PD-0280-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/2/2015 3:29:07 PM
Accepted 4/2/2015 4:22:47 PM
ABEL ACOSTA
No. PD-0280-15 CLERK
In the
COURT OF CRIMINAL APPEALS
of the
STATE OF TEXAS
THE STATE OF TEXAS, Petitioner
JOHN ALLEN WACHTENDORF, JR., Respondent
RESPONSE TO PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN
IN CAUSE NUMBER 03-14-00633-CR
APPEAL FROM THE 368TH DISTRICT COURT
OF WILLIAMSON COUNTY IN CAUSE NUMBER 13-0197-K277
Kristen Jernigan
Attorney for Respondent
State Bar Number 90001898
April 2, 2015 207 S. Austin Ave.
April 2, 2015
Georgetown, Texas 78626
(512)904-0123
(512) 931-3650 (fax)
TABLE OF CONTENTS
INDEX OF AUTHORITIES iii
S TAT E M E N T R E G A R D I N G O R A L A R G U M E N T i v
S TAT E M E N T OF THE CASE 1
S TAT E M E N T OF PROCEDURAL HISTORY 1
ARGUMENT 2
DISCUSSION 3
P R AY E R FOR RELIEF 8
C E RT I F I C AT E OF SERVICE 8
C E RT I F I C AT E OF WORD COUNT .9
APPENDIX 10
INDEX OF AUTHORITIES
CASES
Griffith v. State, 976 S.W.2d 241 (Tex. App.—Amarillo 1998) 3,10
Sholars v. State, 312 S.W.2d 694 (Tex. App.—Houston [14th Dist.] 2009).. 2,3, 6
Stills v. State, 492 S.W.2d 478 (Tex. Crim. App. 1973) 2,3,6
STATUTES & RULES
Te x . Code Crim. Pro. Art. 38.03 3,6
Te x . Penal Code § 2.01 3,6
U.S. Const. Amend. I V, V 3,6
in
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 39.1, Petitioner requests oral
argument only in the event the State is granted oral argument.
IV
No. PD-0280-15
In the
COURT OF CRIMINAL APPEALS
of the
STATE OF TEXAS
THE STATE OF TEXAS, Petitioner
JOHN ALLEN WACHTENDORF, JR., Respondent
RESPONSE TO PETITION FOR DISCRETIONARY REVIEW
STATEMENT OF THE CASE
On January 16, 2014, Appellee filed a Motion to Suppress based on the
United States Supreme Court's holding in Missouri v. McNeely, 133 S.Ct. 1522
(2013). On July 7, 2014, the Court granted Appellant's Motion to Suppress on the
record in open Court and in writing. The State filed Notice of Appeal of the
Court's order eighty-five days later on September 30, 2014.
STATEMENT OF PROCEDURAL HISTORY
On October 20, 2014, Respondent filed a Motion to Dismiss for Lack of
Jurisdiction based on the State's untimely-filed Notice of Appeal. On February
26, 2015, the Third Court of Appeals granted Respondent's Motion to Dismiss for
Lack of Jurisdiction and dismissed the State's appeal. The State of Texas v. John
Allen Wachtendorf, Jr., No. 03-14-00633-CR (Tex. App.—Austin, delivered
February 26, 2015). The State did not file a Motion for Rehearing or Motion for
Reconsideration En Banc.
THE STATE'S GROUNDS FOR REVIEW
As alleged in the State's Petition, its sole ground for review is as follows:
This Court should revisit the existing precedent that the 3rd Court of
Appeals misinterpreted, to clarify for the various courts of appeal, and
to avoid a manifest unfairness in future State's appeals, that the strict
timeline for the State's notice of appeal is predicated upon and
requires that the State has adequate notice of the existence of a signed
appealable order.
State's Petition at 7.
ARGUMENT
The State's contention seems to be that the Third Court of Appeals has
misconstrued existing precedent in holding that, in order for its Notice of Appeal to
be timely, the State must file that notice on or before the twentieth day after the
trial court has signed the appealable order. However, as discussed below, the
Third Court followed existing precedent to the tee. Further, the State fails to set
6
forth a reason for the grant of discretionary review pursuant to Texas Rule of
Appellate Procedure Article 66.3.
The relevant timeline of events is as follows: on January 16, 2014, Appellee
filed a Motion to Suppress based on the United States Supreme Court's holding in
Missouri v. McNeely, 133 S.Ct. 1522 (2013). (CR: 27-29). Appellee argued that
the blood test results in this case should be suppressed because Appellee's blood
was seized without a warrant or consent where no exigent circumstances existed.
(CR: 27-29). On February 14, 2014, the trial court held a hearing on Appellee's
Motion to Suppress and at the close of the evidence, the Court indicated it would
announce its ruling at a later date. (RR2: 67). On July 7, 2014, the parties
reconvened and the trial judge, in open court, entered his ruling on the record.
Specifically, the trial court stated, "And so based on the evidence, I do not find that
there are exigent circumstances, and I am going to grant the motion to suppress the
blood draw." (RR3: 5). To which the State replied, "Judge, we'll prepare a notice
of appeal signed by Ms. Duty, the elected DA, to appeal the Court's ruling." (RR3:
5). The same date, the trial court signed a written order reflecting its ruling. (CR:
43). The State filed its notice of appeal on September 30, 2014, eighty-five days
after the Court entered its ruling. (CR: 48).
In its petition, the State argues that is unfair that it was unaware that the trial
court signed an order granting Respondent's Motion to Suppress, and therefore, it
should be allowed to ignore Texas Rule of Procedure Article 44.01(d), which
requires the State to file its Notice of Appeal not later than the twentieth day after
which an order is signed by the trial court. Tex. Code Crim. Pro. Art. 44.01(d).
The State's argument is disingenuous for two reasons. First, it is quite clear
from the record that the State had notice of the trial court's ruling. (RR3: 5).
Second, the State fails to show any attempt on its part to inquire as to whether an
order had been signed. A simple call to the Court would have answered that
question had the State been unsure as to whether an order had actually been signed.
As for the Court of Appeals' opinion, the Third Court correctly reasoned that
when deciding the State's appellate timetable and what the phrase "entered by the
court" means under article 44.01(d), it is bound by this Court's holding that the
appellate timetable for the State pursuant to Code of Criminal Procedure Article
44.01(d) begins running when the trial court signs the order to be appealed. See
Opinion at 3, citing State v. Rosenbaum, 818 S.W.2d 398, 403 (Tex. Crim. App.
1991). The Third Court explained further that, according to existing Court of
Criminal Appeals' precedent, the signing of the order serves as the entry date for
the order. Opinion at 3, Id at 402. The Third Court recognized this Court's
affirmation of this precedent by citing Sutton v. Bage, which interpreted the phrase
"entered by the Court" as meaning the signing of the order by the trial judge.
Opinion at 4, Sutton v. Bage, 822 S.W.2d 55, 56-57 (Tex. Crim. App. 1992).
Quite simply, the Third Court of Appeals misconstrued nothing, but rather,
followed existing Court of Criminal Appeals' precedent explicitly. To complain,
as the State does, that this precedent, which has stood for almost twenty-five years,
is too onerous on the State to be fair, is a desperate attempt at explaining away its
lack of diligence in insuring its compliance with the well-established statutory
requirements of Code of Criminal Procedure Article 44.01(d). This is not a reason
for the grant of discretionary review as set out in Texas Rule of Appellate
Procedure Article 66.3.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that the
Court of Criminal Appeals refuse the State's Petition for Discretionary Review.
Respectfully submitted,
/s/ Kristen Jeraigan
Kristen Jernigan
Attorney for Respondent
State Bar Number 90001898
207 S. Austin Ave.
Georgetown, Texas 78626
(512)904-0123
(512) 931-3650 (fax)
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this the 2nd day of April 2015, a
copy of the foregoing Response to Petition for Discretionary Review was e-mailed
to John C. Prezas, Appellate Attorney for the Williamson County District
Attorney's Office at jprezas@wilco.org and mailed to Lisa McMinn, State
Prosecuting Attorney's Office, P.O. Box 13406, Austin, Texas 78711-3406.
/s/ Kristen Jernigan
Kristen Jernigan
10
CERTIFICATE OF WORD COUNT
The undersigned hereby certifies that the foregoing document consists of
2,438 words in compliance with Texas Rule of Appellate Procedure 9.4.
/s/ Kristen Jernigan
Kristen Jernigan
11
APPENDIX
12
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
amotion 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'").
2
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." Statev. 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 "[establishing
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 leam 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
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 Wachtendorfs 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").
David Puryear, Justice
Before Justices Puryear, Pemberton, and Bourland
Dismissed for Want of Jurisdiction
Filed: February 26,2015
Do Not Publish