Order entered January 19, 2017
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01160-CR
THE STATE OF TEXAS, Appellant
V.
DOUGLAS ALLEN MACHUTTA, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F15-23625-Y
ORDER
Before Chief Justice Wright, Justice Myers, and Justice Brown
The Court has before it appellee’s December 22, 2016 motion to dismiss the appeal and
the State’s December 30, 2016 response. A review of this case shows appellee was charged
with continuous sexual abuse of a child. Following a five-day trial, the jury was instructed on
continuous sexual abuse of a child or, alternatively, three counts of the lesser-included offense of
aggravated sexual assault of a child. The jury found appellant guilty of the three lesser-included
offenses, and the trial court sentenced appellee to twenty-five years in prison for each count, to
be served consecutively. Appellee filed a motion for new trial, which the trial court granted to
the extent the judgment was reformed to show only one conviction for aggravated sexual assault
of a child with a sentence of twenty-five years in prison.
On September 6, 2016, the elected Dallas County District Attorney resigned from office.
Sixteen days later, the State filed this appeal. Appellee then filed a motion to dismiss, asserting
the State’s notice of appeal failed to invoke this Court’s jurisdiction. Specifically, appellee
contends we lack jurisdiction because the notice of appeal is signed by the “First Assistant
District Attorney,” and not the District Attorney as required by article 44.01 of the code of
criminal procedure. In support of his contentions, he relies primarily on State v. Muller, 829
S.W.2d 805 (Tex. Crim. App. 1992).
Article 44.01 provides that the “prosecuting attorney” may file a State’s appeal under
certain circumstances. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)−(c) (West Supp. 2016).
“Prosecuting attorney” is defined as “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.” Id. art. 44.01(i). In Muller, the court of
criminal appeals considered whether a notice of appeal that was signed by the first assistant to
the district attorney (who was out of town at the time the notice of appeal was filed) met the
requirements of article 44.01. Muller, 829 S.W.2d at 806. The court of criminal appeals
concluded it did not and that the court of appeals lacked jurisdiction over the appeal. Id. at 813.
In the next legislative session after the Muller opinion issued, the Legislature enacted
section 601.002 of the government code which provides that “the first assistant or chief deputy of
a public office in which a physical vacancy occurs shall conduct the affairs of the office until a
successor is qualified for the office.” Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993
Tex. Gen. Laws 583, 647, amended by Act of March 15, 1999, 76th Leg., R.S., ch. 62, § 8.14,
1999 Tex. Gen. Laws 127, 311 (current version at TEX. GOV’T CODE ANN. § 601.002(a) (West
2012)). The clear implication of section 601.002 is to ensure the orderly continuation of the
operations of an office in the event of a vacancy created by the death or resignation of a district
attorney. See LaSalle v. State, 923 S.W.2d 819, 827 (Tex. App.—Amarillo 1996, pet. ref’d).
Here, elected Dallas County District Attorney Susan Hawk resigned from office effective
September 6, 2016. Under section 601.002, the First Assistant Criminal District Attorney of
Dallas was authorized to conduct the affairs of the district attorney’s office. Those “affairs of
office” necessarily included filing the State’s appeal in this case, and we reject any argument to
the contrary.
We DENY appellee’s motion to dismiss.
/s/ CAROLYN WRIGHT
CHIEF JUSTICE