PD-0280-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/19/2015 2:15:45 PM
June 19, 2015 Accepted 6/19/2015 2:45:15 PM
ABEL ACOSTA
No. PD-0280-15 CLERK
In the
COURT OF CRIMINAL APPEALS
of the
STATE OF TEXAS
________________________
THE STATE OF TEXAS, Petitioner
v.
JOHN ALLEN WACHTENDORF, JR., Respondent
___________________________
RESPONDENT’S BRIEF
_____________________________
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
207 S. Austin Ave.
Georgetown, Texas 78626
(512) 904-0123
(512) 931-3650 (fax)
kristen@txcrimapp.com
TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF PROCEDURAL FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
REPLY TO STATE’S ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. The State simply re-states current binding precedent and does
not advance any legal argument as to why it is entitled to ignore
the statutory requirements of Texas Code of Criminal
Procedure Article 44.01.
II. The Third Court of Appeals loyally adhered to this Court’s
existing, binding precedent.
III. There is no reason to revisit existing, binding precedent.
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
ii
INDEX OF AUTHORITIES
CASES
Missouri v. McNeely, 133 S.Ct. 1522 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 2
Montalvo v. State, 846 S.W.2d 133 (Tex. App.—Austin 1993) . . . . . . . . . . . . . . . 4
State v. Cowsert, 207 S.W.3d 347 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . .4
State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . .6
State v. Muller, 829 S.W.2d 805 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . 5
State v. Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991) . . . . . . . . . . . . 3, 5, 7
Sutton v. Bage, 822 S.W.2d 55 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . .7, 8
State v. Wachtendorf, No. 03-14-00633-CR
(Tex. App.—Austin, delivered February 26, 2015) . . . . . . . . . 2
STATUTES & RULES
TEX. CODE CRIM. PRO. Art. 44.01(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 7
iii
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
v.
JOHN ALLEN WACHTENDORF, JR., Respondent
___________________________
RESPONDENT’S BRIEF
_____________________________
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.1 The State filed Notice of Appeal of the
Court’s order eighty-five days later on September 30, 2014.
1
The State contends in its Statement of the Case that the trial court granted Respondent’s
Motion to Suppress outside the State’s presence and without the State’s knowledge. See
State’s Brief at 5. This statement is untrue as the Court issued its ruling in open Court on the
record with both parties present. (RR3: 5).
1
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.
STATEMENT OF FACTS
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.2 (RR3: 1-2). 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.”
2
In fact, the volume of the Reporter’s Record containing the Court’s ruling is entitled “Ruling
on Motion to Suppress.” (RR3: 1).
2
(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). On
August 19, 2014, the State filed a Motion for Reconsideration of the Court’s prior
ruling on Appellee’s Motion to Suppress. (CR: 41-42). On September 25, 2014, a
hearing was held on the State’s motion and the Court declined to reconsider its
ruling. (RR4: 1). The State filed its notice of appeal on September 30, 2014,
eighty-five days after the Court entered its ruling. (CR: 48).
REPLY TO STATE’S ARGUMENTS
IV. The State simply re-states current binding precedent and
does not advance any legal argument as to why it is entitled
to ignore the statutory requirements of Texas Code of
Criminal Procedure Article 44.01.
In its first point, the State asserts that “the timeframe for filing a State’s
notice of appeal begins on the day the trial court signs the appealable order” and
cites State v. Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991). As this Court
is aware, Texas Code of Criminal Procedure Article 44.01(d) grants the State the
right to appeal the granting of a motion to suppress and requires, in part: “The
prosecuting attorney may not make an appeal under Subsection (a) or (b) of this
article later than the 20th day after the day on which the order, ruling, or sentence to
be appealed is entered by the Court.” TEX. CODE CRIM. PRO. Art. 44.01(d).
3
The State argues that because it was not aware that the Court had signed the
order granting Appellant’s Motion to Suppress, it should be excused from
complying with the requirements of Article 44.01. The State’s argument is
disingenuous for three reasons.
First, it is quite clear from the record that the State had notice of the trial
court’s ruling. (RR3: 5). When the trial court announced its ruling on July 7,
2014, the prosecutor stated, “Judge, we'll prepare a notice of appeal signed by Ms.
Duty, the elected DA, to appeal the Court's ruling.” (RR3: 5). The prosecutor
continued, “So we’ll probably need two years before this case will be set again by
the time it goes up to the Court of Appeals.” (RR3: 5). On August 19, 2014, the
State filed a Motion for Reconsideration of its prior ruling on Appellee’s Motion to
Suppress. (CR: 41-42). Presumably, the State realized it had missed its filing
deadline for its Notice of Appeal and sought to reset the clock by prompting the
Court to issue a new ruling. On September 25, 2014, a hearing was held on the
State’s motion. (RR4: 1). At the commencement of the hearing, the trial court
inquired as to why the State should be allowed to appeal in light of its untimely-
filed notice of appeal. (RR4: 1). The State responded that the trial court has the
discretion to hear evidence until the close of the case and cited Montalvo v. State,
4
846 S.W.2d 133 (Tex. App.—Austin 1993) in support of its argument.3 Why
would the State ask the Court to re-open the evidence and reconsider its ruling if it
was unaware of that ruling? The answer is simple: it would not.
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 coordinator would
have answered that question had the State been unsure as to whether an order had
actually been signed.
Third, the State’s argument is essentially that the date the order was signed,
July 7, 2014, is irrelevant and rather, the date the District Clerk file-stamped the
order, September 25, 2014, should control. This is contrary to not only existing
precedent, but also the plain language of Article 44.01. State v. Rosenbaum, 818
S.W.2d 398, 402-03 (Tex. Crim. App. 1991) (holding that “the appellate timetable
for the State under 44.01(d) begins running from the date the trial judge signs his
or her order”).
3
In Montalvo, the court addressed the trial court’s authority to reopen evidence on a motion to
suppress, not whether reconsideration of a prior ruling resets the State’s deadline for filing notice
of appeal. Id. In fact, this Court has held that “[t]he right of the State to request, and the right of
the trial court to reconsider, pretrial rulings are distinct from the State’s limited right to appeal
court orders granted by Article 44.01.” State v. Cowsert, 207 S.W.3d 347, 351 (Tex. Crim. App.
2006). This Court explained further that “Article 44.01(d) is more than a mere procedural filing
deadline; it is a substantive limit on the State’s authority to appeal.” Id. Once the deadline for
filing Notice of Appeal has passed, “the State’s authority to appeal under the statute ceases to
exist, and [the trial court] may not revive that right.” Id. at 351-352, citing State v. Muller, 829
S.W.2d 805, 812 (Tex. Crim. App. 1992).
5
The State also seems to argue that it should be excused from complying with
the requirements of 44.01(d) because findings of fact and conclusions of law were
not entered on the day the trial court granted Appellant’s Motion to Suppress.
Specifically, in its recitation of the Statement of Facts, the State asserts “At the
September 25, 2014, hearing, the State argued to the trial court that not only did
they lack notice of the signed order but they had no reason to expect such an order.
The State pointed out that at the conclusion of the previous hearing on July 7,
2014, the Court had ordered findings of fact and conclusions of law, which lead the
State to believe that a written order granting the motion to suppress would be
issued and entered contemporaneously with the signed findings of fact. R.R. vol. 4
p. 67, 70-72.” See State’s Brief at 8. This statement is incorrect. After the trial
court issued its ruling, and the State announced its intention to have the elected
District Attorney sign a Notice of Appeal, the State requested findings of fact and
conclusions of law. (RR3: 5). The prosecutor did not, as the State now argues,
anticipate a ruling that he already unequivocally stated he would appeal. However,
even if the State’s premise were true, as this Court is aware, State v. Cullen,
requires the trial court to issue findings of fact and conclusions of law at the
request of the losing party on a motion to suppress. State v. Cullen, 195 S.W.3d
696, 698-99 (Tex. Crim. App. 2006). However, if the trial court does not timely
enter those findings of fact and conclusions of law, the remedy is for the Court of
6
Appeals to abate the case to the trial court to enter those findings and conclusions,
not extend the State’s deadline for filing notice of appeal. Id.
To complain, as the State does, that this Court’s precedent, which has stood
for almost twenty-five years, is too onerous on the State to be fair, is nothing more
than a desperate attempt at explaining away its lack of diligence in insuring its
compliance with the well-established statutory requirements of Texas Code of
Criminal Procedure Article 44.01(d).
II. The Third Court of Appeals loyally adhered to this Court’s
prior holdings and therefore, its decision should not be
reversed.
In its second point, 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.
In its decision, 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
7
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, a case in which, as is the case here, the State argued it did
not have notice of the order to be appealed. Sutton v. Bage, 822 S.W.2d 55, 56-57
(Tex. Crim. App. 1992). This Court interpreted the phrase “entered by the Court”
as meaning the signing of the order by the trial judge. Id.
Next, the State argues that because the cases cited by the Third Court of
Appeals do not “directly address” the issue of notice of a written order, they are
distinguishable from the present case. However, the State then acknowledges that
in Sutton, the State filed its notice of appeal based on the date an order was filed by
the District Clerk, rather than the date the order was signed by the Court, and that
despite the State’s belief that the order was signed the date it was filed, its notice of
appeal was untimely. See State’s Brief at 10. The holding in Sutton is precisely
the same as the facts of the present case. Id. at 56-57. Quite simply, the Third
Court of Appeals misconstrued nothing, but rather, followed existing Court of
Criminal Appeals’ precedent explicitly.
III. There is no need to clarify or revisit existing, binding precedent.
After arguing in its second issue that this Court has never directly addressed
the notice issue raised here, the State then relies upon a dissent from Judge
8
McCormick in Sutton, in which the notice issue is squarely addressed. What the
State is really asking this Court to do is reverse its existing, binding precedent and
adopt Judge McCormick’s dissent in Sutton. There is no need to take this drastic
action to correct a single District Attorney’s Office’s lack of diligence in perfecting
its appeal.
The State then argues, as Judge McCormick argued in his dissent in Sutton,
that if its position is not adopted by this Court, contrary to existing precedent, the
result will be that Courts all over the State will “deny the State its opportunity to
appeal whenever they so choose.” See State’s Brief at 13. The flaw in the State’s
argument is that this is not, in fact, happening. There is no deluge of District
Attorney’s Offices complaining that Courts are denying them their right to appeal.
This is so because the vast majority of the District Attorney’s Offices in this State
are aware of the requirements of Article 44.01(d) and are diligent in complying
with those requirements. In fact, there is no evidence in the record in the present
case that the trial court in this case had any intention whatsoever of denying the
State its right to appeal.
The State also argues that “[w]hile it is reasonable to assume that this Court
did not mean by its decision in Rosenbaum to require the State file its notice of
appeal within twenty days of an event it is not aware has occurred,” Courts of
Appeals feel bound by that decision. The State’s reasoning would apply only if its
9
premise had actually occurred. As discussed at length above, the State had notice
of the “event,” namely: that the trial court granted Appellant’s Motion to Suppress.
Therefore, the Court of Appeals did not wrongly interpret Rosenbaum, but loyally
and properly adhered to it.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that the
Court of Criminal Appeals reconsider its granting of the State’s Petition for
Discretionary Review, deny the State’s requested relief, and allow the Opinion of
the Court of Appeals to stand.
Respectfully submitted,
/s/ Kristen Jernigan
Kristen Jernigan
Attorney for Respondent
State Bar Number 90001898
207 S. Austin Ave.
Georgetown, Texas 78626
(512) 904-0123
(512) 931-3650 (fax)
10
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this the 19th day of June 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
CERTIFICATE OF WORD COUNT
The undersigned hereby certifies that the foregoing document consists of
3,238 words in compliance with Texas Rule of Appellate Procedure 9.4.
_______/s/ Kristen Jernigan_____________
Kristen Jernigan
11