge

‗questionable legal rulings excluding what may be legally admissible evidence[.]‘

The purpose of the statute is to permit the pretrial appeal of erroneous legal

rulings which eviscerate the State‘s ability to prove its case.‖ State v. Medrano,

67 S.W.3d 892, 895–96 (Tex. Crim. App. 2002); see Tex. Code Crim. Proc. Ann.

art. 44.01(a)(5) (Vernon Supp. 2010) (providing that the State may appeal an

order that ―grants a motion to suppress evidence, a confession, or an admission,

if jeopardy has not attached in the case and if the prosecuting attorney certifies to

the trial court that the appeal is not taken for the purpose of delay and that the

evidence, confession, or admission is of substantial importance in the case‖).

The legislative intent of article 44.01 ―was to permit the State to appeal any

‗questionable legal rulings excluding what may be legally admissible evidence.‘

Period.‖ Medrano, 67 S.W.3d at 900 (emphasis added). ―[A] motion to suppress

evidence is one in which the defendant (or the State) claims that certain evidence

should not be admitted at trial for a constitutional, statutory, evidentiary or

procedural reason.‖    Id. at 901 (emphasis added).       Thus, what a defendant

names his motion––whether a motion to suppress or a motion to exclude

evidence––is irrelevant; Texas law governing pretrial motions does not

distinguish between the two. Id.; State v. Marrs, 104 S.W.3d 914, 916–17 (Tex.

App.––Corpus Christi 2003, no pet.).


                                           3
      Although its ultimate purpose is unclear, the trial court appears to have

drawn a distinction in this case between suppressing the evidence as a result of

police misconduct4 versus excluding evidence for a procedural reason––that the

State failed to timely provide the evidence in discovery. But Medrano tells us that

is not the case; the State may appeal the trial court‘s ruling suppressing, i.e.,

refusing to admit evidence, for any reason, regardless of whether the judge is

ruling on a document entitled ―Motion to Suppress,‖ ―Motion to Exclude

Evidence,‖ or in this case, ―Motion for Continuance.‖ See Medrano, 67 S.W.3d at

903; see also Tex. Code Crim. Proc. Ann. art. 28.01, §1(6) (Vernon 2006).

Accordingly, if the trial court, upon reconsideration after giving the State the

opportunity to brief and argue the late discovery issue, decides that the evidence

should remain excluded, the State should be allowed an interlocutory appeal of

that decision under article 44.01(a)(5) and Medrano if the DNA evidence is ―of

substantial importance‖ to the case, regardless of whether the trial court finds

police misconduct or a discovery violation by the State. See Tex. Code Crim.

Proc. Ann. art. 44.01(a)(5); Medrano, 67 S.W.3d at 903. And if a trial court

refuses to provide the State the means of availing itself of that statutory remedy

by holding a hearing and signing a written order memorializing its ruling,

mandamus is the only remedy available to the State so that its appeal may go

      4
       Medrano overruled State v. Roberts, 940 S.W.2d 655 (Tex. Crim. App.
1966), in which the court of criminal appeals held that the State could appeal
from an adverse ruling on a motion to suppress only when the trial court
determined that the evidence was illegally obtained. 67 S.W.3d at 903.


                                        4
forward. See State v. Cox, 235 S.W.3d 283, 285 n.14 (Tex. App.—Fort Worth

2007, no pet.).

      For these reasons, I respectfully concur.



                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PUBLISH

DELIVERED: December 2, 2010




                                        5
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00032-CR


THE STATE OF TEXAS                                                       STATE

                                       V.

SOUTCHAY SANAVONGXAY                                                 APPELLEE


                                    ----------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                    ----------

                         CONCURRING OPINION
                                    ----------

      Because the trial court has not held a suppression hearing—that is, no

witness has testified, and no evidence has been introduced—I concur with the

judgment dismissing this appeal.     Soutchay Sanavongxay filed a motion to

suppress, alleging as the sole basis for his motion that DNA evidence should be

suppressed because it was not timely produced by the State. Once the trial court

holds a hearing on the issue of whether the DNA evidence should be excluded

for the State=s alleged failure to timely produce it, the trial court will have a
reasonable time to enter an order reflecting its ruling on the motion to suppress,

and if the trial court suppresses the DNA evidence, the State may then appeal

that ruling.   See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp.

2010) (authorizing State=s appeal); State v. LaRue, 152 S.W.3d 95, 100 (Tex.

Crim. App. 2004) (addressing State=s appeal from trial court order suppressing

DNA evidence based on State=s alleged failure to timely produce DNA evidence

pursuant to discovery order).




                                                  SUE WALKER
                                                  JUSTICE

PUBLISH

DELIVERED: December 2, 2010




                                        2
