State v. Kelly Cheek

• Court: Court of Appeals of Texas
• Decided: February 12, 2004
• Docket: 01-03-01175-CR
• Status: Published

Opinion

Opinion issued February 12, 2004

In The

Court of Appeals

For The

First District of Texas

____________

NOS. 01-03-01174-CR

          01-03-01175-CR

          01-03-01176-CR

THE STATE OF TEXAS, Appellant

V.

DAVID S. WARE, KELLY CHEEK, and

GALVANIZING SERVICES COMPANY, INC., Appellees

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On Appeal from County Criminal Court at Law No. 9

Harris County, Texas

Trial Court Cause Nos. 1142230, 1142232, and 1142228

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MEMORANDUM OPINION

               We lack jurisdiction to hear these State’s appeals. Appellees filed motions to quash the informations that the trial court granted on October 17, 2003. On that date, the trial court signed an order in each case granting the motions to quash and dismissing the informations. The State filed notices of appeal on November 5, 2003.

               The State is entitled to appeal an order that dismisses an information. Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Pamph. 2004). However, “[t]he prosecuting attorney may not make an appeal under Subsection (a) . . . of [article 44.01] later than the 15th day after the date on which the order . . . to be appealed is entered by the court.” Tex. Code Crim. Proc. Ann. art. 44.01(d) (Vernon Pamph. 2004). See also Tex. R. App. P. 26.2(b). The Court of Criminal Appeals has interpreted “entered by the court” to encompass the signing of an order by the trial judge. State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992).

               The fifteenth day following the trial court’s October 17, 2003 orders was Saturday, November 1, 2003. The deadline for filing the State’s notices of appeal was therefore Monday, November 3, 2003. See Tex. R. App. P. 4.1(a). The State has no right of appeal after the 15-day limit has expired. Irving v. State, 879 S.W.2d 220, 222 (Tex. App.—Houston [14th Dist.] 1994), aff’d on other grounds, 922 S.W.2d 959 (Tex. Crim. App. 1996). We hold that the State’s notices of appeal, filed on November 5, 2003, two days after the deadline, were untimely and fail to vest this Court with jurisdiction.

               We dismiss the appeals for lack of jurisdiction.

               It is so ORDERED.

PER CURIAM

Panel consists of Justices Taft, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).