          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                       NO. PD-1809-10



                                  THE STATE OF TEXAS

                                                v.

                        SOUTCHAY SANAVONGXAY, Appellee

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SECOND COURT OF APPEALS
                            TARRANT COUNTY

       J OHNSON, J., delivered the opinion of the Court in which K ELLER, P.J., P RICE,
W OMACK, K EASLER, H ERVEY , C OCHRAN, and A LCALÁ, JJ., joined. M EYERS, J.,
dissented.

                                         OPINION

       Appellee was charged with an aggravated robbery committed on December 8, 2008. Before

the case was filed, prosecutors asked the Fort Worth Police Department to get a buccal sample from

appellee so that the state could make a confirmatory match. A preliminary CODIS match from

another source was received on January 28, 2009, and was posted on the Electronic Case Filing

System (ECFS) on July 27, 2009. On April 15, 2009, a Tarrant County grand jury indicted appellee

and, as an enhancement, alleged a prior conviction for felony theft in 1992.
                                                                                                                       2

         Defense counsel filed a discovery motion, file-stamped on November 6, 2009, that “moves

the [trial] Court to order the District Attorney to produce and permit counsel for the Defendant to

inspect, copy, and/or photograph the following designated items: 1. The physical evidence . . ., which

constitute or contain evidence material to any matter involved in the action and which are in the

possession, custody, or control of the state or any of its agencies.” The motion certifies that it was

served on the District Attorney on November 6, 2009,1 and is accompanied by an order.2 DNA is

physical evidence, and although the order is unsigned, the District Attorney was on notice that

appellee wished to have access to any such evidence that the state or any of its agencies possessed

or controlled.3 It is clear from the record that the District Attorney recognized this and, on December

17, 2009, sent to the defense notice of two DNA experts that she “knew were confirming the DNA

hit and sent an e-mail to defense counsel on January 4, 2010, “regarding who [her] DNA witnesses

would be . . ..”

         According to affidavits filed with this Court, one of the trial prosecutors made a number of

attempts to persuade the police department to obtain the buccal swab, but the swab was not

forthcoming until the prosecutor contacted the supervisor of the officer who was responsible for




         1
             Additional discovery motions were filed on December 30, 2009.

         2
           T EX . C O D E C RIM . P RO C . art. 3(g). On timely request of the defendant, notice of intent to introduce
evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If
the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final
conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the
notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the
alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state
give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

         3
            The record does not reveal whether the defendant made “a timely request to the attorney representing the
state for the notice,” thus obligating the district attorney to respond.
                                                                                                                        3

obtaining the sample.4 The sample was not collected until December 2009, more than ten months

after the preliminary CODIS match and more than four months after the preliminary CODIS report

was posted on ECFS. The confirming DNA report was not available until Tuesday, January 19,

2010, but was then “immediately” made available to defense counsel. On Wednesday, January 20,

defense counsel filed both a motion for a continuance in order to obtain an independent examination

of the DNA data and a motion to suppress the DNA evidence because of its tardy disclosure. Trial

on this case was set for Monday, January 25, 2010.

         The trial court held an in camera hearing on the defense motions on January 20. There is no

official record of that hearing, only the recollections of the parties. Defense counsel recalls that, in

the in camera hearing, the trial judge denied the defense motion for continuance because the state

had waited until immediately before trial to disclose the DNA results. The prosecutors recall that

the trial judge said, “Motion for Continuance denied, the DNA evidence is excluded, let’s go to trial.

Tell Fort Worth that I am tired of this.”5

         One prosecutor averred that the trial judge wrote “Denied 1-20-10 exclude DNA evidence”

on the defense motion for a continuance and “Denied 1-20-10 exclude DNA” on the defense motion


         4
             Trial was set for January 25, 2010. In a hearing on January 25, 2010, one of the prosecutors produced
documentation of her attempts to contact the detective to remind him to get a buccal swab from the defendant. The
case was first staffed in December of 2008. According to her documentation, before the case was filed, the
prosecutor asked the detective to get a buccal swab from appellee, but he did not do it. The prosecutor again asked
the detective to get a buccal swab when the preliminary CODIS hit was confirmed on January 29, 2009. That
CODIS hit was not posted to the ECFS until July 29.
           The next follow-up by the prosecutor was a telephone call eight and a half months after the second request,
on September 15, 2009. There followed another call on October 28, an e-mail on November 10, and calls on
November 17 and 20 and December 4. The prosecutor called the detective again on December 8, and apparently
still getting no response, called his sergeant the same day. After that call, the detective obtained a buccal swab from
appellee. The CODIS confirmation was posted to the ECFS on January 19, 2010.

         5
           Each prosecutor’s affidavit contained identical language as to the trial judge’s statement. Each of the
prosecutors stated that they attributed the trial judge’s comment to a recently completed capital trial that had been
continued for five weeks because of issues with getting DNA samples processed.
                                                                                                                     4

to suppress the DNA evidence. The other prosecutor averred that writing her ruling on the motion

itself was a common practice of the trial judge. The first prosecutor stated that, when he checked

the clerk’s file after filing the state’s notice of appeal, “Denied” had been scratched out on the

motion to suppress. While that is true, he fails to point out that the complete notation on the motion

to suppress is “Denied [unreadable] 1-20-10 exclude DNA evid. in error.”                           The “Denied

[unreadable]” portion is repeatedly struck through, making it difficult to decipher,6 and parts of the

“1-20-10 exclude DNA evid. in error” are struck through with three lines spread over the notation,

although that notation remains easily readable. The corresponding notation on the motion for

continuance is “Denied 1-20-10 exclude DNA evid.” There is ample support in the record that the

trial court orally denied appellee’s motion for continuance, e.g., “The defendant’s motion for

continuance, I denied,” and “The defense motion for continuance, I denied.” The bone of contention

here appears to be whether and what the trial court ruled as to the defense motion to suppress.

        On January 22, the state filed a “request” for the trial court to “enter findings of fact and

conclusions of law signifying the rationale of its order of exclusion.” The trial court did not rule on

that request, and three days later, on January 25, the state filed an interlocutory notice of appeal

pursuant to Tex. Code Crim. Proc. art. 44.01(a)(5).

        During a hearing on January 25, 2010, the trial court explained the notation on appellee’s

motion to suppress.

        THE COURT: State filed a request for findings of fact and conclusions of law based
        on my ruling on the motion for continuance. Defendant filed a motion for
        continuance . . . . I see that I wrote the ruling on the motion for continuance on the
        motion to suppress, which I should not have, which would be the reason for the


        6
            Based on the affidavit of C. Page Simpson, one of the prosecutors, the unreadable portion may say “DNA
out.”
                                                                                                             5

       misunderstanding, right? . . . [L]et me tell you what I ruled and then if y’all want a
       continuance–not a continuance but some time to examine the law, I’ll be happy to
       allow that.
                                                ...
                So here is the thing: The defendant’s motion for continuance, I denied. I
       marked out what I wrote on the motion to suppress–but not the exclude DNA
       evidence was [sic] because it was not timely provided, not because I was granting the
       motion to suppress, not because I think the police did anything wrong.
                                                ...
                I don’t remember, but I am concerned that we’re at a point where this case is
       over a year old and–amazingly, five days, six days before trial the defense gets notice
       of a DNA CODIS match–CODIS confirmation posted to ECFS on January the 19th.
       Today is the trial date; and that’s what I said would not be admissible, not because
       of any kind of police misconduct, not because I’m ruling on the motion to suppress,
       but I wrote on the motion for continuance DNA–exclude the DNA evidence because
       it was not timely filed.
                                                ...
                And that’s fine, knowing that we are not having a suppression hearing. I’m
       not making–in 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.
                And my concerns are, you said there was a CODIS match that was posted on
       November 18th, 2009. This case has been pending since February the 20th of 2009,
       and the evidence exchange docket was in July. Motions docket was September the
       18th, the status conference docket was November the 6th, and it was after the status
       conference that we get a CODIS confirmation. And the Court is of the opinion that
       that is an improperly late discovery; it’s just wrong. . . . [B]ut at some point the
       defense is entitled to get ready for trial and to know what’s ready.
                                                ...
                We haven’t heard evidence on the motion to suppress. What I ruled is the
       defense continuance is denied and the evidence was inadmissible because of
       discovery violations.
                Now, if y’all need time to brief that issue, you’ve got it. I’ll see you in an
       hour and a half. And I’m–let me say if you’ll object, we’ll be on the record whenever
       you want to. And I’m sorry that my ruling was unclear.

       From the record, we conclude that the trial court orally ruled on the defense motion for a

continuance and did not rule on the defense motion to suppress the DNA evidence, but, on its own

motion, chose to “exclude” the evidence because of the state’s tardy notice to the defense.7


       7
           The defense motion specifically based its motion to suppress on the state’s late disclosure of evidence.
                                                                                                   6

Regardless of the term used, the DNA evidence became unavailable to the state. On January 29, four

days after filing its notice of appeal, the state asked the trial court to enter a written order

memorializing its ruling on the admissibility of the DNA evidence so that the state could appeal the

unavailability of that evidence. No order was signed.

       The court of appeals noted that, shortly after filing its notice of appeal, the state filed an

original mandamus proceeding in the court of appeals “complaining about the trial court’s refusal

to enter a written order granting the motion.” That writ application was denied in a summary

opinion. The court of appeals summarized the trial court’s oral ruling as “what I have ruled is the

defense continuance was denied and the evidence was inadmissible because of discovery violations.”

Because the trial court’s notations on the defense motions were not memorialized in a written order,

the court of appeals dismissed the state’s appeal for want of jurisdiction, citing Tex. R. App. P.

43.2(f) and its own precedents, State v. Cox, 235 S.W.3d 283 (Tex. App.—Fort Worth 2007, no

pet.), and State v. Kibler, 874 S.W.2d 330 (Tex. App.—Fort Worth 1994, no pet.). See State v.

Sanavongxay, 331 S.W.3d 788 (Tex. App.—Fort Worth 2010).

       The state appealed the dismissal to this Court and raised four questions for review.

               1. Did the Court of Appeals err in concluding that a trial court can effectively
       interfere with or deny the State’s right to appeal as legislatively provided for under
       TEX . CODE CRIM . PROC. ANN . Art. 44.01(a)(5) (Vernon Supp. 2010), simply by
       refusing to sign a written order memorializing its ruling to exclude or suppress the
       State’s evidence?

                2. Should State v. Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991) and
       all its progeny generated statewide be revised to cover situations where a trial court
       refuses to sign a written order excluding or suppressing evidence in order to interfere
       or deny the State the right to appeal under TEX . CODE CRIM . PROC. ANN . Art.
       44.01(a)(5) (Vernon Supp. 2010)?

               3. Where a trial court intentionally refuses to sign a written order to exclude
                                                                                                              7

         or suppress evidence, is the oral order sufficient to grant the Court of Appeals
         jurisdiction on a State’s appeal made pursuant to TEX . CODE CRIM . PROC. ANN . Art.
         44.01(a)(5) (Vernon Supp. 2010)?

                 4. Did the Court of Appeals err in inferring that a hearing was necessary at the
         State’s behest notwithstanding [that] the appellate record[,] at the time notice of
         appeal was given pursuant to TEX . CODE CRIM . PROC. ANN . Art. 44.01(a)(5) (Vernon
         Supp. 2010)[,] was totally devoid of any evidence supporting the trial court’s action
         in excluding or suppressing the State’s DNA evidence?8

We conclude that the answer to each of the state’s questions for review is “no.”

         In its first issue, the state complains that the court of appeals erred when it concluded that “a

trial court can effectively interfere with or deny the State’s right to appeal . . . simply by refusing to

sign a written order memorializing its ruling to exclude or suppress the State’s evidence.” However,

the opinion of the court of appeals does not address the issue whether a trial court, by refusing to

enter a written order, can stymie the state’s right to an interlocutory appeal; that discussion appears

only in Chief Justice Livingston’s concurrence, State v. Sanavongxay, 331 S.W.3d 788, 789 (Tex.

App.—Fort Worth 2010) (Livingston, C.J., concurring), and we will not address it.

         In its fourth issue, the state complains that the court of appeals erred “in inferring that a

hearing was necessary at the state’s behest” and alleges that the appellate record “was totally devoid

of any evidence supporting the trial court’s action in excluding or suppressing the State’s DNA

evidence.” However, the opinion of the court of appeals does not address the issue of the necessity

of a hearing; that discussion appears only in Justice Walker’s concurrence, State v. Sanavongxay,

331 S.W.3d 788, 791 (Tex. App.—Fort Worth 2010) (Walker, J., concurring), and we will not

address it.



         8
           W e note that the tone and language that the state uses in both its grounds for review and its appellate brief
do not always reflect well upon the author or advance the state’s legitimate concerns.
                                                                                                       8

        In its second issue, the state urges that we should “revise” Rosenbaum and its progeny to

cover the circumstances that the state argues occurred in this case. However, Rosenbaum dealt with

distinguishable facts. The trial judge quashed a portion of an indictment and signed a written order

on June 28 that contained language that specified that the order was to be entered of record on July

2 and that it would become final in fifteen days, thus allowing the state to file an appeal on or before

July 16. The state filed its appeal on July 16, but the court of appeals calculated the time for appeal

from June 28, when the trial judge signed the order, and dismissed the appeal as untimely. This

Court reversed, finding that, “under the peculiar facts” of the case, the state’s filing was timely. That

ruling was based on the existence of a written order, the absence of which is precisely the issue here.

We overrule the state’s second issue.

        In its third issue, the state argues that an oral ruling should suffice to grant to the court of

appeals jurisdiction on the state’s appeal when, as here, the trial court made an oral ruling but has

allegedly refused to enter a written order. The problem with oral rulings is that there may be, and

often is, disagreement as to what was said and what the ruling was. That is not the case here only

because, after the unrecorded and variously remembered proceedings in the trial judge’s chambers,

more discussion occurred on the record. The legislature has chosen to permit appeals by the state

of “an order” that meets the statutory requirements. An oral ruling is not “an order” for the purposes

of establishing the decision of the trial court, precisely because of the fallibility of human memory.

Further, without “an order,” we have no evidence of the required finality of a ruling; an oral ruling

is subject to change after further discussion or presentation of contrary law or precedent. Only a

writing suffices.

        Pursuant to Tex. Code Crim. Proc. art. 44.01(a)(5), the state is entitled to appeal an order of
                                                                                                                         9

a court in a criminal case if the order grants a motion to suppress, 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 is of substantial importance in the case. TEX . CODE CRIM .

PROC. art. 44.01(a)(5). The filing of a notice of appeal by a party invokes the jurisdiction of the

appellate court over all parties to the trial court’s judgment or order appealed from. TEX . R. APP. P.

25.1(b). As Chief Justice Livingston noted in her concurring opinion, if a trial court refuses to, or

simply does not, enter a written order, the state’s right to appeal a pretrial ruling could be stymied,

but the statute states that the state may appeal “an order,” and our precedent requires that an order

be in writing.9 See, e.g., Rosenbaum, 818 S.W.2d at 402 (“Taking into account both the terms

         9
              The state argues that we should change the law to permit an appeal when a trial court makes an oral
ruling, but refuses to issue a written ruling, which is a prerequisite to showing a final, appealable judgment necessary
to the invocation of appellate court jurisdiction. But this change is not necessary; in such a situation, our current
procedures allow a litigant to adequate remedy through a petition for a writ of mandamus.
            Mandamus may be appropriate when a trial court refuses to rule. But requesting such a writ creates a
burden that the movant must carry before the writ may issue. See State ex rel. Young v. Sixth Judicial District Court
of Appeals, 236 S.W .3d 207, 210 (Tex. Crim. App. 2007) (relator is required to establish, among other things, that
“what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision.”).
            First, the state did not show that the oral ruling was final, in that the judge said she would consider the
matter after law was provided to her. See Patterson v. Planned Parenthood of Houston & SE Tex., 971 S.W .2d 439,
442 (Tex. 1998) (explaining that action is not ripe for judicial review if it involves “uncertain or contingent future
events that may not occur as anticipated, or indeed may not occur at all”). The record does not reflect that the state
returned with either the law supporting its position or an explanation about why it did not tender the supporting law.
            Second, Tex. R. App. P. 52.7(a)(1) requires relators to file, with a petition in an original proceeding in the
court of appeals, “a certified or sworn copy of every document that is material to the relator’s claim for relief and
that was filed in any underlying proceeding.” The state did not include an order with its request for findings of fact
and conclusions of law, nor did it submit suggested findings and conclusions. The state did tender an order to the
trial court that stated that she was excluding the DNA evidence (“Having considered the Defendant’s motion for
continuance, the Court denies said motion, but in the alternative, it is the order of the Court that the resulting [sic] of
the DNA testing be excluded from use in the above numbered and styled cause.”), but only on the same day on which
it filed its notice of appeal. The order is not signed. During the January 25 pretrial hearing, the trial court spoke of
having had five settings before trial. The “Record of Criminal Actions” records numerous filings by both sides and
notes up to eight occasions on which a court hearing of some sort appears to have occurred–initial appearance;
conditions of bond added; consultation; evidence exchange; motions; status conference; bond conditions amended;
motions hearing on the record–but it does not note a hearing on the defense motion to suppress, the state’s request
for a written order on the exclusion of the DNA evidence, or the state’s request for findings of fact and conclusions
of law. According to the affidavit of assistant district attorney Bill Vassar, when he presented the request for
findings and conclusions, the trial judge asked, “W hy didn’t we do this on the record, that’s how it’s supposed to
work.” Instead of scheduling a hearing, the state sought relief from the appellate court, which, in light of the state’s
failure to prove the finality of the rulings and to provide record evidence of a refusal by the trial court to rule, had no
                                                                                                                      10

‘entered’ and ‘court’ in the phrase ‘entered by the court’ in Art. 44.01(d), our reading of this phrase

in the context of the statute as a whole leads to an interpretation that in this case the term ‘entered

by the court’ encompasses the signing of an order by the trial judge.”). An order cannot be signed

unless it is written. In this case, there is no order from which to appeal, that is, no writing that

memorializes the trial court’s informal notations on the motion to suppress or the trial judge’s oral

explanation of her non-ruling.

         We conclude that, because there is no written order from which to appeal, the court of

appeals correctly held that it has no jurisdiction over the state’s appeal, and we affirm the judgment

of that court.



Delivered: January 25, 2012
Publish




authority to act.
          Although properly declined on its merits, the state’s mandamus was the proper avenue to address the
situation described by the state. Had the state established that “what he seeks to compel is a ministerial act, not
involving a discretionary or judicial decision,” the state would be entitled to a writ of mandamus to compel the trial
court to reduce her oral ruling to writing because such a ruling is a ministerial act that is the proper subject of a
mandamus. See State ex rel. Young, 236 S.W .3d at 210; Patterson, 971 S.W .2d 442. In this case, it was not the
absence of a remedy, but the State’s misapplication of the available remedy, that has resulted in its failure to obtain
relief from the trial court’s purported conduct.
