NO. 03-14-00547-CR

IN THE COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

AT AUSTIN

__________________________________________________________________

NO. CR-12-0005

IN THE 428TH DISTRICT COURT

OF HAYS COUNTY, TEXAS

__________________________________________________________________

STATE OF TEXAS,

APPELLANT

V.

BRYAN ROLAND CHANDLER,

APPELLEE

__________________________________________________________________

APPELLEE’S MOTION TO DISMISS THE STATE’S APPEAL

__________________________________________________________________

LINDA ICENHAUER-RAMIREZ

ATTORNEY AT LAW

1103 NUECES

AUSTIN, TEXAS 78701

TELEPHONE: 512-477-7991 FACSIMILE 512-477-3580

EMAIL: LJIR@AOL.COM

SBN: 10382944

 ATTORNEY FOR APPELLEE 

ACCEPTED

03-14-00547-CR

4853437

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/10/2015 8:11:30 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/10/2015 8:11:30 PM JEFFREY D. KYLE Clerk
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TO THE HONORABLE THIRD COURT OF APPEALS:

COMES NOW, Bryan Roland Chandler, Appellee, by and through his 

attorney of record, Linda Icenhauer-Ramirez, and files this his Motion to 

Dismiss the Appeal and in support thereof, would show the Court the 

following:

I.

That the above-styled and numbered cause is styled The State of 

Texas v. Bryan Roland Chandler, Cause Number CR-12-0005 in the 428th 

Judicial District Court of Hays County, Texas. Appellant was sentenced on 

February 23, 2012. The trial court entered a judgment nunc pro tunc on 

August 7, 2014.

II.

Appellee was convicted of one count of aggravated assault with a 

deadly weapon (family violence) after entering into a plea bargain with the 

State. The parties agreed that appellant’s punishment would be assessed at 

ten years imprisonment and there would be no affirmative finding of a 

deadly weapon. (C.R. 6-13) Despite this agreement, the original written

judgment in the case contained an affirmative finding of a deadly weapon. 

(C.R. 14-16) A judgment nunc pro tunc signed and entered by the trial court 

on March 23, 2012 corrected appellee’s backtime credit but still erroneously 
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contained an affirmative finding of a deadly weapon. (C.R. 18-19).

III.

On April 17, 2014, Appellee filed a motion for a judgment nunc pro 

tunc asking the trial court to correct the deadly weapon finding. (C.R. 20-

35) On August 7, 2014, the trial court held a hearing on the matter and after

hearing the arguments of counsel and reviewing the record in the cause, 

granted appellee’s motion for judgment nunc pro tunc. (R.R. I) On August 

7, 2014, the assistant criminal district attorney filed written notice of appeal. 

(C.R. 38-39) On October 2, 2014, the elected criminal district attorney filed 

an affidavit saying that she had authorized the assistant criminal district 

attorney to file the appeal in this cause. (C.R. 48) The Nunc Pro Tunc 

Judgment of Conviction by Court – Waiver of Jury Trial was signed and 

filed in this case on October 2, 2014. (C.R. 49-50)

IV.

THE STATE’S APPEAL MUST BE DISMISSED BECAUSE THE 

NOTICE OF APPEAL WAS NOT TIMELY SIGNED OR 

AUTHORIZED BY THE ELECTED CRIMINAL DISTRICT 

ATTORNEY.

The Law and the Argument

The appellee filed a Motion for Judgment Nunc Pro Tunc on April 17, 

2014. (C.R. 20-35) The trial court held the hearing on Appellee’s motion 

on August 7, 2014. (R.R. I, pp. 4-9) At the conclusion of the hearing, the 
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trial court granted appellee’s motion and ordered that the judgment in the 

case be corrected by deleting the affirmative finding of a deadly weapon. 

(R.R. I, pp. 8-9) The State filed written notice of appeal on August 7, 2014. 

This notice of appeal was not signed by the elected criminal district attorney 

Sherri K. Tibbe; rather it was signed by assistant district attorney Brian 

Erskine. (C.R. 38-39) On October 2, 2014, the State filed an affidavit 

signed by Sherri K. Tibbe, the elected criminal district attorney for Hays 

County. In her affidavit she stated that on August 7, 2014, she had 

authorized Brian Erskine to file an appeal in this cause. (C.R. 48) On 

October 2, 2014, the Nunc Pro Tunc Judgment of Conviction by Court –

Waiver of Jury Trial was filed in this case. (C.R. 49-50) 

In Muller v. State, 829 S.W.2d 805 (Tex.Cr.App. 1992), the Court of 

Criminal Appeals looked at the requirements for a State’s notice of appeal. 

The Court of Criminal Appeals wrote:

“ . . . Article 44.01 contains two checks on the discretion of a 

prosecuting attorney's office. The first check is the requirement 

of approval from the prosecuting attorney. Requiring personal 

approval creates a bottleneck in the office of the prosecuting 

attorney through which all appeals must pass. An assistant does 

not have the discretion or personal authority to file a notice of 

appeal absent explicit instruction to do so by the prosecuting 

attorney. 829 S.W.2d at 810.

The Court went on to write:

“We must next interpret the term "make an appeal," as used in 
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section (d) of Article 44.01. When considered in light of section 

(i)'s express exclusion of assistant prosecutors from its 

definition of "prosecuting attorney," it is clear that the phrase 

"make an appeal" clearly requires--at the minimum--the 

prosecuting attorney to personally supervise and authorize the 

appeals to be undertaken by his office on behalf of the State. 

That is, the statute, when construed as an internally consistent 

and integrated whole, seeks to ensure that the prosecuting 

attorney himself personally authorize specific appeals filed on 

behalf of the State.

We do not suggest that Article 44.01 necessarily requires that a 

State's notice of appeal must, in all cases, reflect the personal 

signature of the prosecuting attorney. However, the plain 

meaning of the literal text of Article 44.01(d) requires the 

prosecuting attorney to "make an appeal" by personally 

authorizing--in some fashion--the specific notice of appeal in 

question. More specifically, to comply with the statute, he must 

either physically sign the notice of appeal or personally instruct 

and authorize a subordinate to sign the specific notice of appeal 

in question. Because of the jurisdictional limitations of Article 

44.01, discussed infra, we further read the statute to require this 

personal authorization to occur prior to the expiration of the 

fifteen day1 window of appeal.” 829 S.W.2d at 810.

Thus, if the notice of appeal is signed by an assistant prosecuting attorney, 

the State must file something within twenty days of the issuance of the 

order, showing that the elected prosecuting attorney authorized the filing of 

the notice of appeal.

In this case, the State’s notice of appeal was defective and was not 

timely corrected. As noted above, the elected prosecuting attorney--not an 

 1

 At the time Art. 44.01, V.A.C.C.P. provided that the State had to file notice of appeal 

within 15 days of the order it sought to appeal. That time limit is now 20 days. Art. 

44.01(d).
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assistant--must personally supervise and authorize appeals pursuant to article 

44.01. State v. Muller, supra. To comply with the statute, the elected 

prosecuting attorney must either physically sign the notice of appeal or 

personally instruct and authorize a subordinate to do so and evidence of that 

authority must be filed within the twenty day period in order to perfect the 

appeal. Id. The notice of appeal in this cause was signed by the assistant 

criminal district attorney. (C.R. 38-39) The affidavit which was signed by 

the elected criminal district attorney and filed later on October 2, 2014, was 

not timely. This defect could not be cured by the untimely filed affidavit. 

State v. Riewe, 13 S.W.3d 408, 412-414 (Tex.Cr.App. 2000). As a result, 

the State did not properly file its notice of appeal and this appeal must be 

dismissed. State v. Lagunas, 2002 Tex. App. LEXIS 2568 (Tex.App.-Austin 

2002, no pet.).

V.

THE STATE’S APPEAL MUST BE DISMISSED BECAUSE UNDER 

ART. 44.01, V.A.C.C.P, THE STATE HAS NO RIGHT TO APPEAL 

FROM A JUDGMENT NUNC PRO TUNC.

Art. 44.01, V.A.C.C.P. gives the State a limited right to appeal an 

order of a court in a criminal case. The State may appeal from an order 

that:

(1) dismisses an indictment, information, or complaint or any 

portion of an indictment, information, or complaint;
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(2) arrests or modifies a judgment;

(3) grants a new trial;

(4) sustains a claim of former jeopardy;

(5) grants a motion to suppress evidence, a confession, or an 

admission, if jeopardy has not attached in 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, 

confession, or admission is of substantial importance in the 

case; or

 (6) is issued under Chapter 64.

The order which the State seeks to appeal is an order granting a motion for a 

judgment nunc pro tunc. This order was made to correct a clerical error --

the court’s judgment incorrectly contained an affirmative finding of a deadly 

weapon. Such an order is not one of those listed in Art. 44.01 and thus 

does constitute the type of order the State can appeal.

Although in its notice of appeal, the State asserted that it was 

appealing “an order that modifies the judgment” a reading of the record, 

shows that this is not true. The court’s order approving the entry of a 

judgment nunc pro tunc did not modify the judgment but rather conformed 

the final judgment paperwork to the events which occurred in the courtroom. 

During appellant’s plea hearing, there was no discussion of an affirmative 

finding of a deadly weapon by the parties and the trial court made no 
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affirmative finding of a deadly weapon. Thus the original judgment was in 

error when it contained an affirmative finding of a deadly weapon. The 

judge’s order approving the judgment nunc pro tunc which omitted the 

affirmative finding of a deadly weapon in no way modified the court’s 

judgment but rather accurately reflected it. This action did not come within 

one of those situations from which the State is given the right to appeal. 

The State’s appeal should be dismissed.

WHEREFORE, PREMISES CONSIDERED, Appellee respectfully 

requests that this Honorable Court dismiss the State’s appeal in this cause.

Respectfully Submitted,

/s/ Linda Icenhauer-Ramirez

LINDA ICENHAUER-RAMIREZ

Attorney at Law

1103 Nueces

Austin, Texas 78701

(512) 477-7991

FAX #: (512) 477-3580

SBN: 10382944

EMAIL: ljir@aol.com

ATTORNEY FOR APPELLEE
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CERTIFICATE OF COMPLIANCE

I hereby certify that this motion was computer generated and contains 

1707 words, as calculated by the word count function on my computer.

/s/ Linda Icenhauer-Ramirez 

LINDA ICENHAUER-RAMIREZ

CERTIFICATE OF SERVICE

I, Linda Icenhauer-Ramirez, hereby certify that a true and correct 

copy of the foregoing Appellee’s Motion to Dismiss the State’s Appeal was 

e-served to Brian Erskine of the Hays County District Attorney's Office on 

this the 10th day of April, 2015.

/s/ Linda Icenhauer-Ramirez

LINDA ICENHAUER-RAMIREZ