State of Texas v. Paul Wesley Scribner--Appeal from 6th District Court of Fannin County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00201-CR
______________________________
THE STATE OF TEXAS, Appellant
V.
PAUL WESLEY SCRIBNER, Appellee
On Appeal from the 6th Judicial District Court
Fannin County, Texas
Trial Court No. 19815
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Ross
O P I N I O N

Paul Scribner was charged with manufacture of a controlled substance in Fannin County. He moved to suppress evidence seized from his home. The trial court granted the motion. The State has filed a notice of appeal which does not state that the appeal was not taken for the purpose of delay and that the evidence is of substantial importance to the case. The notice of appeal was signed by an assistant county attorney. We noted a probable jurisdictional defect and, on November 7, 2001, we wrote a letter in which we pointed out the defects and invited the State to provide a response explaining how we had jurisdiction over the appeal. No response has been filed.

The initial question before this Court is whether the notice of appeal serves to provide jurisdiction for this Court.

On October 9, 2001, the trial court granted Scribner's motion to suppress. The State filed its timely notice of appeal on October 16, 2001. See Tex. Code Crim. Proc. Ann. art. 44.01(d) (Vernon Supp. 2002).

Article 44.01 provides that the State is entitled to appeal an order granting a motion to suppress evidence if jeopardy has not attached to 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 is of substantial importance to the case. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2002).

The Texas Court of Criminal Appeals strictly construes the statutory requirements of Article 44.01, which establishes the State's limited right of appeal. State v. Riewe, 13 S.W.3d 408, 411 (Tex. Crim. App. 2000); State v. Muller, 829 S.W.2d 805, 812-13 (Tex. Crim. App. 1992). Further, the court has held that the certification requirement of Article 44.01 is jurisdictional. Riewe, 13 S.W.3d at 413. Therefore, because the State's notice of appeal lacked the certification requirement, it failed to confer jurisdiction on this Court. See id.

In addition, a failure to comply with Article 44.01 is substantive and is not susceptible to correction through application of the "amendment and cure" provisions in the Texas Rules of Appellate Procedure. Riewe, 13 S.W.3d at 410-12; Muller, 829 S.W.2d at 812. Therefore, the Rules of Appellate Procedure, including the amendment provision of Rule 25.2(d), cannot expand the state's power to obtain jurisdiction before an appellate court. Riewe, 13 S.W.3d at 413; see Tex. R. App. P. 25.2(d). In 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. Riewe, 13 S.W.3d at 410.

In this case, the State's notice of appeal did not comply with Article 44.01 because it did not certify that the appeal was not taken for the purpose of delay or that the evidence was of substantial importance to the case, and also because it was signed by an assistant rather than by the elected prosecuting attorney.

 

The appeal is dismissed for want of jurisdiction.

 

Donald R. Ross

Justice

 

Date Submitted: December 19, 2001

Date Decided: December 19, 2001

 

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