State v. Sanavongxay

OPINION

ANNE GARDNER, Justice.

The State filed a notice of appeal “from the trial court’s granting of a motion to suppress or exclude DNA evidence in this case.” Shortly after filing the notice of appeal, the State also filed an original proceeding in this court complaining about the trial court’s refusal to enter a written order granting the motion.1 We denied the mandamus in a summary opinion. See Tex.R.App. P. 52.8(d); In re Joe Shannon, No. 02-10-00048-CV, 2010 WL 744771, at *1 (Tex.App.-Fort Worth Mar. 2, 2010, [orig. proceeding]) (mem. op). The State also filed a Request for Entry of a Written Order in the trial court, which the trial court has not ruled on.

The copy of the motion to suppress contains handwritten, unsigned notations that were scratched out.2 An accompanying motion for continuance — which complains about the late production of DNA evidence by the State — contains a handwritten notation that says “Denied 1-20-10 exclude DNA evid.”

At a pretrial hearing, the trial judge explained that she did not intend to rule on *789the motion to suppress the DNA evidence — which was based on the State’s late production of DNA test results — because she did not think the police did anything wrong. However, she acknowledged that she “wrote on the motion for continuance ... exclude the DNA evidence because it was not timely filed.” She further explained, “You’re still entitled to a suppression hearing ... [I]n error I led you to believe that I was making a suppression ruling; I’m not. I’m making an admissibility ruling because of the lateness of the discovery, which I will allow you to brief if you choose to.” She also said, “[W]hat I have ruled is the defense continuance was denied and the evidence was inadmissible because of discovery violations. Now, if y’all need time to brief that issue, you’ve got it.”

Although the trial judge admitted writing the notations on the motion for continuance and motion to suppress, she nevertheless has not memorialized her ruling in a written order; thus, we must dismiss this appeal for want of jurisdiction in accordance with our Cox opinion. See Tex. R.App. P. 43.2(f); State v. Cox, 235 S.W.3d 283, 284 (Tex.App.-Fort Worth 2007, no pet.); State v. Kibler, 874 S.W.2d 330, 331-32 (Tex.App.-Fort Worth 1994, no pet.).

LIVINGSTON, C.J., filed a concurring opinion.

WALKER, J., filed a concurring opinion.

. We grant the State’s motion to take judicial notice of our records in the original proceeding.

. The State also filed an affidavit from an administrative clerk in the district clerk’s office averring that the handwriting on the motion to suppress is “consistent with the practice and style of the judge of Criminal District Court No. 1.”