State v. Timothy Salinas

• Court: Court of Appeals of Texas
• Decided: August 6, 2008
• Docket: 04-07-00809-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-07-00809-CR

The STATE of Texas, Appellant

v.

Timothy SALINAS, Appellee

From the 218th Judicial District Court, Wilson County, Texas Trial Court No. 07-01-008-CRW Honorable Stella Saxon, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. López, Chief Justice Karen Angelini, Justice Rebecca Simmons, Justice

Delivered and Filed: August 6, 2008

DISMISSED FOR LACK OF JURISDICTION

The State appeals from the trial court’s order granting Timothy Salinas’s motion to suppress.

Because the State did not timely make the certification required by article 44.01(a)(5) of the Texas

Code of Criminal Procedure, we dismiss this appeal for lack of jurisdiction.

On July 23, 2007, the trial court granted Salinas’s motion to suppress. On August 3, 2007,

the State timely filed a notice of appeal. This notice of appeal, however, did not comply with article

44.01 of the Texas Code of Criminal Procedure because the prosecuting attorney did not certify that 04-07-00809-CR

the appeal was not being taken for the purpose of delay, nor that the evidence, confession, or

admission was of substantial importance in the case. See TEX. CODE CRIM. PROC. ANN. art.

44.01(a)(5) (Vernon Supp. 2007). Recognizing that it had failed to file a certification, the State filed

an amended notice of appeal containing the certification in this Court on December 13, 2007. This

amended notice of appeal, however, was untimely filed. See id. art. 44.01(d) (requiring the State

to make an appeal not “later than the 20th day after the date on which the order, ruling, or sentence

to be appealed is entered by the court”).

In State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000), the Texas Court of Criminal

Appeals addressed this issue of whether the State could file an out-of-time amended notice of appeal

to cure a jurisdictional defect in an original notice of appeal. The court of criminal appeals first

explained that failure to comply with article 44.01’s certification requirement is a substantive defect

that deprives a court of appeals of jurisdiction. Id. at 411. Thus, a State’s notice of appeal that lacks

the certification fails to confer jurisdiction on a court of appeals. Id. Then, the court of criminal

appeals addressed the State’s argument that once it filed its amended notice of appeal with the

proper certification, the court of appeals retroactively acquired jurisdiction. Id. at 412. The court of

criminal appeals rejected this argument, holding that once the jurisdiction of a court of appeals is

lost, it cannot be retroactively obtained. Id. at 413.

Here, the State did not timely file a notice of appeal containing article 44.01’s certification,

and its untimely filed amended notice of appeal cannot retroactively confer jurisdiction on us. Thus,

we have no jurisdiction over this appeal.

We note that in State v. Johnson, 175 S.W.3d 766, 766-67 (Tex. Crim. App. 2005), the court

of criminal appeals held that article 44.01’s certification need not necessarily be contained in a

notice of appeal but can be contained in an affidavit attached to the notice of appeal. Here, however,

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the State did not timely file any type of certification. Thus, Johnson does not apply to this appeal.

We dismiss this appeal for lack of jurisdiction.

Karen Angelini, Justice

Do not publish

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