NUMBER 13-19-00092-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
THE STATE OF TEXAS, Appellant,
v.
BENJAMIN SHARP, Appellee.
____________________________________________________________
On appeal from the County Court at Law
of Aransas County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Memorandum Opinion by Justice Benavides
The State filed this appeal attempting to challenge the trial court’s order denying
its petition to proceed to adjudication against Benjamin Sharp. On March 7, 2019, the
Clerk of this Court advised the parties that it appeared that there was not a final,
appealable judgment in this case and requested correction of this defect if it could be
done. After requesting and receiving an extension of time, the State has now filed its
response to the Court’s notice. By motion, the State requests that we retain jurisdiction
over the appeal.
According to the State’s motion, after charging Sharp with possession of marijuana
on March 26, 2018, the State entered into a Pre-trial Diversion Agreement with Sharp
whereby he agreed to certain conditions, including abstaining from alcohol, for a one–
year period. The State thereafter sought to proceed to adjudication on grounds that
Sharp had violated this condition. After a hearing, at which the State asserts that
“evidence of the violation was presented,” the trial court continued Sharp on the
conditions of pre-trial supervision rather than proceed to trial or adjudication. No written
order has been signed, and the State has requested reconsideration of this ruling.
The State asserts that it has the right to a review of the determination regarding
whether the prosecutor or the trial court has authority to declare a violation of a pre-trial
diversion agreement, and whether the State may proceed to prosecute the defendant on
the underlying charges without a ruling from the trial court concerning the violation. The
State contends that the agreement is purely a contract between the prosecutor and the
defendant and that the prosecutor may proceed against the defendant for a violation
without first obtaining permission or any ruling from the trial court.
The State requests that we “retain jurisdiction of the present appeal until such time
as the trial court rules on the State’s motion to reconsider and, if the ruling goes against
the State, it may petition this Court for mandamus relief.” The State contends that this
procedure will allow the Court to more efficiently determine which is the proper method of
review” and it “will not have forfeited a possible means of review.”
We conclude we lack jurisdiction over this appeal. First, as a threshold matter,
2
the trial court has not heard the State’s motion for reconsideration, and its ruling on
reconsideration may render this appeal moot. See TEX. R. APP. P. 27.1(b). Second,
there is no written ruling. A State’s appeal under article 44.01 must be from a signed,
written order. State v. Sanavongxay, 407 S.W.3d 252, 258–59 (Tex. Crim. App. 2012);
State v. Martinez, 548 S.W.3d 751, 760 (Tex. App.—Corpus Christi 2018, no pet.).
Therefore, the State lacked statutory authority to appeal the oral ruling and we lack
jurisdiction over the appeal. Martinez, 548 S.W.3d at 760. Third, the State has not
established that article 44.01 authorizes an appeal from an order continuing a defendant
on pre-trial diversion. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw
through 2017 1st C.S.); State v. Cuellar, 815 S.W.2d 295, 297 (Tex. App.—Austin 1991,
no pet.) (concluding that the State “has no right to appeal an order granting a motion to
quash a revocation of probation motion”); see also State v. Stephens, No. 11-12-00350-
CR, 2013 WL 600222, at *1 (Tex. App.—Eastland Feb. 7, 2013, no pet.) (mem. op., not
designated for publication).
The Court, having examined and fully considered the notice of appeal, the clerk’s
record, and the State’s motion to retain, is of the opinion that there is not an appealable
order and this Court lacks jurisdiction over the matters here. Accordingly, we deny the
State’s motion to retain and we dismiss the appeal for want of jurisdiction.
GINA M. BENAVIDES,
JUSTICE
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of May, 2019.
3