                                                                           ACCEPTED
                                                                      03-14-00547-CR
                                                                             4853437
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                 4/10/2015 8:11:30 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
                        NO. 03-14-00547-CR

                   IN THE COURT OF APPEALS             FILED IN
                                                3rd COURT OF APPEALS
                             FOR THE                AUSTIN, TEXAS
         THIRD SUPREME JUDICIAL DISTRICT OF        TEXAS
                                                4/10/2015 8:11:30 PM
                            AT AUSTIN             JEFFREY D. KYLE
                                                        Clerk
__________________________________________________________________

                        NO. CR-12-0005

               IN THE 428TH DISTRICT COURT
                  OF HAYS COUNTY, TEXAS
__________________________________________________________________

                        STATE OF TEXAS,
                          APPELLANT

                                V.

                   BRYAN ROLAND CHANDLER,
                            APPELLEE
__________________________________________________________________

     APPELLEE’S MOTION TO DISMISS THE STATE’S APPEAL
__________________________________________________________________


                               LINDA ICENHAUER-RAMIREZ
                               ATTORNEY AT LAW
                               1103 NUECES
                               AUSTIN, TEXAS 78701
                               TELEPHONE: 512-477-7991
                               FACSIMILE 512-477-3580
                               EMAIL: LJIR@AOL.COM
                               SBN: 10382944


                               ATTORNEY FOR APPELLEE
TO THE HONORABLE THIRD COURT OF APPEALS:

      COMES NOW, Bryan Roland Chandler, Appellee, by and through his

attorney of record, Linda Icenhauer-Ramirez, and files this his Motion to

Dismiss the Appeal and in support thereof, would show the Court the

following:

                                     I.

      That the above-styled and numbered cause is styled The State of

Texas v. Bryan Roland Chandler, Cause Number CR-12-0005 in the 428th

Judicial District Court of Hays County, Texas. Appellant was sentenced on

February 23, 2012. The trial court entered a judgment nunc pro tunc on

August 7, 2014.

                                    II.

      Appellee was convicted of one count of aggravated assault with a

deadly weapon (family violence) after entering into a plea bargain with the

State. The parties agreed that appellant’s punishment would be assessed at

ten years imprisonment and there would be no affirmative finding of a

deadly weapon. (C.R. 6-13) Despite this agreement, the original written

judgment in the case contained an affirmative finding of a deadly weapon.

(C.R. 14-16) A judgment nunc pro tunc signed and entered by the trial court

on March 23, 2012 corrected appellee’s backtime credit but still erroneously



                                     2
contained an affirmative finding of a deadly weapon. (C.R. 18-19).

                                            III.

       On April 17, 2014, Appellee filed a motion for a judgment nunc pro

tunc asking the trial court to correct the deadly weapon finding. (C.R. 20-

35) On August 7, 2014, the trial court held a hearing on the matter and after

hearing the arguments of counsel and reviewing the record in the cause,

granted appellee’s motion for judgment nunc pro tunc. (R.R. I) On August

7, 2014, the assistant criminal district attorney filed written notice of appeal.

(C.R. 38-39) On October 2, 2014, the elected criminal district attorney filed

an affidavit saying that she had authorized the assistant criminal district

attorney to file the appeal in this cause.     (C.R. 48)   The Nunc Pro Tunc

Judgment of Conviction by Court – Waiver of Jury Trial was signed and

filed in this case on October 2, 2014. (C.R. 49-50)

                       IV.
THE STATE’S APPEAL MUST BE DISMISSED BECAUSE THE
NOTICE OF APPEAL WAS NOT TIMELY SIGNED OR
AUTHORIZED BY THE ELECTED CRIMINAL DISTRICT
ATTORNEY.

                        The Law and the Argument

      The appellee filed a Motion for Judgment Nunc Pro Tunc on April 17,

2014. (C.R. 20-35) The trial court held the hearing on Appellee’s motion

on August 7, 2014. (R.R. I, pp. 4-9) At the conclusion of the hearing, the



                                        3
trial court granted appellee’s motion and ordered that the judgment in the

case be corrected by deleting the affirmative finding of a deadly weapon.

(R.R. I, pp. 8-9) The State filed written notice of appeal on August 7, 2014.

This notice of appeal was not signed by the elected criminal district attorney

Sherri K. Tibbe; rather it was signed by assistant district attorney Brian

Erskine.   (C.R. 38-39)     On October 2, 2014, the State filed an affidavit

signed by Sherri K. Tibbe, the elected criminal district attorney for Hays

County.    In her affidavit she stated that on August 7, 2014, she had

authorized Brian Erskine to file an appeal in this cause. (C.R. 48)       On

October 2, 2014, the Nunc Pro Tunc Judgment of Conviction by Court –

Waiver of Jury Trial was filed in this case. (C.R. 49-50)

      In Muller v. State, 829 S.W.2d 805 (Tex.Cr.App. 1992), the Court of

Criminal Appeals looked at the requirements for a State’s notice of appeal.

The Court of Criminal Appeals wrote:

      “ . . . Article 44.01 contains two checks on the discretion of a
      prosecuting attorney's office. The first check is the requirement
      of approval from the prosecuting attorney. Requiring personal
      approval creates a bottleneck in the office of the prosecuting
      attorney through which all appeals must pass. An assistant does
      not have the discretion or personal authority to file a notice of
      appeal absent explicit instruction to do so by the prosecuting
      attorney. 829 S.W.2d at 810.

The Court went on to write:

      “We must next interpret the term "make an appeal," as used in

                                      4
       section (d) of Article 44.01. When considered in light of section
       (i)'s express exclusion of assistant prosecutors from its
       definition of "prosecuting attorney," it is clear that the phrase
       "make an appeal" clearly requires--at the minimum--the
       prosecuting attorney to personally supervise and authorize the
       appeals to be undertaken by his office on behalf of the State.
       That is, the statute, when construed as an internally consistent
       and integrated whole, seeks to ensure that the prosecuting
       attorney himself personally authorize specific appeals filed on
       behalf of the State.

       We do not suggest that Article 44.01 necessarily requires that a
       State's notice of appeal must, in all cases, reflect the personal
       signature of the prosecuting attorney. However, the plain
       meaning of the literal text of Article 44.01(d) requires the
       prosecuting attorney to "make an appeal" by personally
       authorizing--in some fashion--the specific notice of appeal in
       question. More specifically, to comply with the statute, he must
       either physically sign the notice of appeal or personally instruct
       and authorize a subordinate to sign the specific notice of appeal
       in question. Because of the jurisdictional limitations of Article
       44.01, discussed infra, we further read the statute to require this
       personal authorization to occur prior to the expiration of the
       fifteen day1 window of appeal.” 829 S.W.2d at 810.

Thus, if the notice of appeal is signed by an assistant prosecuting attorney,

the State must file something within twenty days of the issuance of the

order, showing that the elected prosecuting attorney authorized the filing of

the notice of appeal.

       In this case, the State’s notice of appeal was defective and was not

timely corrected. As noted above, the elected prosecuting attorney--not an

1
 At the time Art. 44.01, V.A.C.C.P. provided that the State had to file notice of appeal
within 15 days of the order it sought to appeal. That time limit is now 20 days. Art.
44.01(d).


                                             5
assistant--must personally supervise and authorize appeals pursuant to article

44.01. State v. Muller, supra. To comply with the statute, the elected

prosecuting attorney must either physically sign the notice of appeal or

personally instruct and authorize a subordinate to do so and evidence of that

authority must be filed within the twenty day period in order to perfect the

appeal. Id. The notice of appeal in this cause was signed by the assistant

criminal district attorney. (C.R. 38-39) The affidavit which was signed by

the elected criminal district attorney and filed later on October 2, 2014, was

not timely.    This defect could not be cured by the untimely filed affidavit.

State v. Riewe, 13 S.W.3d 408, 412-414 (Tex.Cr.App. 2000). As a result,

the State did not properly file its notice of appeal and this appeal must be

dismissed. State v. Lagunas, 2002 Tex. App. LEXIS 2568 (Tex.App.-Austin

2002, no pet.).

                                       V.

THE STATE’S APPEAL MUST BE DISMISSED BECAUSE UNDER
ART. 44.01, V.A.C.C.P, THE STATE HAS NO RIGHT TO APPEAL
FROM A JUDGMENT NUNC PRO TUNC.

        Art. 44.01, V.A.C.C.P. gives the State a limited right to appeal an

order of a court in a criminal case.       The State may appeal from an order

that:

        (1) dismisses an indictment, information, or complaint or any
        portion of an indictment, information, or complaint;

                                       6
       (2) arrests or modifies a judgment;

       (3) grants a new trial;

       (4) sustains a claim of former jeopardy;

       (5) 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; or

       (6) is issued under Chapter 64.

The order which the State seeks to appeal is an order granting a motion for a

judgment nunc pro tunc.     This order was made to correct a clerical error --

the court’s judgment incorrectly contained an affirmative finding of a deadly

weapon.      Such an order is not one of those listed in Art. 44.01 and thus

does constitute the type of order the State can appeal.

      Although in its notice of appeal, the State asserted that it was

appealing “an order that modifies the judgment” a reading of the record,

shows that this is not true.     The court’s order approving the entry of a

judgment nunc pro tunc did not modify the judgment but rather conformed

the final judgment paperwork to the events which occurred in the courtroom.

During appellant’s plea hearing, there was no discussion of an affirmative

finding of a deadly weapon by the parties and the trial court made no



                                       7
affirmative finding of a deadly weapon. Thus the original judgment was in

error when it contained an affirmative finding of a deadly weapon.        The

judge’s order approving the judgment nunc pro tunc which omitted the

affirmative finding of a deadly weapon in no way modified the court’s

judgment but rather accurately reflected it. This action did not come within

one of those situations from which the State is given the right to appeal.

The State’s appeal should be dismissed.

      WHEREFORE, PREMISES CONSIDERED, Appellee respectfully

requests that this Honorable Court dismiss the State’s appeal in this cause.

                                       Respectfully Submitted,

                                       /s/ Linda Icenhauer-Ramirez
                                       LINDA ICENHAUER-RAMIREZ
                                       Attorney at Law
                                       1103 Nueces
                                       Austin, Texas 78701
                                       (512) 477-7991
                                       FAX #: (512) 477-3580
                                       SBN: 10382944
                                       EMAIL: ljir@aol.com

                                       ATTORNEY FOR APPELLEE




                                       8
                  CERTIFICATE OF COMPLIANCE

     I hereby certify that this motion was computer generated and contains
1707 words, as calculated by the word count function on my computer.

                                     /s/ Linda Icenhauer-Ramirez
                                     LINDA ICENHAUER-RAMIREZ



                     CERTIFICATE OF SERVICE

       I, Linda Icenhauer-Ramirez, hereby certify that a true and correct
copy of the foregoing Appellee’s Motion to Dismiss the State’s Appeal was
e-served to Brian Erskine of the Hays County District Attorney's Office on
this the 10th day of April, 2015.

                                     /s/ Linda Icenhauer-Ramirez
                                     LINDA ICENHAUER-RAMIREZ




                                     9
