      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00590-CR



                                  The State of Texas, Appellant

                                                  v.

                                 Robert Edward Miller, Appellee




             FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
               NO. 599,258, HONORABLE DAVID CRAIN, JUDGE PRESIDING



                                           OPINION


               The State seeks to appeal the county court at law’s order granting appellee Robert

Edward Miller’s pretrial motion to suppress evidence. Because we conclude that we do not have

jurisdiction to consider the State’s appeal, we will dismiss it.

               The State filed an information accusing Miller of driving while intoxicated. Tex. Pen.

Code Ann. § 49.04 (West 2003). Miller filed a motion to suppress all evidence of his intoxication

alleging, among other things, that the evidence was obtained in violation of the constitutions and

laws of the United States and Texas. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp.

2003). The court scheduled a pretrial hearing to consider the motion.1 When the case was called,

Miller announced ready. The State announced that it was not ready and requested a continuance.


  1
     We infer from the comments of the parties below that this was the third setting, Miller and the
State having each been previously granted a continuance.
The State explained that the arresting officer had on the previous day faxed a letter to the prosecutor

stating that he would not appear, despite being served with a subpoena, because he would be “in

class . . . for training.” The court overruled the State’s motion for continuance. The events giving

rise to this appeal then followed:


        MR. KINARD [defense counsel]: We would ask now that the motion to suppress
                                      be held on the motions themselves, as the case
                                      law grants authority for.[2]

        MR. SWAIM [prosecutor]: If Your Honor is going to rule on the motion in the Court
                                file, we also ask you to take notice of the Probable Cause
                                Affidavit that’s in there, and has been ruled on by a
                                magistrate, and ask that you deny his motion.

        THE COURT:              I’ll grant the motion to suppress based on the lack of
                                testimony of the live witness, the arresting officer.


                The State may appeal an order that “grants a motion to suppress evidence.” Tex.

Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2003). This statute has been interpreted

narrowly. Stating that “[t]rial judges are entitled to control their dockets and dispense justice without

undue interference from appellate bodies,” the court of criminal appeals held that article 44.01(a)(5)

does not permit the State to appeal “any pretrial order that exclude[s] evidence.” State v. Roberts,

940 S.W.2d 655, 660 (Tex. Crim. App. 1996) (appeal of order excluding evidence as hearsay).

Instead, “the phrase ‘motion to suppress evidence’ as used in art. 44.01(a)(5) is limited to motions

which seek to suppress evidence on the basis that such evidence was illegally obtained.” Id. Citing

Roberts, the court later held, “Article 44.01(a)(5) does not authorize the State to appeal an order by


    2
     See Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002); Rodriguez v. State, 844
S.W.2d 744, 745 (Tex. Crim. App. 1992); Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6) (West
1989).

                                                   2
the trial court which excludes evidence for reasons other than that the evidence was illegally

obtained.” State v. Taft, 958 S.W.2d 842, 843 (Tex. Crim. App. 1998) (appeal of order excluding

evidence as unfairly prejudicial).

               Roberts and Taft make it clear that article 44.01(a)(5) allows the State to appeal, and

correspondingly allows appellate courts to decide, only the question of whether evidence ordered

suppressed was lawfully or unlawfully obtained. Although Miller’s motion to suppress asserted that

the evidence had been unlawfully obtained, the trial court did not address the merits of that assertion

and did not grant the motion for that reason. Reflecting this, the issue presented in the State’s brief

is: “When a court grants a hearing on a pretrial motion to suppress, does the court err in suppressing

the State’s evidence ‘based on the lack of live testimony,’ without considering other, competent

evidence authorized under Art. 28.01 § 1(6) and proffered to meet the State’s burden of establishing

lawfulness?” This is not an issue article 44.01(a)(5) permits the State to raise on appeal, or this

Court to decide.

               The appeal is dismissed.




                                               Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Dismissed

Filed: July 11, 2003

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