ACCEPTED
04-15-00395-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/28/2015 11:50:24 PM
KEITH HOTTLE
CLERK
NO. 04-15-00395-CR FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE FOURTH COURT OF APPEALS 10/28/15 11:50:24 PM
KEITH E. HOTTLE
SAN ANTONTO, TEXAS Clerk
STATE OF TEXAS,
Appellant,
V.
JAMES RAY JUNEK,
Appellee.
BRIEF OF APPELLEE
Appeal from the County Court at Law
Kerr County, Texas
Trial Court No. CR14-0146
The Honorable Susan Harris
DARREN LEE UMPHREY
Texas Bar No. 00792885
Attorney for Appellee James Ray Junek
246 W. San Antonio, Suite 201
New Braunfels, Texas 78130
(830) 627-3123-Phone
(830) 627-3122-Fax
NO ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: The State of Texas
Ms. Heather Stebbins
Elected Kerr County Attorney
700 Main Street, Ste. BA-103
KerrviUe, Texas 78028
Mr. Joseph A. Soane, III
Assistant Prosecuting Kerr County Attorney
700 Mam Street, Ste. BA-103
Kerrville, Texas 78028
Appellee / Defendant: James Ray Junek
Mr. Darren Lee Umphrey
246 W. San Antonio Street, Suite 201
New Braunfels, Texas 78130
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TABLE OF CONTENTS
IDENTITY OF THE PARTIES AND COUNSEL i
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii
STATEMENT OF THE CASE iv
STATEMENT REGARDING ORAL ARGUMENT v
CROSS-POINT NOT: Assistant County Attorney's attempt to perfect the States
appeal by the filing of a Notice of Appeal and Certification signed by the Assistant
County Attorney on May 14, 2015 was ineffective under Tex. Code Crim. Proc.
44.01(i). This Court lacks jurisdiction to consider this appeal vi
STATEMENT OF FACTS FOR CROSS-POINT NO. 1 1
SUMMARY OF THE ARGUMENT FOR CROSS-POINT NO. 1 2
ARGUMENT FOR CROSS-POINT NO. 1 3
PRAYER 4
CERTIFICATE OF SERVICE 5
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INDEX OF AUTHORITIES
CASES
State V. Muller 829 S.W.2d 805,809 (Tex. Crim. App. 1992)
STATUTES
Article 44.01, Texas Rules of Criminal Procedure
iii
STATEMENT OF THE CASE
This is a driving while intoxicated prosecution. Appellee was charged by
Information with the offense of driving while intoxicated. Appellee filed his
Motiont to Suppress on December 11, 2014, which the trial court granted May 6,
2015 following a hearing. On May 14, 2015, Appellant filed a document entitled
Notice of Appeal. On May 14, 2015, Appellant also filed a document entitled
Affidvit certifying to the trial court that the appeal was not taken for purposes of
delay and that the evidence was of substantial importance in the case. This
document was signed and sworn to by Joseph A. Soane, III, Assistant Kerr County
Attorney for Kerr County, Texas.
iv
REGARDING ORAL ARGUMENTS
Appellee James Ray Junek does not request oral arguments. Appellee
believes that the issues are not novel and does not believe oral argument would
assist this honorable Court in understanding the issues presented.
V
CROSS-POINT NO. 1
Assistant County Attorney's attempt to perfect the States appeal by the filing
of a Notice of Appeal and Certification signed by the Assistant County Attorney on
May 14, 2015 was ineffective under Tex. Code Crim. Proc. 44.01(i). This Court
lacks jurisdiction to consider this appeal.
vi
NO. 04-15-00395-CR
IN THE FOURTH COURT OF APPEALS
SAN ANTONTO, TEXAS
STATE OF TEXAS,
Appellant,
V.
JAMES RAY JUNEK,
Appellee.
BRIEF OF APPELLEE
TO THE HONORABLE COURT OF APPEALS:
NOW COMES Appellee JAMES RAY JUNEK and submits his Brief of
Appehee.
STATEMENT OF FACTS FOR CROSS-POINT NO. 1
On May 6, 2015, in the County Court at Law of Kerr County, Texas, the
Appellee's Motion to Suppress was granted by the Honorable Susan Harris.
Joseph A. Soane, III is an Assistant County Attorney for Kerr County, Texas.
(RR4, 4). On May 13, 2015 a Notice of Appeal was signed by Joseph A. Soane,
III, Assistant Kerr County Attorney (CR Notice of Appeal). Said document was
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filed for record on May 14, 2015 with the County Clerk of Kerr County, Texas.
(CR Notice of Appeal). Assistant Prosecuting Attorney, Joseph A. Soane, III also
filed an affidavit on May 14, 2015. (CR Affidavit). The affidavit states:
"My name is Joseph Soane, and I am the Assistant Kerr County
Attorney for Kerr County, Texas, in the above styled and numbered
cause. I certify to the trial court that the appeal is not taken for
purposes of delay and that the evidence is of substantial importance in
the case."
This certification was signed by Joseph A. Soane, III. (CR Affidavit). Mr.
Soane is not the elected county attorney for Kerr County, Texas as evidenced by
his statement in the certification. (CR Affidavit). The elected county attorney for
Kerr County, Texas is Heather Stebbins. (CR State's First Motion for
Continuance) and (CR Suppression Letter Brief filed April 24, 2015) Ms. Stebbins
name and/or her signature authorizing this specific appeal does not appear in the
Notice of Appeal or certification. (CR Notice ofAppeal) and {CK Affidavit).
The record reflects that the trial court recognized Joseph A. Soane, III as the
Assistant County Attorney. (RR4, 4-5).
SUMMARY OF THE ARGUMENT FOR CROSS-POINT NO. 1
Jurisdiction concerns the power of a court to hear and determine a case.
Appellate jurisdiction is invoked by giving notice of appeal. The notice of appeal
must be timely and must be in writing to invoke a court of appeals' jurisdiction. In
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addition, in State-prosecuted appeals, the failure of the elected prosecuting
attorney, as opposed to an assistant to make the appeal is a jurisdictional defect.
The Notice of Appeal and certification filed by the State on May 14, 2015 was
ineffective. It is a failure to abide by the substantive statutory requirements of
Tex.Code Crim.Proc. art. 44.01. Due to this failure, this Court lacks jurisdiction.
ARGUMENT FOR CROSS-POINT NO. 1
Tex. Code Crim. Proc. Art. 44.01 sets forth the grounds upon which an
appeal may be made by the State. Article 44.01 further provides that such an
appeal is to be made by the Prosecuting Attorney. Specifically, Article 44.01(i)
reads as follows, "in this article, 'prosecuting attorney', means the County
Attorney, District Attorney or Criminal District Attorney who has the primary
responsibility of prosecuting cases in the Court hearing the case and does not
include an Assistant Prosecuting Attorney" (emphasis added). See State v. Muller
829 S.W.2d 805,809 (Tex. Crim. App. 1992).
Both the Notice of Appeal and certification required by 44.01(a)(5) are
clearly signed by Joseph A. Soane, III, Assistant Kerr County Attorney, who is not
the "Prosecuting Attorney" as defined by Tex. Code Crim. Proc. Art. 44.01(i).
Therefore, the appeal was never properly made.
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Appellee would further show that since the appeal was not properly
perfected and May 26, 2015 was the last day for said appeal to be perfected, the
Court does not have jurisdiction of this matter. Additionally, since the time for
perfecting the appeal has expired, the office of the County Attorney cannot correct
the defect by filing an amended notice. Nothing in the Notice of Appeal or
Affidavit, each signed by the "assistant" prosecuting attorney, hints in the least that
the elected county attorney authorized this specific appeal. If there is no
compliance within the twenty-day window, the window is thereafter closed. A
defective notice of appeal is not susceptible to correction through application of
'amendment and cure' provision of the Texas Rules of Appellate Procedure. See
Muller, 829 S.W.2dat812.
The filing of a notice of appeal by an assistant prosecuting attorney is not a
defect of appellate procedure; it is a failure to abide by the substantive statutory
requirements of Tex.Code Crim.Proc. art. 44.01. See Muller, 829 S.W.2d at 812.
PRAYER
THEREFORE, Appellee JAMES RAY JUNEK respectfully request that this
Honorable Court grant Appellee's Motion to Dismiss Appeal for Want of
Jurisdiction or in the alternative uphold the ruling of the trial court's Order
granting Appellee's Motion to Supress.
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Respectfully submitted,
Law Offices of Darren Lee Umphrey
246 W. San Antonio Street
Suite 201
New Braunfels, Texas 78130
Tel: (830) 627-3123
Fax: (830)>37-312:
D A ^ N LEE UMPHREY
State Bar No. 00792885
Attorney for JAMES JUNEK,
Appellee
CERTIFICATE OF SERVICE
I hereby certify that on this the 28'^ day of October, 2015, a true and correct
copy of Appellee's Brief was served on the following by the following method:
Mr. Joseph A. Soane, III via email and fax
Assistant Kerr County Attorney
700 Main Street, Suite BA-103
Kerrville, Texas 78028
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