ACCEPTED 08-15-00002-CR 08-15-00002-CR EIGHTH COURT OF APPEALS EL PASO, TEXAS 1/30/2015 9:55:04 AM DENISE PACHECO CLERK
IN THE COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS FILED IN 8th COURT OF APPEALS EL PASO, TEXAS THE STATE OF TEXAS, § 1/30/2015 9:55:04 AM § DENISE PACHECO Clerk Appellant, § § v. § No. 08-15-00002-CR § DANIEL VILLEGAS, § § Appellee. §
APPELLEE’S MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION
TO THE HONORABLE COURT OF APPEALS:
COMES NOW DANIEL VILLEGAS, Appellee, and moves the Court to
dismiss this appeal for want of jurisdiction, and would show the following:
1. Daniel Villegas is charged with capital murder, after his 1995 conviction
was vacated by the Texas Court of Criminal Appeals. Ex parte Villegas, No.
WR-78,260-01 (Tex.Crim.App. Dec. 18, 2013). This is an attempted interlocutory
appeal by the State from a trial court order excluding evidence. However, the Court’s
jurisdiction over such appeals is limited by statute, and exists only when the
prosecuting attorney personally certifies that the evidence is of substantial importance
in the case and the appeal is not taken for the purpose of delay. The Texas Court of Criminal Appeals has made clear that this certification requirement is the personal
obligation of the elected district attorney, and mere recitation of the statutory
language is insufficient. Instead of a personal certification by the district attorney,
however, the notice of appeal herein recites that “the State” so certifies. Because the
notice of appeal does not contain a personal certification by the prosecuting attorney,
this Court lacks jurisdiction.
2. The State appeals from a January 5, 2015 pretrial order excluding the
State’s evidence as irrelevant and inadmissible. [See Exhibit “A” hereto, the State’s
Notice of Appeal]. It attempts to appeal pursuant to Texas Code of Criminal
Procedure article 44.01(a)(5), which permits an appeal from an order granting a
motion to suppress evidence. [Ex. A, p. 1].
3. The State’s right of appeal in criminal matters is defined and limited by
statute. TEX.CODE CRIM.PRO. art. 44.01; see TEX.R.APP.P. 25.2(a)(1). Appeals by
the government are “carefully circumscribed” in order to “safeguard individuals from
the special hazards inherent in prolonged litigation with the sovereign.” State v.
Redus, 445 S.W.3d 151, 154 n. 13 (Tex.Crim.App. 2015).1 In order to appeal, the
1 This statement from Redus quotes authority describing federal government appeals. However, Article 44.01 is intended to afford the State the same appellate powers as the federal government. State v. Moreno, 807 S.W.2d 327, 332 (Tex.Crim.App. 1991). And the federal certification-of-appeal requirement serves the same purpose as the Texas requirement. Redus, 445 S.W.3d at 157. 2 State must strictly comply with Article 44.01. Noncompliance with that statute’s
specific provisions is “a substantive failure to invoke the court of appeals’ statutorily
defined jurisdiction.” State v. Riewe, 13 S.W.3d 408, 411 (Tex.Crim.App. 2000),
quoting State v. Muller, 829 S.W.2d 805, 812 (Tex.Crim.App. 1992).
4. Article 44.01(a)(5) permits an appeal from 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, confession, or
admission is of substantial importance in the case[.]” TEX.CODE CRIM.PRO. art.
44.01(a)(5) (emphasis added). The Rules of Appellate Procedure require compliance
with Article 44.01, including this certification requirement, for a notice of appeal to
be “sufficient.” Riewe, 13 S.W.3d at 411; TEX.R.APP.P. 25.2(c)(2). The prosecuting
attorney’s certification is necessary to confer jurisdiction on the Court of Appeals.
Redus, 445 S.W.3d at 152; Riewe, 13 S.W.3d at 409, 411. For this reason, any
attempted appeal by the State must be dismissed for want of jurisdiction if the proper
certification is not filed within 20 days after the trial court enters its order suppressing
evidence. Redus, 445 S.W.3d at 156.
5. The statutory certification requirement is no mere technicality; it carries
serious purpose. Redus, 445 S.W.3d at 157. Article 44.01(a)(5) was drafted so that,
as a practical matter, the State will appeal pretrial suppression orders only when the
3 trial judge’s ruling effectively puts an end to the case, or when a point of law is
deemed so crucial and so likely to recur that an adverse ruling is “devastating to the
legal system or the concept of fair play.” Redus, 445 S.W.3d at 154. The required
certification by the district attorney is thus intended to mandate a conscientious pre-
appeal analysis and a careful appraisal of the likelihood of success and necessity for
review before an appeal is undertaken. Id. at 154, 155 n. 14. It is also intended to
ensure that prosecutors do not appeal trial judges’ rulings indiscriminately and clog
up appellate courts while leaving the defendant under the continuing cloud of
criminal charges. Id. at 154.
6. Significantly, the requirement of certification is personal to the elected
prosecuting attorney. The “prosecuting attorney” is defined to mean the district or
county attorney with primary responsibility for prosecuting cases in the court, and
does not include an assistant prosecuting attorney. TEX.CODE CRIM.PRO. art.
44.01(i). The statute is not satisfied by certification by an assistant prosecuting
attorney. Redus, 445 S.W.3d at 154, n. 12; Muller, 829 S.W.2d at 808-09. The
failure of the elected prosecuting attorney to make the certification is a jurisdictional
defect. Riewe, 13 S.W.3d at 410; Muller, 829 S.W.2d at 811-12.
7. Therefore, an appeal is permitted only if “the elected prosecutor
personally certifies” to the statutory requirements. Redus, 445 S.W.3d at 154
4 (emphasis added). The certification is itself a representation, by an officer of the
court, that the appeal is not for delay and the suppressed evidence is material. Id. at
155 n. 14.2 “The elected prosecutor puts his reputation and integrity, as well as his
signature, on the line in filing notice of an interlocutory appeal.” Id. at 154-55.
8. Accordingly, “the elected prosecutor’s personal certification is necessary
to confer jurisdiction on the appellate court.” Redus, 154 S.W.3d at 155 n. 15
(emphasis added). Mere recitation of the statutory language is insufficient. Id. And
any inference that might be drawn from the district attorney’s signature on a notice
of appeal reciting the statutory language is also insufficient to satisfy the statutory
requirement. Id. at 157.
9. In Redus, the Court of Criminal Appeals ruled that the Court of Appeals
lacked jurisdiction when the notice of appeal quoted the statutory language, and was
actually signed by the elected district attorney; but he did not explicitly certify, or
vouch for, the required facts. Redus, 445 S.W.3d at 153, 156-57. The Court affirmed
the Court of Appeals’ holding that “a recitation of the pertinent Code provision does
not amount to a certification, as required by Article 44.01(a)(5).” Id. at 153.
10.
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ACCEPTED 08-15-00002-CR 08-15-00002-CR EIGHTH COURT OF APPEALS EL PASO, TEXAS 1/30/2015 9:55:04 AM DENISE PACHECO CLERK
IN THE COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS FILED IN 8th COURT OF APPEALS EL PASO, TEXAS THE STATE OF TEXAS, § 1/30/2015 9:55:04 AM § DENISE PACHECO Clerk Appellant, § § v. § No. 08-15-00002-CR § DANIEL VILLEGAS, § § Appellee. §
APPELLEE’S MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION
TO THE HONORABLE COURT OF APPEALS:
COMES NOW DANIEL VILLEGAS, Appellee, and moves the Court to
dismiss this appeal for want of jurisdiction, and would show the following:
1. Daniel Villegas is charged with capital murder, after his 1995 conviction
was vacated by the Texas Court of Criminal Appeals. Ex parte Villegas, No.
WR-78,260-01 (Tex.Crim.App. Dec. 18, 2013). This is an attempted interlocutory
appeal by the State from a trial court order excluding evidence. However, the Court’s
jurisdiction over such appeals is limited by statute, and exists only when the
prosecuting attorney personally certifies that the evidence is of substantial importance
in the case and the appeal is not taken for the purpose of delay. The Texas Court of Criminal Appeals has made clear that this certification requirement is the personal
obligation of the elected district attorney, and mere recitation of the statutory
language is insufficient. Instead of a personal certification by the district attorney,
however, the notice of appeal herein recites that “the State” so certifies. Because the
notice of appeal does not contain a personal certification by the prosecuting attorney,
this Court lacks jurisdiction.
2. The State appeals from a January 5, 2015 pretrial order excluding the
State’s evidence as irrelevant and inadmissible. [See Exhibit “A” hereto, the State’s
Notice of Appeal]. It attempts to appeal pursuant to Texas Code of Criminal
Procedure article 44.01(a)(5), which permits an appeal from an order granting a
motion to suppress evidence. [Ex. A, p. 1].
3. The State’s right of appeal in criminal matters is defined and limited by
statute. TEX.CODE CRIM.PRO. art. 44.01; see TEX.R.APP.P. 25.2(a)(1). Appeals by
the government are “carefully circumscribed” in order to “safeguard individuals from
the special hazards inherent in prolonged litigation with the sovereign.” State v.
Redus, 445 S.W.3d 151, 154 n. 13 (Tex.Crim.App. 2015).1 In order to appeal, the
1 This statement from Redus quotes authority describing federal government appeals. However, Article 44.01 is intended to afford the State the same appellate powers as the federal government. State v. Moreno, 807 S.W.2d 327, 332 (Tex.Crim.App. 1991). And the federal certification-of-appeal requirement serves the same purpose as the Texas requirement. Redus, 445 S.W.3d at 157. 2 State must strictly comply with Article 44.01. Noncompliance with that statute’s
specific provisions is “a substantive failure to invoke the court of appeals’ statutorily
defined jurisdiction.” State v. Riewe, 13 S.W.3d 408, 411 (Tex.Crim.App. 2000),
quoting State v. Muller, 829 S.W.2d 805, 812 (Tex.Crim.App. 1992).
4. Article 44.01(a)(5) permits an appeal from 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, confession, or
admission is of substantial importance in the case[.]” TEX.CODE CRIM.PRO. art.
44.01(a)(5) (emphasis added). The Rules of Appellate Procedure require compliance
with Article 44.01, including this certification requirement, for a notice of appeal to
be “sufficient.” Riewe, 13 S.W.3d at 411; TEX.R.APP.P. 25.2(c)(2). The prosecuting
attorney’s certification is necessary to confer jurisdiction on the Court of Appeals.
Redus, 445 S.W.3d at 152; Riewe, 13 S.W.3d at 409, 411. For this reason, any
attempted appeal by the State must be dismissed for want of jurisdiction if the proper
certification is not filed within 20 days after the trial court enters its order suppressing
evidence. Redus, 445 S.W.3d at 156.
5. The statutory certification requirement is no mere technicality; it carries
serious purpose. Redus, 445 S.W.3d at 157. Article 44.01(a)(5) was drafted so that,
as a practical matter, the State will appeal pretrial suppression orders only when the
3 trial judge’s ruling effectively puts an end to the case, or when a point of law is
deemed so crucial and so likely to recur that an adverse ruling is “devastating to the
legal system or the concept of fair play.” Redus, 445 S.W.3d at 154. The required
certification by the district attorney is thus intended to mandate a conscientious pre-
appeal analysis and a careful appraisal of the likelihood of success and necessity for
review before an appeal is undertaken. Id. at 154, 155 n. 14. It is also intended to
ensure that prosecutors do not appeal trial judges’ rulings indiscriminately and clog
up appellate courts while leaving the defendant under the continuing cloud of
criminal charges. Id. at 154.
6. Significantly, the requirement of certification is personal to the elected
prosecuting attorney. The “prosecuting attorney” is defined to mean the district or
county attorney with primary responsibility for prosecuting cases in the court, and
does not include an assistant prosecuting attorney. TEX.CODE CRIM.PRO. art.
44.01(i). The statute is not satisfied by certification by an assistant prosecuting
attorney. Redus, 445 S.W.3d at 154, n. 12; Muller, 829 S.W.2d at 808-09. The
failure of the elected prosecuting attorney to make the certification is a jurisdictional
defect. Riewe, 13 S.W.3d at 410; Muller, 829 S.W.2d at 811-12.
7. Therefore, an appeal is permitted only if “the elected prosecutor
personally certifies” to the statutory requirements. Redus, 445 S.W.3d at 154
4 (emphasis added). The certification is itself a representation, by an officer of the
court, that the appeal is not for delay and the suppressed evidence is material. Id. at
155 n. 14.2 “The elected prosecutor puts his reputation and integrity, as well as his
signature, on the line in filing notice of an interlocutory appeal.” Id. at 154-55.
8. Accordingly, “the elected prosecutor’s personal certification is necessary
to confer jurisdiction on the appellate court.” Redus, 154 S.W.3d at 155 n. 15
(emphasis added). Mere recitation of the statutory language is insufficient. Id. And
any inference that might be drawn from the district attorney’s signature on a notice
of appeal reciting the statutory language is also insufficient to satisfy the statutory
requirement. Id. at 157.
9. In Redus, the Court of Criminal Appeals ruled that the Court of Appeals
lacked jurisdiction when the notice of appeal quoted the statutory language, and was
actually signed by the elected district attorney; but he did not explicitly certify, or
vouch for, the required facts. Redus, 445 S.W.3d at 153, 156-57. The Court affirmed
the Court of Appeals’ holding that “a recitation of the pertinent Code provision does
not amount to a certification, as required by Article 44.01(a)(5).” Id. at 153.
10. The Court in Redus rejected the State’s argument that its interpretation
of Article 44.01(a)(5)’s personal certification requirement is hypertechnical. Id. at
2 Citing federal authority; see footnote 1, supra. 5 158. The statutory requirement is not a mere “technicality.” Id. at 157. It ensures
that the prosecutor carefully analyzes the case before deciding to appeal. Id. “Courts
are not ‘hypertechnical’ in requiring the elected prosecutor to actually vouch for the
facts that his interlocutory appeal is not being taken for purposes of delay and that the
evidence suppressed is of ‘substantial importance’ to the case.” Id. at 158.
11. As explained in Redus, the certification will normally take the form “I,
John Doe, the District Attorney of XYZ County, certify that ... .” Redus, 445 S.W.3d
at 156. No special form is required, “as long as the elected prosecutor vouches for
these two facts.” Id.
12. The State’s Notice of Appeal in this case does not contain a personal
certification by the prosecuting attorney. It does not certify that the elected
prosecutor personally vouches for the facts he is required by Article 44.01 to certify.
Instead, it recites that “The State certifies that jeopardy has not attached in this case,
the appeal is not taken for the purpose of delay, and the evidence is of substantial
importance in the case.” [Ex. A, p. 2, emphasis added]. The literal text of Article
44.01 is clear, and it is construed in accordance with its plain meaning. Muller, 829
S.W.2d at 808. A certification by “the State,” rather than a personal certification by
the prosecuting attorney, does not satisfy the plain language of Article 44.01(a)(5).
6 13. The Court should follow Redus.3 The notice of appeal in this case
contains a recitation that “the State” certifies to the statutory requirements, but does
not include a personal certification from the elected district attorney. In the absence
of such a personal certification, personally vouching for the facts required to be
personally certified by statute, the notice of appeal is not sufficient to confer
jurisdiction on this Court. The appeal should be dismissed for want of jurisdiction.
WHEREFORE, PREMISES CONSIDERED, Appellee prays that the Court
dismiss the appeal for want of jurisdiction, and for such other relief to which he may
be justly entitled.
Respectfully submitted,
/s/ Joe A. Spencer, Jr. Joe A. Spencer, Jr. Law Office of Joe Aureliano Spencer, Jr. Texas Bar No.18921800 1009 Montana Ave. El Paso, TX 79902 Tel. (915) 532-5562 Fax (915) 532-7535 joe@joespencerlaw.com
3 Other Courts have been forced to dismiss appeals since the Court of Criminal Appeals clarified the certification requirement in Redus. State v. Chapa, 2014 WL 5573430 at *1 (Tex.App.–Houston [1st Dist.] 2014, no pet.) (memo. op.); State v. Rodriguez, 2014 WL 5309661 at *1 (Tex.App.–Houston [14th Dist.] 2014, no pet.) (memo. op.); State v. Moore, 2014 WL 5309874 at *1 (Tex.App.–Houston [14th Dist.] 2014, no pet.) (memo. op.). Appellee believes that this is the first appeal taken by the El Paso County District Attorney under Article 44.01(a)(5) since Redus. 7 /s/ John P. Mobbs John P. Mobbs Attorney at Law Texas Bar No. 00784618 7170 Westwind Dr., ste. 201 El Paso, Texas 79912 Tel. 915-541-8810 Fax 915-541-8830 Email johnmobbs@gmail.com
Luis Gutierrez Attorney at Law Texas Bar No. 00792139 521 Texas Ave. El Paso, Texas 79901 Tel. (915) 577-0915 Fax (915) 577-0790
ATTORNEYS FOR DANIEL VILLEGAS
CERTIFICATE OF SERVICE
The undersigned counsel certifies that this pleading was served on Jaime Esparza, El Paso District Attorney, Attn: Lily Stroud, Assistant District Attorney, 500 E. San Antonio, rm. 201, El Paso, TX, 79901 (lstroud@epcounty.com), Attorney for Appellant, on January 30, 2015, by electronic service.
/s/ John P. Mobbs John P. Mobbs
8 EXHIBIT "A"