Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00394-CR
No. 04-15-00395-CR
The STATE of Texas,
Appellant
v.
James
James Ray JUNEK,
Appellee
From the County Court at Law, Kerr County, Texas
Trial Court Nos. CR14-0145 & CR14-0146
Honorable Susan Harris, Judge Presiding
PER CURIAM
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Jason Pulliam, Justice
Delivered and Filed: November 4, 2015
APPEAL DISMISSED FOR WANT OF JURISDICTION
The State of Texas appeals the trial court’s order granting Appellee James Ray Junek’s
motion to suppress. The trial court signed the order on May 6, 2015. On May 14, 2015, the State
timely filed a notice of appeal signed by Joseph Soane, Assistant Kerr County Attorney. On
September 28, 2015, Junek filed a motion to dismiss the State’s appeal for want of jurisdiction
based upon the State’s failure to comply with Texas Code of Criminal Procedure article 44.01(i).
The State did not file a response.
04-15-00394-CR & 04-15-00395-CR
In the motion to dismiss, Junek contends the notice of appeal filed by the State was invalid
because Article 44.01 requires that a State’s notice of appeal be signed by the prosecuting attorney
or in some way manifest some indication the prosecuting attorney intended to or authorized the
appeal. Junek contends the State’s noncompliance with the provisions of Article 44.01 deprives
this court of jurisdiction.
Texas Code of Criminal Procedure art. 44.01 states “[t]he prosecuting attorney may not
make an appeal … later than the 15th day after the date on which the order, ruling, or sentence to
be appealed is entered by the court.” TEX. CODE CRIM. PROC. ANN. art. 44.01(d) (West Supp.
2014). “Prosecuting attorney” is defined as “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.” Id. art. 44.01(i).
In State v. Muller, the Texas Court of Criminal Appeals determined that Article 44.01(d)
authorizes only the prosecuting attorney (in this case the elected Kerr County Attorney) “to make
an appeal by personally authorizing—in some fashion—the specific notice of appeal in question”
prior to the expiration of the deadline for perfecting an appeal. See State v. Muller, 829 S.W.2d
805, 810 (Tex. Crim. App. 1992) (internal quotes omitted). The court stated in Muller:
We do not suggest that Article 44.01 necessarily requires that a State’s notice of
appeal must, in all cases, reflect the personal signature of the prosecuting attorney.
However, the plain meaning of the literal text of Article 44.01(d) requires the
prosecuting attorney to “make an appeal” by personally authorizing—in some
fashion—the specific notice of appeal in question. More specifically, to comply
with the statute, he must either physically sign the notice of appeal or personally
instruct and authorize a subordinate to sign the specific notice of appeal in question.
[Footnote omitted]. Because of the jurisdictional limitations of Article 44.01 ... we
further read the statute to require this personal authorization to occur prior to the
expiration of the fifteen day window of appeal.
Id.
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04-15-00394-CR & 04-15-00395-CR
When an appellee raises an issue concerning the prosecuting attorney’s personal
authorization of the State’s appeal, the State bears the burden to prove “the appeal was personally,
expressly and specifically authorized by the prosecuting attorney.” Muller, 829 S.W.2d at 810 n.6.
To satisfy this burden, the appellate record must clearly reflect the prosecuting attorney’s personal
authorization of the specific notice of appeal filed in a given case. Id. “Evidence of a general
delegation of authority to an assistant does not qualify under the statute.” Id.
Thus, Article 44.01 requires the elected “prosecuting attorney”, not an assistant attorney,
to make the State’s notice of appeal within the prescribed fifteen-day time period, 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. See Muller, 829 S.W.2d at 807-12. A prosecuting
attorney’s general delegation of authority to an assistant is insufficient, and the use of a “signature
stamp, without more” does not comply with the statute. See id. (general delegation of authority
does not qualify under the statute); see also State v. Shelton, 830 S.W.2d 605, 606 (Tex. Crim.
App. 1992) (use of a “signature stamp, without more” does not comply with the statute).
In this case, the record reveals the notice of appeal was filed by and signed by Joseph
Soane, Assistant Kerr County Attorney. The notice of appeal states, “NOW COMES THE STATE
OF TEXAS, by and through its prosecuting attorney Assistant Kerr County Attorney, Joseph
Soane….” However, following Muller, this statement is a statement of a general delegation of
authority, rather than a case-specific, express authorization. Nothing in the notice of appeal or in
the record reveals any authorization from the prosecuting attorney of Kerr County for Mr. Soane
to file the notice of appeal in this specific case. The State has provided no response nor shown the
proper authorization under Muller.
The time to file an amended notice of appeal has expired. Thus, the State has failed to
satisfy its burden of proof to show the appeal was “personally, expressly and specifically
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04-15-00394-CR & 04-15-00395-CR
authorized by the prosecuting attorney.” For this reason, this court must conclude the notice of
appeal was defective for failure to comply with Article 44.01, and this court does not have
jurisdiction over this appeal.
Appellee’s motion to dismiss is granted. These appeals are dismissed. All pending
motions are denied as moot.
PER CURIAM
DO NOT PUBLISH
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