The State of Texas v. Dallas Dryden--Appeal from County Court at Law No. 2 of Hays County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-572-CR
THE STATE OF TEXAS,

APPELLANT

 
vs.
DALLAS DRYDEN,

APPELLEE

 
FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY,
NO. 36,406, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING

PER CURIAM

The State seeks to appeal an order of the county court at law suppressing evidence. Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 1993). The underlying offense is possession of less than two ounces of marihuana. Tex. Health & Safety Code Ann. 481.121 (West 1992).

The State is entitled to appeal an order granting a motion to suppress evidence "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 in the case." Art. 44.01(a)(5). "Prosecuting attorney" means the criminal district attorney and does not include an assistant. Tex. Code Crim. Proc. Ann. art. 44.01(i) (West Supp. 1993); see State v. Muller, 829 S.W.2d 805, 809 (Tex. Crim. App. 1992). The criminal district attorney for Hays County did not certify that this appeal was not taken for the purpose of delay. Instead, the certification was signed by an assistant criminal district attorney. Thus, under the terms of the statute, the State is not entitled to appeal the trial court's order. State v. Brown, No. 3-92-366-CR (Tex. App.--Austin Dec. 9, 1992, no pet. h.).

The appeal is dismissed.

 

[Before Justices Powers, Aboussie and B. A. Smith]

Dismissed

Filed: January 13, 1993

[Do Not Publish]