### NO._______________________________

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS THE STATE OF TEXAS Petitioner

vs. JOHN ALLEN WACHTENDORF, JR.

Respondent

ON PETITION FOR DISCRETIONARY REVIEW FROM THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN,

NO. 03

- 14

- 00633

- CR

STATE’S PETITION FOR DISCRETIONARY REVIEW

Jana Duty District Attorney Williamson County, Texas

John C. Prezas State Bar No: 24041722 Assistant District Attorney 405 Martin Luther King, Box 1 Georgetown, Texas 78626

(512) 943

- 1234 (512) 943

- 1255 (fax) jprezas@wilco.org
ORAL ARGUMENT REQUESTED

### 2 

## IDENTIFICATION OF PARTIES
Appellant : State of Texas Trial Counsel: Danny Smith, SBN : 2404 6867 Elizabeth Whited, SBN : 240 6 0823 405 MLK St., Box 1, Georgetown, TX 78626 Appellate Counsel: John C. Prezas, SBN: 24041722 405 MLK St., Box 1, Georgetown, TX 78626
Ap pellee: John Allen Wachtendorf

Trial Counsel: Ca rissa Beene, SBN: 24071967 215 W. University Ave. Georgetown, TX 78626 Appellate Counsel: Kristen Jernigan, SBN: 90001898 207 S. Austin A v e. Georgetown, TX 78626

### 3 

## TABLE OF CONTENTS Contents IDENTIFICATION OF PARTIES

................................ ................................ ............ 2 TABLE OF CONTENTS

................................ ................................ ........................... 3 INDEX OF AUTHORITIES

................................ ................................ ...................... 5 STATEMENT REGARDING ORAL ARGUMENT

................................ ............... 6 STATEMENT OF THE CASE

................................ ................................ .................. 6 STATEMENT OF PROCEDURAL HISTORY

................................ ........................ 6 GROUNDS FOR REVIEW

................................ ................................ ....................... 7 ARGUMEN T

................................ ................................ ................................ ............. 7 1. The State had No Notice of the Signing of the Order Granting the Motion to Suppress.

................................ ................................ ................................ ............ 7 2. This Court’s Existing Precedent Allows Appeal Only from the Signed Order of which the State Lacked Notice.

................................ ............................... 8 3. The 3 rd 

### Court of Appeals Misinterpreted Existing Precedent and This Court Should Revise Such Precedent to Clearly Require that the State Have Notice of an Appealable Order to Begin its Timeframe for Filing Notice of Appeal.

.......... 9
a. The Precedent Relied Upon by the 3 rd 

### Court of App eals is Distinguishable.

................................ ................................ ................................ .. 9 b. The Very Worry the Presiding Judge Expressed in the Sutton Case has Come to Pass Here and This Co urt Should Rectify the Unfairness it Creates. 11
c. The Issue of the State’s Knowledge of an Appealable Order is an Important Question of Texas Law Decided by the 3 rd 

### Court of Appeals with Broad Impact on All Future State’s Appeals. This Court Should Clearly Settle this Issue to Provide Guidance to State A ppellate Attorneys and the Courts of Appeal.

................................ ................................ ............................. 12 PRAYER

................................ ................................ ................................ .................. 13

### 4

CERTIFICATE OF SERVICE

................................ ................................ ................ 14 CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 14 APPENDIX

................................ ................................ ................................ .............. 15

### 5 

## INDEX OF AUTHORITIES

C ASES 

### Rodarte v. State , 860 S.W.2d 108, 109 (Tex. Crim. App. 1993)

............................... 6 State ex rel Sutton v. Bage , 822 S.W.2d 55 (Tex. Crim. App. 1992)

.................... 7, 9 State v. Martinez , No. 04

- 14

- 00359

- CR, 2014 Tex. App. LEXIS 7138, at *2

- 3 (Tex. App.

— San Antonio July 2, 2014, no pet.) (mem. op., not designated for publication)

................................ ................................ ................................ ............ 8 State v. Poe , 900 S.W.2d 4 42, 444 (Tex. App.

— Amarillo 1995)

............................. 9 State v. Rico , No. 07

- 07

- 0092

- CR, 2007 Tex. App. LEXIS 4849, at *3 (Tex. App.

— Amarillo June 21, 2007, order) (not designated for publication)

.............. 8 State v. Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991)

................................ . 6 State v. Sanavongxay , 407 S.W.3d 252 (Tex. Crim. App. 2012)

.......................... 6, 8 State v. Wachtendorf

, 2015 Tex. App. LEXIS 1796 No. 03

- 14

- 00633

- CR (Tex. App.

— Austin, delivered February 26, 2015)

................................ .................... 4, 7

### 6



## STATEMENT REGARDING ORAL ARGUMENT Because this petition involves a request to revisit and clarify existing precedent, oral argument will prove helpful primarily in addressing the policy and practical concerns behind this request.



## STATEMENT OF THE CASE Appellee was indicted for Driving While Intoxicated 3 rd 

### or More. He filed a Motion to Suppress Evidence, which the trial court granted outside the State’s presence and without its knowledge . The State appealed within five days of becoming aware, in open court, of the trial court’ s order. Appellee filed a motion to dismiss the St ate’s appeal, to which the State responded. The 3 rd 

### Court of Appeals granted Appellee’s motion and dismissed the State’s appeal. This Petition challenges that dismissal.



## STATEMENT OF PROCEDURAL HISTORY On February 26, 2015, the court of appeals dismisse d the State’s appeal for want of jurisdiction. State v. Wachtendorf , 2015 Tex. App. LEXIS 1796 No . 03

- 14

- 00633

- CR (Tex. App.

— Austin, delivered February 26, 2015) . Given the nature and basis of that decision, the State did not file a motion for rehearing.

### 7 

## GROUND S FOR REVIEW
This Court should revisit the existing precedent that the 3 rd 

### Court of A ppeals misinterpreted , to clarify for the various courts of appeal , and to avoid a manifest unfairness in future State’ s appeals, that the strict timeline for the State ’s notice of appeal is predicated upon and requires that the State has adequate notice of the existence of a signed appealable order.


## ARGUMENT
1. The State h ad No Notice of the Signing of the Order Granting the Motion to Suppress . The trial court held its initial hearing an Appellee’s motion to suppress on February 14, 2014, and made an oral ruling in open court granting the motion on July 7, 2014. R.R. vol. 3 p. 5. The State immediately announced its desire to appeal the trial cou rt’s decision. R.R. vol. 3 p. 5. The State then filed a motion asking the trial court to reconsider its decision . T he trial court held a hearing on that motion on September 25, 2014 and received additional evidence. R.R. vol. 4.
At the September hearin g the S tate learned for the first time that the tr ial court had signed a written o rder dated July 7, 2014, that was not file stamped. R.R. vol. 4 p. 64

- 67. The record is clear that the State had no prior notice of the existence of a signed order. R.R. vo l. 4 p. 66

- 67. The State filed its notice of

### 8

appeal five days after it learned of the order, on September 30, 2014. C.R. p. 48

- 49.

2. This Court’s Existing Pre cedent Allows Appeal Only from the Signed Order of which the State Lacked Notice . This Court has held that the timeframe for filing a State’s notice of appeal begins on the day the trial court signs the appealable order. State v. Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991)

. See also Rodarte v. State , 860 S.W.2d 108, 109 (Tex. Crim. App. 1993) (distinguishing this requirement for a State’s notice of appeal from the general proposition that an oral ruling prevails over a written order in the context of addressing a defendant’ s right to appeal); State v. Sanavong xay , 407 S.W.3d 252 (Tex. Crim. App. 201 2) (State cannot appeal an oral ruling granting a motion to suppress). Thus, the State had no ability to appeal from the trial court’s oral pronouncement that it intended to grant to the motion to suppress.

### 9

3. T he 3 rd 

### Court of Appeals Misinterpreted Existing Precedent and This Court Should Revise Such Precedent to Clearly Requ ire that the State Have Notice of an Appealable Order to Begin its Timeframe for Filing Notice of Appeal.

a. The Precedent Relied Upon by the 3 rd 

### Court of Appeals is Distinguishable. Despite stating, “we recognize the limitations imposed by the Court of Crimi nal Appeals’ construction,” the 3 rd 

### Court of Appeals felt that this Court’s precedent bound them to di s miss the State’s appeal. State v. Wachtendorf , 2015 Tex. App. LEXIS 1796 No. 03

- 14

- 00633

- CR, (Tex. App.

— Austin, delivered February 27, 2015)(not designat ed for publication)

. First, t he 3 rd 

### Court cited State ex rel Sutton v. Bage , 822 S.W.2d 55 (Tex. Crim. App. 1992) , where the State’s notice of appeal was held untimely when a clerk did not file an appealable order until four days after the trial judge signed it and the State filed their notice of appeal late because it based its filing date on the date the order was filed by the clerk rather than the date it was actually signed. However, this Court decided Sutton in the context of a Writ of Mandamus, a “drastic remedy” requiring “a clear right to relief sought,” such that the relator is “seeking to compel a ministeria l duty.” Id at 57 . Certainly, whether to grant that kind of relief is a rather different question than whether the State is entitled to

### 10

relief when the actions or inaction of a co urt or a clerk work, however inadvertently, to deny the State its statutory ability to appeal simply by denying notice of the entry of a written order

. The 3 rd 

### Court also cited State v. Martinez , No. 04

- 14

- 00359

- CR, 2014 Tex. App. LEXIS 7138, at *2

- 3 (Tex. App.

— San Antonio July 2, 2014, no pet.) (mem. op., not designated for publication) and State v. Rico , No. 07

- 07

- 0092

- CR, 2007 Tex. App. LEXIS 4849, at *3 (Tex. App.

— Amarillo June 21, 2007, order) (not designated for publication) as dismissals where State’s notice of appeal was untimely. However, neither of these cases involve d a situation where the court failed to giv e any notice or indication that it had signed an appealable order.
Finally, the 3 rd 

### Court cited State v. Sanavongxay , 407 S.W.3d 252 , 258

- 259 (Tex. Crim. App. 2012) . In Sanavongxay this Court confronted a situation where the trial court had signed no orders at all and held that precedent required a written order for the State to have the ability to appeal. This Court explicitly did not address claims by the State that a court could effectively deny the State its right to appeal simply by refusing to enter a written order. Id at 257

.

### 11

b. The Very Worry the Presiding Judge Expressed in the Sutton Case has Come to Pass Here and This Court Should Rectify the Unfairness it Creates . Presidin g Judge McCormick’s dissent in Sutton succinctly describes the very problem at issue here, addressed only indirectly in previous precedent , saying,

“ when the law imposes a time limitation upon a party, it should concomitantly provide some notice to that pa rty . . . Clearly, a party may be denied a right to appeal in any case where a judge, without notice to the party, signs an appealable order which does not get filed (entered) of record within the time required for notice of appeal. ” State ex rel Sutton v. Bage , 822 S.W.2d at 58

. The Court of Appeals in Amarillo, cited this dissent, in finding a State’s notice of appeal timely where the court directed its ruling to become entered and final after singing, State v. Poe , 900 S.W.2d 442, 444 (Tex. App.

— Amarillo 1995)

. In so doing, the Amarillo Cou rt said, “Indeed, any other result would be tantamount to allowing a trial court to implicitly and lawfully deny the State its statutory right to appeal specific criminal matter by signing yet withholding the order until the appellate period lapsed. A court’s inherent power should not extend so far. ” Id

. (internal citation omitted).

### 12

While the Amarillo Court of Appeals is correct, this Court finally has, via this petition, the facts before it to clearly hold that a court’s inherent power indeed
does n ot extend that far.

c. The Issue of the State’s Knowledge of an Appealable Order is an Important Question of Texas Law Decided by the 3 rd 

### Court of Appeals with Broad Impact on All Future State’s Appeals. This Court Should Clearly Settle this Issue to Provide Guidance to State Appellate Attorneys and the Courts of Appeal. By granting this petition, this Court can provide guidance to all intermediate courts and guidance to all appellate prosecutors seeking to properly preserve and
assert t he State’s ability to appeal an adverse ruling, such as the m otion to suppress evidence here.

While it is reasonable to assume that this Court did not mean by its decision
in Rosenbaum to require the State file its notice of appeal within twenty days of an event it is not awar e has occurred , the 3 rd 

### Court of Appeals, and likely other courts of appeal as well, believe that the holdings this Court has rendered require such a result.
It is a fundamental principle of our criminal procedure that a party must have notice of the eve nt triggering a timeframe within which it must assert its rights or

### 13

seek its remedies. This Court should grant this petition to clearly hold that the State must have notice that an appealable order has been signed before the clock begins to run on the tim e within which it must file its notice of appeal.


## PRAYER Therefore, the State prays that this Court grant this petition and review the
3 rd 

### Court of Appeals opinion dismissing the State’s appeal, reverse or vacate that order, remand this case to the 3 rd 

### Court of Appeals to be heard on the merits, and for any and all other relief to which the State may justly be entitled.
Respectfully submitted,
Jana Duty District Attorney Williamson County, Texas /s/ John C. Prezas John C. Prezas Assistant District At torney State Bar Number 24041722 405 Martin Luther King #1 Georgetown, Texas 78626 (512) 943

- 1248 (512) 943

- 1255 (fax) jprezas@wilco.org

### 14 

## CERTIFICATE OF SERVICE

I hereby certify that on March 13 , 2015, I electronically filed the foregoing document with the clerk of the court for the Texas Court of Criminal Appeals, using the efile.txcourts.gov system. Via that system, a “Notice of Electronic Filing” was sent to Appellee ’s appellate attorney of r ecord, Kristen Jernigan 207 S. Austin Ave., Georgetown, TX 78626 , at kristen@txcrimapp.com and to the State Prosecuting Attorney, P.O. Box 13046, Austin, TX 78711

- 3046, at information@spa.texas.gov

. /s/ John C. Prezas John C. Prezas



## CERTIFICATE OF COMPLIANCE I hereby certi fy that this brief contains 1,407 words, after applicable exclusions, i n compliance with Rule 9.4(i) of the Texas rules of Appellate Procedure.

/s/ John C. Prezas John C. Prezas

### 15 

## APPENDIX
(OPINION FROM 3 RD 

### COURT OF APPEALS)

### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00633- CR

The State of Texas, App ellant

v. John All en Wachtendorf, Jr., Appellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 13- 0197 -K 277, H ONO RAB LE RICK J. K ENNON, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J ohn Allen Wachtendorf

, J r., filed a motion in the district court contending that the
results of a test perf

ormed on a sample of his blood should be suppressed. After Wachtendorf filed
his motion, the di strict court held a hearing to consider the matter. A few months later i n another
hear ing, the district court informed the parties that afte r considering the evidenc e, it conclude d that
there wer e no exigent circ umstances justify ing the war rantless blood draw an d s t at ed that it was “g oing to g rant the motion to suppress the blood draw .” Upon hear ing the district court’s ruling , the
State announce d its int ention to appea l the ruling

.

On t h e s am e day that the district court announce d its ruling , it signe d an order
g ranting the motion to suppress. Over a month afte r the district court made its ruling , the State filed

a motion asking the district court to rec onsider its prior ruling

. When the district court held a hear ing

on the motion, Wachtendorf urg ed that the State had waived its rig ht to appea l becau s e i t d i d nott imely file i ts notice of appea l. As support for this , Wachtendorf contende d that the di strict co u rt

h ad signe d an order g ranting the motion to suppress on the day that it announce d its intent i o n t o
g rant the motion. I n response , the State arg ued that it was unawa re of the order

. During the hear ing,
the district court deter

mined that althoug h it signe d the order on the same day t h at i t an nounced
its ru l i n g, t he order was not filed at that time by the district court cler k. After the oversig ht was discovere d, the previously signe d order was filed by the district court cler k, but by that time, 80 day s had passe d from the date that the order had been signe d. Wit hin a fewday s of the hea ring and the
order being filed, the State filed its notice of appea l.
After the State fi led its appea l, Wachtendorf filed a motion to dismiss contending
that this Court does not have jurisdiction over this appea l beca use the appea l is untimely

. The Code
of Criminal Procedur e sets out a deadline by which the State may appea l a trial court’s order g ranting

a motion to suppress. Tex. Code Crim. Proc. art. 44.01(a) (5), (d). I n particula r, the Code explains
that the State may not “make an appea l

. . . later than the 20th day afte r the date on which the order

. . . is entere d by the court .” Id. (empha sis added)

. I n light of this deadline, Wachtendorf insists that
the State’s ap p ea l i s u ntimely beca use it was not filed within 20 day s of the district court signing
the order g ranting t h e motion to suppress. On the other hand, the State contends that “it is
fundame ntally unfair” to de ny the State “its rig ht to appea l w hen it ha d no notice of a signe d order
from which it could appea l.” When prese nting this arg ument, the State also arg ues that the alleg ed
unfairne ss is further compound ed b y t h e fact that the State cannot appea l oral ruling s g ranting a motion to suppress and, there fore , has t o wait unt il it lear ns that t h e trial court has, in fac t, signe d
the order

. See State v. Sanavongxay , 407 S.W .3d 252, 258 (Tex. Crim. App. 2012) (explaining that althoug h State may

appea l cer

tain order s by

trial courts, “ [a] n oral ruling is not ‘an orde r’” ).
2When deciding what the phrase “ente red by the court” means under article 44.01(d),

the court of criminal appea ls deter mined that the phrase means “the signing of an order by the trial ju d g e
. ” S ta te v
. R o s e n b a u m , 8 1 8 S. W. 2 d 3 9 8 , 4 0 2 ( T e x. Cr im

. A p p
. 1 9 9 1 )

. I

n o th e r w o r d s , th e c o u

r t deter mined that “the a

ppellate timetable f

or the State unde r Art. 44.01( d) begins running from the
d a te th e tr ia l ju d g e s ig

n s h is o r h e r o r d e r
. ” I

d

. a t 4 0 3 ; s e e a ls o id

. a t 4 0 2 ( e xp la in in g th a

t “ [e ]s ta b li s h in g

a definite starting date for calc ulating appellate timetables serve s the interests of all parties” ). Although a majority of the court joined that result, a concur ring opinion expressed the b el i ef that
the more appropr iate construction of article 44.01(d) starts the running of the appellate deadline
on “the da te the signe d order is f ile marke d by the cler

k.” Id. at 405 (McCormick, J., concurr ing)

. A few months later, the court rea ffirme d t h e majority ’s position. See State ex rel.
Sutton v. Bage , 822 S.W .2d 55, 56-57 (Tex. Crim. App. 1992) (interpr eting phrase “ente red by the
court” as mea

ning sig ning of

order by trial judg e and concluding that State’s not ice of appea l was
not timely

). Acc ompany ing the majority opinion was a dissenting opinion criticizing the majority ’s holding and the rea soning from Rosenbaum

. See id. at 57 (McCormick, J ., dissenting) (explaining
that “ca se prese nts in drama tic fashion the m i s ch i ef that is potential in this Court’s holding in”
Rosenbaum ). When c riticizi ng the majority ’s rea soning, the dissenting justice expressed that, like
in the prese nt case , the State did not lear n that the order had been s i gn ed u n t i l afte r the appellate
d e a d li n e h a d r

u n
. I d

. a t 5 8

. A c c o r d in g ly , th e d is s e n ti n g ju s ti c e w a r n e d th a t th e ma jo r it y ’ s c o n s tr u c ti o n will deny a party the “rig ht to appea l in any case wher e a judge , without notice to the party , signs an
appea lable order which does not g et filed (ente red) of rec ord within the time require d for notice of
appea l.” Id. Moreove r, the dissenting justice rea soned that “whe n the law imposes a time limit ation

3upon a party , it should concomitantly provide some notice to that party ” and that “[t] he ‘sig ning’ of
an orde r is not notice.” Id.

Despite the criticisms expressed ag ainst the holding in Rosenbaum , the court has

rec ently sanctioned that holding ag ain. See Sanavongxay , 407 S

. W .3d at 258-59 (explaining that
article 44.01(d) a

uthorizes St ate to appea l order s and that “our prece dent requires t hat an order be
in writing ” and sig ned by trial court) ; see also State v. M artinez , No. 04-14-00359- CR, 2014 Tex. App. L EXI S 7138, at *2-3 (Tex. App.—San Antonio J uly 2, 2014, no pet.) (mem. op., not desig nated for publication) (dismissing S tate’s appeal for want of j uri s d i ct i o n when notice of appeal was not ti me ly ) ; S ta te v
. R ic o , N o
. 0 7

- 0 7

- 0 0 9 2

- CR , 2 0 0 7 T e x. A p p
. L E X I S 4 8 4 9 , a

t * 3 ( T e x. A

p p
. — A ma r il lo
J une 21, 2007, order ) (not desig nated for publication) (explaining th a t d e a d li n e u

n d e r a rticle 44.01(d)
is more than proce dural one and is instead substantive limit on State’s authority to appea l, meaning that day afte r dea dline has passe d, State’s ability to appea l “ce ases a

nd may not be re vived”)

. I n light of the g overning case law and g iven that the State’s notice of appea l was not filed within 20 day s of the district c ourt signing its order g ranting the motion to suppress, we must conclude that the State’s appea l was not time l y fi l ed

. See Tex. Code Crim. Proc. art. 44.01(d);
Rosenbaum , 818 S. W

. 2 d at 4 0 2

. Although we rec og nize the limit ations imposed by the court of criminal appe als’ construc tion, we ar e nonethe less bound by that controlling prec edent.
For these rea sons , we g rant Wachtendorf ’s motion and dismiss the State’s appea l
for want of

jurisdiction. See Olivo v. State , 918 S.W .2d 519, 522 (Tex. Crim. App. 1996) (providing that “[a] ti mely

notice of a

ppeal is nec essar

y to invoke a cour

t of appe als’ jurisdiction”).

4David Pury ear , J ustice

Be fore J ustices Pury ear , Pemberton, and B ourland
Dismissed for Want of J urisdiction
Filed: F ebrua

ry 26, 2015 Do Not Publish

5