                                                              ACCEPTED
                                                          04-15-00395-CR
                                              FOURTH COURT OF APPEALS
                                                   SAN ANTONIO, TEXAS
                                                    9/28/2015 10:11:21 AM
                                                           KEITH HOTTLE
                                                                   CLERK




       NO. 04-15-00395-CR                 FILED IN
                                   4th COURT OF APPEALS
                                    SAN ANTONIO, TEXAS

IN THE FOURTH COURT OF APPEALS    09/28/2015 10:11:21 AM

       SAN ANTONIO, TEXAS            KEITH E. HOTTLE
                                           Clerk




       STATE OF TEXAS,
          Appellant,
             V.
       JAMES RAY JUNEK,
           Appellee.

   MOTION TO DISMISS APPEAL
   FOR WANT OF JURISDICTION


                        DARREN LEE UMPHREY
                           Texas Bar No. 00792885
             Attorney for Appellee James Ray Junek
                     246 W. San Antonio, Suite 201
                       New Braunfels, Texas 78130
                            (830) 627-3123-Phone
                              (830) 627-3122 -Fax
                     CAUSE NO. 04-15-00395-CR
TPffi STATE OF TEXAS           §                   IN THE FOURTH
   Appellant                   §
                               §                COURT OF APPEALS
VS.                            §
                               §
JAMES RAY JUNEK                §              SAN ANTONIO, TEXAS
   Appellee                    §

               APPELLEE'S MOTION TO DISMISS APPEAL
                    FOR WANT OF JURISDICTION

TO THE HONORABLE FOURTH COURT OF APPEALS:
      NOW COMES JAMES RAY JUNEK, Appellee, in the above entitled and
numbered cause and moves the Court the grant this Motion to Dismiss Appeal for
Want of Jurisdiction and in support of such motion shows:
                                   Background

      On May 6, 2015, in the County Court at Law of Kerr County, Texas, the
Appellee's Motion to Suppress was granted by the Honorable Susan Harris. On
May 13, 2015 a Notice of Appeal was signed by Joseph A. Soane, III, Assistant
Kerr County Attorney. Said document was filed for record on May 14, 2015 with
the County Clerk of Kerr County, Texas. Assistant Prosecuting Attorney, Joseph
A. Soane, III also filed an affidavit on May 14, 2015.   The affidavit states:
            "My name is Joseph Soane, and I am the Assistant Kerr County
      Attorney for Kerr County, Texas, in the above styled and numbered
      cause. I certify to the trial court that the appeal is not taken for
      purposes of delay and that the evidence is of substantial importance in
      the case."
      This certification was signed by Joseph A. Soane, IIT Mr. Soane is not the
elected county attorney for Kerr County, Texas. The elected county attorney for
Kerr County, Texas is Heather Stebbins. Nowhere in either the Notice of Appeal or
certification does Ms. Stebbins name and/or her signature authorizing this specific
appeal appear as required by Tex. Code Crim. Proc. Art. 44.0l(i).
                             The Jurisdictional Statute

      Jurisdiction concerns the power of a court to hear and determine a case.
Appellate jurisdiction is invoked by giving notice of appeal. The notice of appeal
must be timely and must be in writing to invoke a court of appeals' jurisdiction, hi
addition, in State-prosecuted appeals, the failure of the elected prosecuting
attorney, as opposed to an assistant to make the appeal is a jurisdictional defect.

      Tex. Code Crim. Proc. Art. 44.01 sets forth the grounds upon which an
appeal may be made by the State. Article 44.01 further provides that such an
appeal is to be made by the Prosecuting Attorney. Specifically, Article 44.01(i)
reads as follows, "in this article, 'prosecuting attorney', means the County
Attorney, District Attorney or Criminal District Attorney who has the primary
responsibility of prosecuting cases in the Court hearing the case and does not
include an Assistant Prosecuting Attorney" (emphasis added). See State v. Muller
829 S.W.2d 805,809 (Tex. Crim. App. 1992).
      Both the Notice of Appeal and certification required by 44.01(a)(5) are
clearly signed by Joseph A. Soane, III, Assistant Kerr County Attorney, who is not
the "Prosecuting Attorney" as defmed by Tex. Code Crim. Proc. Art. 44.0l(i).
Therefore, the appeal was never properly made.

      Appellee would further show that since the appeal was not properly
perfected and May 26, 2015 was the last day for said appeal to be perfected, the
Court does not have jurisdiction of this matter. Additionally, since the time for
perfecting the appeal has exphed, the office of the County Attorney cannot correct
the defect by filing an amended notice. Nothing in the Notice of Appeal or
Affidavit, each signed by the "assistant" prosecuting attorney, hints in the least that
the elected county attorney authorized this specific appeal. If there is no
compliance within the twenty-day window, the window is thereafter closed. A
defective notice of appeal is not susceptible to correction through application of
'amendment and cure' provision of the Texas Rules of Appellate Procedure. See
Mw//er, 829 S.W.2dat812.
      The fihng of a notice of appeal by an assistant prosecuting attorney is not a
defect of appellate procedure; it is a failure to abide by the substantive statutory
requirements of Tex.Code Crim.Proc. art. 44.01. See Muller, 829 S.W.2d at 812.

      WHEREFORE, Appellee prays the Court grant this Motion and let the
ruling of the Honorable Susan Harris stand by dismissing the appeal for want of
jurisdiction. Appellee prays for such other and further relief to which he may show
himself entitled.

                                      Respectfully submitted.
                                      Law Offices of Darren Lee Umphrey
                                      246 W. San Antonio Street
                                      Suite 201
                                      New Braunfels, Texas 78130
                                      Tel: (830) 627-3123
                                      Fax: (830) 627-3122

                                          DARREN J^E UMPHREY
                                          State Bar No. 00792885
                                          Attorney for JAMES JUNEK,
                                                         Appellee
                                 Certificate of Service
       I certify that a true copy of the above was served on each attorney of record
or party by hand dehvery, e-mail, FAX or certified mail at the last known address
in accordance with the Texas Rules of Criminal Procedure on
            ^                            , 2015.


                                         D ^ e n Lee Umphrey
                                         Attorney for JAMES RAY JUNEK,
                                                        Appellee
