concurring.
Although I agree that we must dismiss this interlocutory appeal because the trial court has not signed a written order, I write separately to express my concern that a trial court can effectively deny the State its right to an interlocutory appeal under article 44.01 of the code of criminal procedure by refusing to sign a written order memorializing its preliminary ruling on pretrial evidentiary matters. Like a defendant, the State may urge the trial court to reconsider its ruling at trial. But, unlike a defendant, the State cannot appeal after trial if it cannot meet its burden of proof because the trial court refuses to reconsider its evidentiary ruling.
In the original proceeding, the trial judge explained her reasons for not signing a written order: (1) she gave the State the opportunity to brief the issue but it chose not to, filing the mandamus petition instead; and (2) she was merely making a preliminary ruling on admissibility because of the State’s failure to produce the DNA evidence in discovery until immediately before trial and, thus, her ruling was conditional and not final.
I joined in the denial of the original proceeding because the trial judge’s response indicated that she had not finally considered the matter; she had invited the State to brief the issue and was willing to consider its arguments and hold a hearing. The State did not attempt to have the trial judge resolve the matter before filing its appeal and mandamus petition.3 The State filed a subsequent mandamus petition with the court of criminal appeals, which also denied the petition.
However, the trial judge has refused to consider any of the State’s motions while this appeal is pending, on jurisdictional grounds. So the State is essentially stuck: it cannot get a reconsideration from the *790trial court while the appeal is pending, but it cannot get a written order allowing the appeal to go forward without mandamus relief from this court.
“Article 44.01 was enacted as a vehicle for the State to challenge ‘questionable legal rulings excluding what may be legally admissible evidence[.]’ The purpose of the statute is to permit the pretrial appeal of erroneous legal rulings which eviscerate the State’s ability to prove its case.” State v. Medrano, 67 S.W.3d 892, 895-96 (Tex. Crim.App.2002); see Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2010) (providing that the State may appeal an order that “grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case”). The legislative intent of article 44.01 “was to permit the State to appeal any ‘questionable legal rulings excluding what may be legally admissible evidence.’ Period.” Medrano, 67 S.W.3d at 900 (emphasis added). “[A] motion to suppress evidence is one in which the defendant (or the State) claims that certain evidence should not be admitted at trial for a constitutional, statutory, eviden-tiary or procedural reason.” Id. at 901 (emphasis added). Thus, what a defendant names his motion — whether a motion to suppress or a motion to exclude evidence— is irrelevant; Texas law governing pretrial motions does not distinguish between the two. Id.; State v. Marrs, 104 S.W.3d 914, 916-17 (Tex.App.-Corpus Christi 2003, no pet.).
Although its ultimate purpose is unclear, the trial court appears to have drawn a distinction in this case between suppressing the evidence as a result of police misconduct4 versus excluding evidence for a procedural reason — that the State failed to timely provide the evidence in discovery. But Medrano tells us that is not the case; the State may appeal the trial court’s ruling suppressing, i.e., refusing to admit evidence, for any reason, regardless of whether the judge is ruling on a document entitled “Motion to Suppress,” “Motion to Exclude Evidence,” or in this case, “Motion for Continuance.” See Medrano, 67 S.W.3d at 903; see also Tex.Code Crim. Proc. Ann. art. 28.01, § 1(6) (Vernon 2006). Accordingly, if the trial court, upon reconsideration after giving the State the opportunity to brief and argue the late discovery issue, decides that the evidence should remain excluded, the State should be allowed an interlocutory appeal of that decision under article 44.01(a)(5) and Medrano if the DNA evidence is “of substantial importance” to the case, regardless of whether the trial court finds police misconduct or a discovery violation by the State. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5); Medrano, 67 S.W.3d at 903. And if a trial court refuses to provide the State the means of availing itself of that statutory remedy by holding a hearing and signing a written order memorializing its ruling, mandamus is the only remedy available to the State so that its appeal may go forward. See State v. Cox, 235 S.W.3d 283, 285 n. 14 (Tex.App.-Fort Worth 2007, no pet.).
For these reasons, I respectfully concur.
. Although the trial judge’s response in the original proceeding argues that her ruling regarding the DNA evidence was conditional and not final, that does not distinguish the ruling from a ruling on a motion to suppress. A suppression order is a nonfinal ruling; the trial court may reconsider its decision at trial. See, e.g., Ex parte King, 134 S.W.3d 500, 503 (Tex.App.-Austin 2004, pets, ref’d).
. Medrano overruled State v. Roberts, 940 S.W.2d 655 (Tex.Crim.App.1996), in which the court of criminal appeals held that the State could appeal from an adverse ruling on a motion to suppress only when the trial court determined that the evidence was illegally obtained. 67 S.W.3d at 903.