State v. Cox

LEE ANN DAUPHINOT, Justice,

dissenting.

Because I would hold that the State filed its notice of appeal too late and therefore failed to trigger this court’s jurisdiction in this appeal from a suppression order, I dissent.

I also disagree with the majority’s identification of the primary issue in this case. I believe that the primary issue in this case is whether the trial court is required to reduce an evidentiary ruling to writing and enter a second, separate order when that evidentiary ruling is pronounced in open court on the record in the presence of both parties, and the dictated order in-*286eludes the findings of fact and conclusions of law upon which the ruling was based.

A ruling on a motion to suppress is simply an evidentiary ruling. As the Texas Court of Criminal Appeals has explained, “A ‘motion to suppress’ evidence is nothing more than a specialized objection to the admissibility of that evidence.”1 A motion to suppress asks the court for an evidentiary ruling.2 The motion may be in writing or it may be oral.3 It may be made pretrial or at any time during trial until the evidence has been admitted.4 If a motion to suppress is denied, no further objection is required to preserve the complaint.5

Evidentiary rulings are not required to be reduced to written orders if the ruling clearly appears in the record.6 Consequently, it follows that a ruling on a motion to suppress that is dictated into the record in the presence of the parties and that is adverse to the State does not have to be again reduced to writing if the ruling clearly appears in the record.

State v. Cullen,7 which the Texas Court of Criminal Appeals handed down recently, supports my conclusion that a written order reciting the adverse ruling on the motion to suppress is unnecessary when the ruling clearly appears in the reporter’s record. In that case,.the court announced the new requirement that the trial court must enter findings of fact and conclusions of law when requested in ruling on all motions to suppress, not just those dealing with statements of the defendant.8 The Cullen court made clear that its new rule requiring the trial court to enter findings of fact and conclusions of law in ruling on all motions to suppress would not require extra work for busy trial judges,9 apparently relying on the well-established rule in criminal cases that the writing requirement is satisfied by dictation into the record and subsequent transcription.10 The Cullen court explained,

We do not intend to create additional work for the trial courts; we are simply asking the trial courts to inform us of the findings of fact upon which their conclusion is based. The findings and conclusions need to be recorded in some way, whether written out and filed by *287the trial court, or stated on the record at the hearing.11

Similarly, consistently in the past, the Texas Court of Criminal Appeals has held that “[a] trial court satisfies the requirements of [a]rticle 38.22 when it dictates its findings and conclusions to the court reporter, and they are transcribed and made a part of the statement of facts, filed with the district clerk and made a part of the appellate record,”12 despite article 38.22⅛ use of the term “order.”13 The findings and conclusions in the case before us were so dictated, transcribed, made a part of the statement of facts, filed with the district clerk, and made a part of the appellate record.

Based on the above case law and this court’s review of the record, we should hold that the trial court’s dictating its ruling into the record in the presence of both the State and the defense constituted an order granting Cox’s motion to suppress and that the State’s appellate timetable consequently ran from that date. Because this holding would be dispositive, we would then not reach the irrelevant issue of whether the docket sheet entry memorializing the ruling and signed by the trial judge is an order. In this case, the signed docket sheet entry merely makes the date triggering the State’s appellate timetable more obvious to all.

Because the trial judge entered his ap-pealable ruling granting Cox’s motion to suppress on April 4, 2006, the State was required to file its notice of appeal on or before April 19, 2006.14 Because the State did not file its notice of appeal until May 22, 2006, the notice of appeal was untimely.15 A notice of appeal that complies with the requirements of rule 26 is essential to vest this court with jurisdiction.16 The Texas Court of Criminal Appeals has expressly held that, without a timely filed notice of appeal or motion for extension of time, we cannot exercise jurisdiction over an appeal.17 I would therefore dismiss this appeal for want of jurisdiction18 and allow the State to proceed with its case in the trial court without the suppressed evidence.

HOLMAN, J., joins.

. Galitz v. State, 617 S.W.2d 949, 958 (Tex.Crim.App.1981).

. Cobb v. State, 85 S.W.3d 258, 272 n. 50 (Tex.Crim.App.2002), cert. denied, 537 U.S. 1195, 123 S.Ct. 1256, 154 L.Ed.2d 1032 (2003).

. See Hall v. State, 74 S.W.3d 521, 527 n. 3 (Tex.App.-Amarillo 2002, no pet.).

. Ross v. State, 678 S.W.2d 491, 493 (Tex.Crim.App.1984).

. Tex.R. Evid 103(a)(1); Gearing v. State, 685 S.W.2d 326, 329 (Tex.Crim.App.1985) ("It is settled that when a pre-trial motion to suppress evidence is overruled, the accused need not subsequently object to the admission of the same evidence at trial in order to preserve error.”), ovemtled on other grounds by Woods v. State, 956 S.W.2d 33 (Tex.Crim.App.1997).

. See Tex.R. Evid. 103; Tex.R.App P. 33.1(a)(2); Gutierrez v. State, 36 S.W.3d 509, 510-11 (Tex.Crim.App.2001); see also Reyes v. State, 910 S.W.2d 585, 589 (Tex.App.-Amarillo 1995, pet. ref'd) (holding, in a case in which neither a written motion to suppress nor a written order appeared in the appellate record, that "in this case the record is quite clear that a motion to suppress was filed, testimony was taken in connection with that motion, and the court’s decision to overrule the motion was quite clear and definite. Thus, the record is sufficient to preserve the question for appellate review.”).

. 195 S.W.3d 696 (Tex.Crim.App.2006).

. Id. at 699.

. Id.

. See, e.g., Horn v. State, 699 S.W.2d 714, 716 (Tex.App.-Fort Worth 1985, no pet.).

. Cullen, 195 S.W.3d at 699 (emphasis added).

. Murphy v. State, 112 S.W.3d 592, 601-02 (Tex.Crim.App.2003), cert. denied, 541 U.S. 940, 124 S.Ct. 1660, 158 L.Ed.2d 363 (2004).

. Tex.Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005).

. See Tex.Code Crim. Proc. Ann. art. 44.01(d); Tex.R.App. P. 26.2(b).

. See Tex.Code Crim. Proc. Ann. art. 44.01(d); Tex.R.App. P. 26.2(b).

. TexR.App. P. 26.2(b); see Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998).

. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996); see also Slaton, 981 S.W.2d at 210.

. See Tex.R.App. P. 43.2(f).