TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00633-CR
The State of Texas, Appellant
v.
John Allen Wachtendorf, Jr., Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 13-0197-K277, HONORABLE RICK J. KENNON, JUDGE PRESIDING
MEMORANDUM OPINION
John Allen Wachtendorf, Jr., filed a motion in the district court contending that the
results of a test performed on a sample of his blood should be suppressed. After Wachtendorf filed
his motion, the district court held a hearing to consider the matter. A few months later in another
hearing, the district court informed the parties that after considering the evidence, it concluded that
there were no exigent circumstances justifying the warrantless blood draw and stated that it was
“going to grant the motion to suppress the blood draw.” Upon hearing the district court’s ruling, the
State announced its intention to appeal the ruling.
On the same day that the district court announced its ruling, it signed an order
granting the motion to suppress. Over a month after the district court made its ruling, the State filed
a motion asking the district court to reconsider its prior ruling. When the district court held a hearing
on the motion, Wachtendorf urged that the State had waived its right to appeal because it did not
timely file its notice of appeal. As support for this, Wachtendorf contended that the district court
had signed an order granting the motion to suppress on the day that it announced its intention to
grant the motion. In response, the State argued that it was unaware of the order. During the hearing,
the district court determined that although it signed the order on the same day that it announced
its ruling, the order was not filed at that time by the district court clerk. After the oversight was
discovered, the previously signed order was filed by the district court clerk, but by that time, 80 days
had passed from the date that the order had been signed. Within a few days of the hearing and the
order being filed, the State filed its notice of appeal.
After the State filed its appeal, Wachtendorf filed a motion to dismiss contending
that this Court does not have jurisdiction over this appeal because the appeal is untimely. The Code
of Criminal Procedure sets out a deadline by which the State may appeal a trial court’s order granting
a motion to suppress. Tex. Code Crim. Proc. art. 44.01(a)(5), (d). In particular, the Code explains
that the State may not “make an appeal . . . later than the 20th day after the date on which the order
. . . is entered by the court.” Id. (emphasis added). In light of this deadline, Wachtendorf insists that
the State’s appeal is untimely because it was not filed within 20 days of the district court signing
the order granting the motion to suppress. On the other hand, the State contends that “it is
fundamentally unfair” to deny the State “its right to appeal when it had no notice of a signed order
from which it could appeal.” When presenting this argument, the State also argues that the alleged
unfairness is further compounded by the fact that the State cannot appeal oral rulings granting a
motion to suppress and, therefore, has to wait until it learns that the trial court has, in fact, signed
the order. See State v. Sanavongxay, 407 S.W.3d 252, 258 (Tex. Crim. App. 2012) (explaining that
although State may appeal certain orders by trial courts, “[a]n oral ruling is not ‘an order’”).
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When deciding what the phrase “entered by the court” means under article 44.01(d),
the court of criminal appeals determined that the phrase means “the signing of an order by the trial
judge.” State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex. Crim. App. 1991). In other words, the court
determined that “the appellate timetable for the State under Art. 44.01(d) begins running from the
date the trial judge signs his or her order.” Id. at 403; see also id. at 402 (explaining that “[e]stablishing
a definite starting date for calculating appellate timetables serves the interests of all parties”).
Although a majority of the court joined that result, a concurring opinion expressed the belief that
the more appropriate construction of article 44.01(d) starts the running of the appellate deadline
on “the date the signed order is file marked by the clerk.” Id. at 405 (McCormick, J., concurring).
A few months later, the court reaffirmed the majority’s position. See State ex rel.
Sutton v. Bage, 822 S.W.2d 55, 56-57 (Tex. Crim. App. 1992) (interpreting phrase “entered by the
court” as meaning signing of order by trial judge and concluding that State’s notice of appeal was
not timely). Accompanying the majority opinion was a dissenting opinion criticizing the majority’s
holding and the reasoning from Rosenbaum. See id. at 57 (McCormick, J., dissenting) (explaining
that “case presents in dramatic fashion the mischief that is potential in this Court’s holding in”
Rosenbaum). When criticizing the majority’s reasoning, the dissenting justice expressed that, like
in the present case, the State did not learn that the order had been signed until after the appellate
deadline had run. Id. at 58. Accordingly, the dissenting justice warned that the majority’s construction
will deny a party the “right to appeal in any case where a judge, without notice to the party, signs an
appealable order which does not get filed (entered) of record within the time required for notice of
appeal.” Id. Moreover, the dissenting justice reasoned that “when the law imposes a time limitation
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upon a party, it should concomitantly provide some notice to that party” and that “[t]he ‘signing’ of
an order is not notice.” Id.
Despite the criticisms expressed against the holding in Rosenbaum, the court has
recently sanctioned that holding again. See Sanavongxay, 407 S.W.3d at 258-59 (explaining that
article 44.01(d) authorizes State to appeal orders and that “our precedent requires that an order be
in writing” and signed by trial court); see also State v. Martinez, No. 04-14-00359-CR, 2014 Tex.
App. LEXIS 7138, at *2-3 (Tex. App.—San Antonio July 2, 2014, no pet.) (mem. op., not designated
for publication) (dismissing State’s appeal for want of jurisdiction when notice of appeal was not
timely); State v. Rico, No. 07-07-0092-CR, 2007 Tex. App. LEXIS 4849, at *3 (Tex. App.—Amarillo
June 21, 2007, order) (not designated for publication) (explaining that deadline under article 44.01(d)
is more than procedural one and is instead substantive limit on State’s authority to appeal, meaning
that day after deadline has passed, State’s ability to appeal “ceases and may not be revived”).
In light of the governing case law and given that the State’s notice of appeal was not
filed within 20 days of the district court signing its order granting the motion to suppress, we must
conclude that the State’s appeal was not timely filed. See Tex. Code Crim. Proc. art. 44.01(d);
Rosenbaum, 818 S.W.2d at 402. Although we recognize the limitations imposed by the court of
criminal appeals’ construction, we are nonetheless bound by that controlling precedent.
For these reasons, we grant Wachtendorf’s motion and dismiss the State’s appeal
for want of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (providing
that “[a] timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction”).
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David Puryear, Justice
Before Justices Puryear, Pemberton, and Bourland
Dismissed for Want of Jurisdiction
Filed: February 26, 2015
Do Not Publish
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