                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00041-CR

THE STATE OF TEXAS,
                                                            Appellant
v.

ELIZABETH ANN BERRY,
                                                            Appellee


                      From the County Court at Law No. 1
                            Johnson County, Texas
                         Trial Court No. M200802222


                          MEMORANDUM OPINION


      Elizabeth Ann Berry was charged with driving while intoxicated. TEX. PENAL

CODE ANN. § 49.04(c) (Vernon 2003). Berry filed a motion to suppress the blood test

results because, she argued, the warrant issued for the blood draw was not based on

sufficient reasonable suspicion or probable cause. The trial court granted the motion to

suppress and the State appealed.      See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5)

(Vernon Supp. 2008). Because we have no jurisdiction of this appeal, it is dismissed.

      At first glance, it appears that the State timely filed a sufficient notice of appeal

within 20 days from the date the trial court entered its ruling on the motion to suppress.

See TEX. CODE CRIM. PROC. ANN. art. 44.01(a) & (d) (Vernon Supp. 2008). However,
Berry alleges in a motion to dismiss the State’s appeal filed in this Court that an

assistant County Attorney rather than the elected County Attorney “made” the State’s

appeal in violation of article 44.01 of the Texas Code of Criminal Procedure. Thus,

Berry argues, the State failed to properly perfect its appeal and this Court has no

jurisdiction of the appeal. The State argues in response that the language used in the

notice of appeal, “…by and through her County Attorney/Assistant County

Attorney,…,” is sufficient to satisfy article 44.01. We disagree with the State.

        It has been long held that “[a]rticle 44.01 requires the elected ‘prosecuting

attorney’ (and not his assistant) to ‘make’ the State's notice of appeal, within the

prescribed fifteen-day time period [now a 20 day time period under the statute], either

through the physical act of signing the notice or by personally and expressly

authorizing an assistant to file a specific notice of appeal on his behalf.” State v. Muller,

829 S.W.2d 805, 811-812 (Tex. Crim. App. 1992). The Court of Criminal Appeals has

further held that

        Whenever a question is legitimately raised concerning the prosecuting
        attorney's personal authorization of a State's appeal, the State bears the
        burden of proving that the appeal in question was personally, expressly
        and specifically authorized by the prosecuting attorney. Thus, the
        appellate record must clearly reflect the prosecuting attorney's personal
        authorization of the specific notice of appeal filed in a given case. Without
        a signature or other written expressed authorization, as reflected in the
        appellate record, there would be no guarantee that the only person
        permitted by statute to make an appeal on behalf of the State actually
        participated in the process. Evidence of a general delegation of authority
        to an assistant does not qualify under the statute.

Id. at 810 n. 6.

        Berry raised a legitimate question concerning the elected County Attorney’s

personal authorization of the State’s appeal in this case. And there is nothing in the

State v. Berry                                                                          Page 2
record to clearly reflect that the elected County Attorney of Johnson County gave his

personal authorization to file the notice of appeal.       Further, a statement such as

presented in this case that the appeal is taken “by and through her County

Attorney/Assistant County Attorney” is not, by itself, sufficient to fulfill the

requirement of the statute, “as it gives no assurance that the prosecuting attorney has

performed the safeguard function demanded by a plain reading of the statute.” Id. at

811.

        Although the notice of appeal filed by the State appeared to be timely, the notice

was not personally authorized by the elected County Attorney of Johnson County. See

TEX. CODE CRIM. PROC. ANN. art. 44.01(a) & (d) (Vernon Supp. 2008). Thus, by the time

the twenty-day period to file the notice of appeal had run, the State had not complied

with the provisions of article 44.01 in its entirety. Accordingly, we have no jurisdiction

to review the merits of the State’s appeal. See Muller, 829 S.W.2d at 813.

        Berry’s motion to dismiss is granted, and the State’s appeal is dismissed.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Motion granted
Appeal dismissed
Opinion delivered and filed July 22, 2009
Do not publish
[CR25]




State v. Berry                                                                       Page 3
