DISMISSED FOR WANT OF JURISDICTI ON; and Opinion Filed July 18, 2023 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00220-CR THE STATE OF TE XAS, Appellant V. WHITNEY S. VILLA, Appellee On Appeal from the County Crim inal Court of Appeals No. 1 Dallas County, Texas Trial Court Cause No. MC-21-R0003-D OPINION Before Justices Carlyle, Goldstein, and Kennedy Opinion by Justice Kennedy In the City of Mesquite Municipal Cour t, a municipal court of record, a jury convicted Whitney S. Villa of assault by contact, a Class C misdemeanor, and the court assessed a fine of $3 31 as Villa’s punishment. See T EX

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. § 22.01(a)(3), (c). Villa appealed th e municipal court’s judgment to County Criminal Court of Appeals No. 1, whic h ruled in Villa’s favor, reversed the municipal court’s judgment, and remanded Villa’s case fo r a new trial. The State now seeks to appeal the county criminal cour t of appeals’ judgment to this Court.–2– We questioned this Court’s jurisdiction over the State’s appeal because it does not meet the requirements of Texas Govern ment Code Section 30. 00027(a), and, on our own motion, we asked the parties to s how cause why this appeal should not be dismissed. See T EX

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. § 30.00027(a) (setting fo rth the requirements for appeals of matters originating in munici pal courts of record to the courts of appeal). The State responded asserting we have jurisdic tion over its appeal. Villa responded urging this Court to follow the Fo rt Worth Court of Appeals’ decision in State v. Pugh and dismiss the appeal for lack of jurisdiction. No. 02-21-00108-CR, 2022 WL 1793518 (Tex. App.—Fort Worth J une 2, 2022, no pet.) (mem. op., not designated for publication). For the reasons set forth herein, we conclude we do not have jurisdiction over the State’s appeal.
D ISCUSSION I. Right of Appeal In Texas, appeals by either the State or the defendant in a criminal case are permitted only when they are specifically authorized by statute. State ex rel. Lykos
v. Fine , 330 S.W.3d 904, 915 (Tex. Cr im. App. 2011) (orig. proceeding). And “[t]he standard for determining jurisdiction is no t whether the appeal is precluded by law, but whether the appeal is authorized by law.” Id. (quoting Abbott v. State , 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008)). Thus, while the legislature has generally granted the courts of appeals appellate jurisd iction coextensive with the limits of their respective districts in all cr iminal cases except thos e in which the death–3– penalty has been assessed, w ith a minimum fine requirement in cases appealed from an inferior court to one of the count y courts, unless the sole issue is the constitutionality of the statute or ordina nce on which the conviction is based, whether the court may exercise jurisdic tion in a specific case still depends upon whether the appealing party has been given the right to appeal. See T EX

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. art. 4.03. Article 44.02 of the C ode of Criminal Procedure states a defendant’s general right of appeal, and Article 44.01 pr ovides the State a limited right of appeal. 1 Id. arts. 44.01–.02. When we cons ider whether a party has been granted a right to appeal, we default to these provisions unless another legislative directive applicable to th e case provides otherwise. See, e.g. , Dallas Cnty. v. Coutee , 233 S.W.3d 542, 545 (Tex. App.—D allas 2007, pet. denied).

1 Under Article 44.01, “The state is entitled to app eal an order of a court in a criminal case if the order: (1) dismisses an indictment, information, or co mplaint or any portion of an indictment, information, or complaint; (2) arrests or modifies a judgment; (3) gr ants a new trial; (4) sust ains 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 prosecu ting attorney certifies to the trial cour t 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 [addressing miscellaneous proceedings].” C RIM

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. art. 44.01(a). In addition, the State is entitled to appeal (1) a sentence in a case on the ground that the sentence is illegal, (2) a ruling on a question of law if the defendant is conv icted in the case and appeals the judgment, (3) an order granting relief to an applicant for a writ of habeas co rpus under Article 11.072, (4) an order entered under Subchapter G or H, Chapter 62, that exempts a pe rson from complying with the requirements of Chapter 62, and Subchapter I, Chapter 62, that terminates a person’s obligation to register under Chapter 62. Id. art. 44.01(b), (c), (k), ( l ). Under Article 44.02, “A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before th e defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the co urt and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may pr osecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.” Id. art. 44.02.–4– II. Initial Appeal of Municipal Court of Record Judgment or Conviction Section 30.00014(a) of the Texas Government Code gove rns an initial appeal of a municipal court of record’s judgment or conviction. See G OV ’ T § 30.00014(a). Jurisdiction of such an appeal lies in the county criminal courts or the county criminal courts of appeal in the county in which the municipality is located, or in the municipal county courts of appeal, or in th e county courts at law, as a default in the absence of the aforementioned courts. Id. Section 30.00014 does not apply to subsequent appeals from the county c ourts to the courts of appeals. See Pugh , 2022 WL 1793518, at *2. Section 30.00014 affords a defendant the right to appeal from a judgment or conviction of a municipa l court of record. G OV ’ T § 30.00014(a). The State has the right to appeal as provided by Article 44.01 of the Texas Code of Criminal Procedure. Id. § 30.00014(a). The actions listed in Article 44.01(a) are typically actions that are taken by a trial court and, thus, are logically subject to an initial appeal. To preserve a co mplaint for appeal to the county criminal court, the appealing party must set forth its co mplaint in a motion for new trial. Id. § 30.00014(c). Unlike appeals from a “municipal court,” an appeal from a “municipal court of record” may not be by trial de novo; rather , it is truly an appeal of the underlying decision. Id. § 30.00014(b); C RIM

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. art. 44.17 (“In all app eals to a county court from . . . municipal courts other than municipa l courts of record, the trial shall be de–5– novo . . . in the county court, the same as if the pros ecution had been originally commenced in that court. An appeal to the county court from a municipal court of record may be based only on erro rs reflected in the record.”); C RIM

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. art. 45.042(b) (“Unless the appeal is from a munici pal court of record and the appeal is based on error reflected in the record, the trial shall be de novo. ”). Section 30.00014 does not address the issue of subsequent appeals. In the current case, it was Villa, not th e State, who perfected an appeal from the municipal court of record to the county criminal court of appeals. Dissatisfied with that court’s resolution of Villa’s appeal, reversing the judgment of the municipal court of record a nd remanding the case for a new trial, the State now seeks review from this Court. Accordingly, we di scuss the requisites for an appeal to this Court following the county criminal court of appeals’ resolution of an appeal of a municipal court of record’s ju dgment or conviction.
III. Appeals to Court of Appeals The statute governing our jurisdiction, un der the circumstances in which this appeal reaches us, is S ection 30.00027 of the Texa s Government Code, titled “Appeals to Court of Appeals.” See G OV ’ T § 30.00027; Pugh , 2022 WL 1793518, at *1. Pursuant to Secti on 30.00027(a), “The appellant has the right to appeal to the court of appeals if: (1) the fine a ssessed against the defendant exceeds $100 and the–6– judgment is affirmed by the appellate court; 2 or (2) the sole issue is the constitutionality of the statute or ordina nce on which a conviction is based.” G OV ’ T § 30.00027(a) (emphasis added). In our order requesting le tter briefs from the parties addressing this Court’s jurisdiction ove r the State’s appeal, we questioned our jurisdiction because (1) the St ate, as the appellant, is not appealing a case in which the fine assessed exceeds $100 and the municipal court of record’s judgment is affirmed by the county criminal court of a ppeals, sitting as the appellate court, and (2) the State’s appeal does not involve th e constitutionality of any underlying statute or ordinance on which the conviction was based.
IV. The State’s Arguments In the State’s letter brief, it contends that we have jurisdiction to hear its appeal under Article “44.01 of the Texa s Code of Criminal Procedure, by and through Section 30.00014 of the Texas Government Code, through Section 30.00027(b) of the Texas Gove rnment Code.” The State relies principally on this Court’s decision in Morales and the Texas Court of Criminal Appeals’ decision in Blankenship to urge it has a right to appeal under Article 44.01. See State v. Blankenship , 146 S.W.3d 218 (Tex. Crim. App. 2004); State v. Morales , 322 S.W.3d 297 (Tex. App.—Dallas 2010, no pet.). We will address the State’s arguments

2 With respect to municipal courts of record, the Government Code defines “appellate court” as “(A) the county criminal court, the county criminal cour t of appeals, or the municipal court of appeals; or (B) the county court at law if there is no county crimin al court, country criminal court of appeals, or municipal court of appeals.” G OV ’ T § 30.00002(1).–7– concerning these cases as we ll as its reference to Sec tions 30.00014 and 30.00027(b) of the Government Code.
A. Section 33.00014 – “Appeal” To the extent the State relies on Sec tion 30.00014(a), and its reference to Article 44.01 of the Texas Code of Criminal Procedure, to establish a right to appeal the county criminal court of appeal’s j udgment reversing the municipal court of record’s judgment and remanding the case for a new trial, its reliance is misplaced. Section 30.00014(a) applies to initial appeals from the munici pal courts of record to the county courts, not to subsequent appeal s from the county courts to the courts of appeals. Id. § 30.00014(a); Pugh , 2022 WL 1793518, at *2. Appeals to this Court are governed by Section 30.00027, titled “Appeals to Court of Appeals.” G OV ’ T § 30.00027(a); Pugh , 2022 WL 1793518, at *1.
B. Morales The State contends that the posture of the current case is similar to that of Morales andSanchez , cases in which this Court cons idered the merits of appeals by the State in cases that originated in municipal courts of record. Morales , 322 S.W.3d at 297; State v. Sanchez , 135 S.W.3d 698 (Tex. App.—Dallas 2003), aff’d , 138 S.W.3d 324 (Tex. Crim. App. 2004 ). The State concedes that this Court did not address the issue of jurisdiction in Sanchez , and we conclude Sanchez is not instructive here. With respect to Morales, the State contends that this Court expressly recognized jurisdiction over the State’s appeal and that, absent an–8– intervening change in the law by the legislat ure, a higher court, or this Court sitting en banc, this Court should not overrule Morales ’ jurisdictional determination. For the reasons set forth herein, we disagree with the State’s characterization of the scope of this Court’s decision in Morales and conclude the State’s reliance on Morales is misplaced.
In Morales , a jury convicted Morales of ha ving possessed drug paraphernalia and the trial court assessed a fine of $500 . Morales filed a motion for new trial, which the trial court granted. Morales then filed an a pplication for writ of habeas corpus asserting the new trial was barred by the double jeopardy clauses of the United States and Texas Constitutions. The trial court granted the application and entered a judgment of acquittal. In that cas e, the State, not the defendant, appealed to the county criminal court of appeals. Th at court affirmed the trial court’s orders, and the State appealed to this Court. We r ecognize here that on a ppeal to this Court, we referenced Government Code Section 30.00014 (a) and Article 44.01 of the Code of Criminal Procedure, along with Sectio n 30.00027 of the Government Code. But we did so only in the recital of the fact s while simply noting that the appeal was timely filed. Contrary to the State’s asse rtion, this Court did not expressly recognize that it had jurisdiction over the substance of the State’s appeal and did not analyze whether a specific statute authorized ex ercise of jurisdiction over the case. Moreover, the fact that the Court went on to decide the case on the merits does not impact or control our decision here becau se it is beyond question that a court may–9– not by its own action, explicitly or im plicitly, expand juri sdiction beyond that granted by the Constitution or legislature. City of Amarillo v. Hancock , 239 S.W.2d 788, 791 (Tex. 1951); see also Emps. Ret. Sy s. of Tex. v. Foy , 896 S.W.2d 314, 316 (Tex. App.—Austin 1995, writ denied).
C. Blankenship Next, the State asserts that in Blankenship the court of criminal appeals addressed the court of appeals’ jurisdiction in a municipal court of record appeal and did so by applying and referenc ing Article 44.01 of the Code of Criminal Procedure. Blankenship , 146 S.W.3d at 218. While the court ma y have referenced Article 44.01, the focus of the court’s opinion was on s ubsection (d), dealing with the notice of appeal deadline, 3 and whether the County Attorn ey “made” the appeal, and was limited to the issue of whether the Count y Attorney had consented to the City Attorney’s prosecuting the appeal under Ar ticle 45.201 of the Code of Criminal Procedure. 4

3 We recognize that in footnote 1 of the opinion, the court stated, “Article 44.01(a) and (b), T EX

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4 Article 45.201(c) provides, “With the consent of the county attorney, appeals from municipal court to a county court, county cour t at law, or any appellate court may be prosecuted by the city attorney or a deputy city attorney.” C RIM

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. art. 45.201(c). Article 44.01( d) provides, “The prosecuting–10– In that case, the court of criminal app eals noted that after the time for filing a timely notice of appeal expired, Blankens hip filed a motion to dismiss the appeal claiming the court of appeals lacked jurisd iction over the appeal because neither the amended notice of appeal nor anything else in the record reflected that the County Attorney “personally” made the appeal. State v. Blankenship , 123 S.W.3d 99, 102– 05 (Tex. App.—Austin 2003), rev’d , 146 S.W.3d 218 (Tex. Crim . App. 2004). The court of appeals decided that the asserti on in the City’s amended notice of appeal that the County Attorney consented to th is particular appeal under Article 45.201, failed to satisfy Article 44.01( d)’s requirement that the County Attorney “make” the appeal. Id. at 105. The court of criminal appeal s disagreed with the court of appeals and concluded that an assertion in a notice of appeal, such as the one at issue there, could simultaneously comply w ith Articles 45.201 and 44.01(d). Blankenship , 146 S.W.3d at 220. Conse quently, we conclude Blankenship does not support the State’s assertion that this Court has jurisdiction over its appeal.
V. Section 30.00027 – “Appeals to Court of Appeals” This brings us back to Section 30. 00027. Unlike Section 30.00014, Section 30.00027 does not expressly re fer to Article 44.01 of the Code of Criminal Procedure. Had the legislatur e intended to give the State the right to appeal to the

attorney may not make an appeal unde r Subsection (a) or (b) of this artic le later than the 20th day after the date on which the order, ruling, or sentence to be appealed is entered by the court. Id. art. 44.01(d).–11– courts of appeal under Article 44.01, it coul d have used the same language in Article 30.00027, but it did not. When the legislat ure has employed a te rm in one section of a statute and excluded it in another, we presume the legislature had a reason for excluding it. See Fireman’s Fund Cnty. Mut. Ins. Co. v. Hidi , 13 S.W.3d 767, 769 (Tex. 2000); see also Laidlaw Waste Sys. (Dallas) Inc. v. City of Wilmer , 904 S.W.2d 656, 659 (Tex. 1995) (when legislature uses a word or phrase in one portion of statute but excludes it from another, the term s hould not be implied where it has been excluded). With respect to the history of Secti on 30.00027, we note th at the earliest version of Section 30.00027 was Section 30. 505, and it used the term “defendant” when addressing the right to appeal. 5 Act of May 23, 1987, 70th Leg., R.S., ch. 811, § 1, 1987 Tex. Gen. Laws, 2809, 2814. Eff ective September 1, 1997, Section 30.505 was renumbered (without any editing) as Section 30.00025. Ac t of May 8, 1997, 75th Leg., R.S., ch. 165, § 8.02, 1997 Tex. Gen. Laws 327, 389. Thus, at one time the restriction on the right to appeal in what would later beco me Section 30.00027 applied only to defendants who had appealed from the m unicipal court to the county court, who lost their appeal in the county court, and who wanted to appeal from the

5 Section 30.505 provided, “The defendant has the righ t to appeal to the court of appeals if the fine assessed against the defendant exceeds $100 and if the ju dgment is affirmed by the appellate court. The provisions of the code of criminal procedure relating to direct appeals from a county or a district court to the court of appeals apply to the appeal, except that: (1 ) the record and briefs on appeal in the appellate court constitute the record and briefs on appeal to the court of appeals unless the rules of the court of criminal appeals provide otherwise; and (2) the record and briefs shall be filed di rectly with the court of appeals.”–12– county court to the courts of appeals. But effective September 1, 1999, Section 30.00025 was renumbered as Section 30.00027 and, in conn ection with the recitation of the right to appeal, the designation of “defendant” was replaced w ith “appellant.” Act of May 27, 1999, 76th Leg., R.S., ch. 691 § 1, 1999 Tex. Gen. Laws, 3263, 3270. When the legislature amends a statute, we presume that the legi slature intended to change the law, and we give effect to that intended change
. Brown v. State , 915 S.W.2d 533, 536 (Tex. App.—Dallas 1995), aff’d , 943 S.W.2d 35 (Tex. Crim. App. 1997). By changing “defendant” to “appellant,” the legislatur e broadened Section 30 .00027(a) to include the State. Pugh , 2022 WL 1793518, at *3. Because the State falls under Section 30.00027(a), we have no need to look beyond it for a defa ult provision, and Article 44.01 is not implicated. 6 Finally, we consider what, if any, impact Section 30.00027(b) has on the parties’ rights to appeal to the court of appeals. Section 30.00027(b) provides: The provisions of the Code of Crim inal Procedure relating to direct appeals from a county or a district court to the court of appeals apply to

6 The dissent contends applying Section 30.00027(a) to the State, as appellant, would lead to absurd results because “it is unlikely that the State would ever have the authority to appeal.” We recognize that Section 30.00027(a) is more restrictive than Article 44 .01. We disagree with the dissent as to the extent of that restriction, and note that, nevertheless, the legislat ure is entitled to restrict the breadth of its grants of subsequent appeal authority, and that the restricti ons do not altogether foreclose the State’s ability, under the right circumstances, to seek further review from th is Court or discretionary review from the court of criminal appeals. See Lykos , 330 S.W.3d at 915; C RIM

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. art. 44.03. The dissent also references Section 30.00026, which provides that if the appellate court (county court of criminal appeals) awards a new trial to the appellant, the case stands as if a new tria l had been granted by the municipal court of record, and, citing Section 30.00014, suggests this affords the St ate the opportunity to appeal to this Court pursuant to Section 30.00014’s reference to Article 44.01. Bu t nothing in Section 30.0002 6 references a subsequent appeal to this Court, and, for the reasons stated supra , Section 30.00014 does not apply to appeals to this Court.–13– the appeal, except that: (1) the record and briefs on appeal in the appellate c ourt constitute the record and briefs on appeal to the court of appeals unless the rules of the court of criminal appeals provide otherwise; and (2) the record and briefs shall be file d directly with the court of appeals.
G OV ’ T § 30.00027(b). We concl ude, as our sister court of appeals did in Pugh , that Section 30.00027(b) addresses pr ocedural, not jurisdictional, issues, as evidenced by the reference to the record a nd briefs and the filing thereo f, and we do not read it to broaden our jurisdiction beyond that set forth in Section 30.00027(a). If Section 30.00027(b) broade ned the right of appeal to include Article 44.01 of the Code of Criminal Procedure, notwith standing the legislature’s decision not to reference the provision in Section 30.00027, we would have to include—in addition to Article 44.01—Article 44.02, addressing a defendant’s right to appeal. With exceptions applicable to plea bargains not relevant here, Article 44.02 affords defendants unrestric ted appeals. C RIM

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. art. 44.02. And if we applied both Article 44.01 and Article 44.02 to establish our jurisdiction to hear these appeals, then Section 30.00027(a) would be rendered meaningless. In interpreting a statute, we must read it as a whole and construe it to give meaning and purpose to every part. Ex parte Pruitt , 551 S.W.2d 706, 709 (Tex. 1977) (ori g. proceeding). Courts should avoid constructions that render statutes or portions thereof meaningless. See Ludwig
v. State , 931 S.W.2d 239, 242 n.9 (Tex. Crim. App. 1996); Gordon v. State , 707 S.W.2d 626, 629 (Tex. Crim. App. 1986). Moreover, ha d the legislature intended–14– that subsequent appeals to the court of appeals be governed solely and completely by the Code of Criminal Procedure, with onl y the restrictions in subsections (b)(1) and (2), it could have completely elim inated subsection (a). It did not.
C ONCLUSION The State has not satisfied either of th e paths to review before this Court as set forth in Section 30.00027(a) of the Gove rnment Code. Accordingly, this Court lacks jurisdiction over the State’s appeal. See Pugh , 2022 WL 1793518, at *6. Thus, we dismiss the State’s appeal for want of jurisdiction. See T EX

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Publish T EX

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Goldstein, J., dissenting /Nanc y Kenned y/ NANCY KENNEDY JUSTICE–15– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT THE STATE OF TEXAS, Appellant
No. 05-22-00220-CR V. WHITNEY S. VILLA, Appellee On Appeal from the County Criminal Court of Appeals No. 1, Dallas County, Texas Trial Court Cause No. MC-21- R0003-D. Opinion delivered by Justice Kennedy. Justices Carlyle and Goldstein participating. Based on the Court’s opinion of th is date, the State’s appeal is DISMISSED for want of jurisdiction.
Judgment entered this 18th day of July, 2023.