No. 02-14-00175-CR

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

THE STATE OF TEXAS, Appellant

v.

ZACHARY PALMER, Appellee

Appeal from Wise County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

LISA C. McMINN

State Prosecuting Attorney

Bar I.D. No. 13803300

STACEY M. GOLDSTEIN

Assistant State’s Attorney

Bar I.D. No. 24031632

P.O. Box 13046

Austin, Texas 78711

information@spa.texas.gov

512-463-1660 (Telephone)

512-463-5724 (Fax)

PD-0880-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/15/2015 11:03:19 AM

Accepted 7/17/2015 1:04:19 PM

ABEL ACOSTA

CLERK
IDENTITY OF PARTIES, JUDGE, AND COUNSEL

* The parties to the trial court’s judgment are the State of Texas and Appellee,

Zachary Palmer.

* The trial Judge was Hon. John H. Fostel, 271st Judicial District Court.

* Trial counsel for the State was Tim Cole, Assistant District Attorney, 101 North

Trinity, Suite 200, Decatur, Texas 76234.

* Counsel for the State before the Court of Appeals was Patrick D. Berry,

Assistant District Attorney, 101 North Trinity, Suite 200, Decatur, Texas

76234.

* Counsel for the State before the Court of Criminal Appeals is Stacey M.

Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,

Texas 78711.

* Counsel for Appellee at trial and before the Court of Appeals was Barry Green,

101 West Main, Decatur, Texas 76234.

i
TABLE OF CONTENTS

IDENTITY OF PARTIES, JUDGE, AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Did the State’s timely filed notice of appeal signed only by an assistant district

attorney invoke the court of appeals’ jurisdiction when the elected district

attorney’s untimely filed affidavit stated that he authorized the appeal when it

was filed?

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-10

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX A (Opinion of the Court of Appeals)

APPENDIX B (State’s Response to Appellee’s Motion to Dismiss State’s Appeal )

ii
INDEX OF AUTHORITIES

Cases

State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994). . . . . . . . . . . . . . . . . 8 n.14

State v. Blankenship, 146 S.W.3d 218 (Tex. Crim. App. 2004). . . . . . . . . 5, 5 n.9, 6

State v. Boseman, 830 S.W.2d 588 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . 5, 9

Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App 1998). . . . . . . . . . . . . . . . . . 8 n.4

State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007).. . . . . . . . . . . 7-8 n.12

Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App. LEXIS 6460

(Tex. App.—Houston [14th] 2015) (op. on remand) (Frost, J., concurring). . . 7 n.11

State v. Muller, 829 S.W.2d 805 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . 3-4, 6-9

State v. Palmer, __ S.W.3d __, No. 02-14-00175-CR, 2015 Tex. App. LEXIS 6572

(Tex. App.—Fort Worth 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4-5

State v. Redus, 445 S.W.3d 151 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . 10 n.16

State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . 5, 9-10

State v. Shelton, 830 S.W.2d 605 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . 7 n.10

State v. White, 261 S.W.3d 65 (Tex. App.—Austin 2007). . . . . . . . . 5, 5 n.8, 8 n.15

Statutes

TEX. CODE CRIM. PROC. art. 44.01(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

TEX. CODE CRIM. PROC. art. 44.01(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

TEX. CODE CRIM. PROC. art. 44.01(i).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

iii
Secondary Sources

BLACK’S LAW DICTIONARY 74 (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.11

BLACK’S LAW DICTIONARY 1135 (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . 7 n.12

BLACK’S LAW DICTIONARY 1184 (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . 8 n.13

iv
No. 02-14-00175-CR

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

THE STATE OF TEXAS, Appellant

v.

ZACHARY PALMER, Appellee

Appeal from Wise County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State respectfully urges this Court to grant discretionary review.

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

The State filed a notice of appeal from the trial court’s order granting

Appellee’s suppression motion. The notice was not signed by the elected district

1
attorney as required by Texas Code of Criminal Procedure Article 44.01(d), (i). In

response to Appellee’s motion to dismiss for want of jurisdiction, filed after the

appellate timetable expired, the State filed an affidavit from the district attorney,

stating that he had authorized the assistant district attorney to purse the appeal when

it was filed. The court of appeals held that consideration of the untimely affidavit as

proof of authorization was improper because it could not retroactively cure the notice

by amendment or ratification. The court then dismissed the State’s appeal.

STATEMENT OF PROCEDURAL HISTORY

In a published decision, the court of appeals dismissed the State’s appeal for

want of jurisdiction. State v. Palmer, __ S.W.3d __, No. 02-14-00175-CR, 2015 Tex.

App. LEXIS 6572 (Tex. App.—Fort Worth 2015). The State did not file a motion for

rehearing.

GROUND FOR REVIEW

Did the State’s timely filed notice of appeal signed only by an assistant district

attorney invoke the court of appeals’ jurisdiction when the elected district

attorney’s untimely filed affidavit stated that he authorized the appeal when it

was filed?

ARGUMENT

Texas Code of Criminal Procedure Article 44.01(a)(5) provides that the State

is entitled to appeal an order granting a motion to suppress if the “prosecuting attorney

certifies . . . that the appeal is not taken for the purpose of delay and that the evidence

2
. . . is of substantial importance to the case . . . .” “Prosecuting Attorney” means the

district attorney; it does not include an assistant district attorney. TEX. CODE CRIM.

PROC. art. 44.01(i). This requirement was intended to prevent the State from filing

frivolous appeals for purposes of harassment. State v. Muller, 829 S.W.2d 805, 811

n.7 (Tex. Crim. App. 1992).

In this case, the State timely filed a notice of appeal from the trial court’s order

granting Appellee’s motion to suppress. However, it was signed by an assistant

1

district attorney, not the Wise County District Attorney. The State then filed an

2

untimely amended notice of appeal, which was signed by the district attorney.

3

Appellee moved to dismiss, arguing that the timely notice of appeal was

defective because it was not signed and therefore not authorized by the district

attorney. He also claimed that the amended notice was late, in violation of Texas

4

Code of Criminal Procedure 44.01(d), which states that a prosecuting attorney may

not make an appeal under subsection (a) later than 20 days after the order was

See 1 CR 70-71.

1

See 1 CR 70-71.

2

See 1 CR 75-76.

3

Appellee’s Motion to Dismiss State’s Appeal at 1-2. Because these

4

documents were filed in the court of appeals, they are not included in the trial-court

clerk’s record.

3
entered. The State filed a response, claiming that the assistant district attorney filed

5

the timely notice of appeal with the full authorization of the district attorney. In

6

support, the State attached an affidavit from the district attorney stating, in part:

With my full knowledge, authorization and under my direct instruction,

Patrick Berry filed a Notice of Appeal on April 7, 2014, within 20 days

required by Texas Rule of Appellate Procedure, Rule 26.2(b). Mr. Berry

signed said Notice of Appeal with my full consent and under my

instruction to do so on my behalf. I personally authorized Mr. Berry to

sign and file the Notice of Appeal at that time.

. . .

Although I did not personally sign the original Notice of Appeal . . . I did

personally authorize Patrick Berry . . . to sign said Notice on my behalf

and said Notice should be taken as my personal act, authorization, and

certification, of the appeal in the above-mentioned case.

7

After twice denying Appellee’s motion to dismiss, Palmer, 2015 Tex. App.

LEXIS 6572, at * 3, the Fort Worth Court of Appeals dismissed the State’s appeal for

want of jurisdiction, relying primarily on this Court’s decision in State v. Muller. Id.

at *4-12. Following Muller, the Forth Worth Court held that the State’s first notice

was defective and that its untimely amended notice did not cure the defect. Palmer,

2015 Tex. App. LEXIS 6572, at *5. The district attorney’s affidavit, the court stated,

Appellee’s Motion to Dismiss State’s Appeal at 1-2.

5

See Appendix B, State’s Response to Appellee’s Motion to Dismiss State’s

6

Appeal at 1-3.

See Appendix B, State’s Response to Appellee’s Motion to Dismiss State’s

7

Appeal at Attachment A.

4
is no different than the amended notice. Id. Ratification after the filing deadline is

ineffective under State v. Boseman, 830 S.W.2d 588 (Tex. Crim. App. 1992), and

jurisdiction cannot be retroactively obtained under State v. Riewe, 13 S.W.3d 408

(Tex. Crim. App. 2000). Palmer, 2015 Tex. App. LEXIS 6572, at *6. The court also

rejected the State’s reliance on State v. Blankenship, 146 S.W.3d 218 (Tex. Crim.

App. 2004), and State v. White, 261 S.W.3d 65 (Tex. App.—Austin 2007), concluding

that both were distinguishable. Palmer, 2015 Tex. App. LEXIS 6572, at *6-9.

8

The court of appeals’ decision merits review. The particular facts of this case

parallel the second ground for review granted but left unaddressed by this Court in

Blankenship in 2004. In Blakenship, like this case, when the appellee urged the court

9

of appeals to dismiss for lack of jurisdiction, the State filed a response with an

accompanying affidavit from the elected county attorney, which stated that he had

consented to and authorized the appeal within the time for filing the appeal. 146

S.W.3d at 219. Arguing in the alternative to its reliance on a timely and properly

In White, the Austin Court of Appeals relied, in part, on the district attorney’s

8

affidavit, filed after the appellate deadline, that provided the date he had filed the

notice of appeal. 261 S.W.3d at 67.

Instead, this Court relied on the State’s timely signed amended notice when

9

holding that the court of appeals’ jurisdiction had been properly invoked.

Blankenship, 146 S.W.3d at 220. Even though the notice was signed by an

assistant county attorney, it included a “written express personal authorization by

the County Attorney of this specific notice of appeal in this particular case.” Id.

5
signed amended notice, the State submitted the following ground for review: “The

Court of Appeals erred in holding, in effect, that the State’s notice of appeal requires

the personal signature of the ‘prosecuting attorney.’” Id. at 219 n.3. This Court

should decide whether a State’s notice of appeal that is signed by an assistant district

attorney deprives an appellate court of jurisdiction when the district attorney later

explains in an affidavit, filed after the appellate timetable expired, that he had

authorized the “making of the appeal” when it was filed. There is no precedent from

this Court addressing this situation, and the Forth Worth Court’s application of related

precedent is incorrect.

In Muller, the first assistant district attorney signed the notice of appeal. 829

S.W.2d at 806. Over eight months later, the court of appeals granted the State leave

to file an amended notice of appeal signed by the district attorney. Id. at 806-07. The

court of appeals held that the amended notice cured any defect in the original notice.

Id. at 807.

This Court reversed, holding that Article 44.01(d) plainly states that only the

“prosecuting attorney” may “make an appeal” under subsection (a). Id. at 810.

“Make an appeal” requires the prosecuting attorney “to personally supervise and

authorize the appeals to be undertaken by his office on behalf of the State.” Id. Thus,

“to comply with the statute, he must either physically sign the notice of appeal or

6
personally instruct and authorize a subordinate to sign the specific notice of appeal in

question.” Id. A statement that the appeal is taken “‘by and through the prosecuting

attorney’” is insufficient to prove that the prosecuting attorney has “performed the

safeguard function.” Id. at 811. And the authorization must occur before the time

10

for filing the notice expires. Id. at 810. This Court then held that the State’s first

notice of appeal was defective because the elected district attorney did not authorize

it within the time required. Id. at 811. Considering the late amended notice, this

Court determined that, because Article 44.01(d) limits the State’s substantive right to

appeal, it could not be cured by correction or amendment. Id. at 812-13. Therefore,

the court of appeals had no jurisdiction to consider the State’s appeal. Id. at 813.

Contrary to the Fort Worth Court of Appeals, correction or cure via

amendment, ratification, and retroactivity are inapplicable principles. All pertain

11 12 13

Nor is a district attorney’s signature stamp, coupled with the “live” signature

10

of an assistant district attorney, adequate. State v. Shelton, 830 S.W.2d 605, 606

(Tex. Crim. App. 1992).

“Amendment” means “[t]o change or modify for the better. To alter by

11

modification, deletion, or addition.” BLACK’S LAW DICTIONARY 74 (5th ed. 1979).

One appellate court justice has observed that an amended document replaces the

original. Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App.

LEXIS 6460 (Tex. App.—Houston [14th] 2015) (op. on remand) (Frost, J.,

concurring).

“Ratify” means “[t]o approve and sanction; to make valid; to confirm; to give

12

sanction to.” BLACK’S LAW DICTIONARY 1135 (5th ed. 1979). This Court has

recognized that ratification involves reaffirming an interpretation at a point later in

7
to subsequent, post-notice effective action. But such action is not at issue here. The

notice of appeal was proper at the time it was filed because the district attorney’s

authorization for filing was operative at that time. Therefore, no subsequent action

was needed. The affidavit merely memorialized the prior, timely authorization. The

14

circumstances here are in accord with the dictates of Muller. Muller indicated that

there is no requirement that the authorization appear on the face of the notice, just that

the appellate record clearly reflect its existence.

15

Whenever a question is legitimately raised concerning the prosecuting

attorneys personal authorization of a State’s appeal, the State bears the

burden of proving that the appeal in question was personally, expressly

and specifically authorized by the prosecuting attorney. Thus, the

appellate record must clearly reflect the prosecuting attorney’s personal

authorization of the specific notice of appeal filed in a given case.

Without a signature or other written expressed authorization, as reflected

in the appellate record, there would be no guarantee that the only person

permitted by statute to make an appeal on behalf of the State actually

time. See State v. Colyandro, 233 S.W.3d 870, 878-85 (Tex. Crim. App. 2007).

“Retroactive” means “[r]etrospective,” which means “[l]ooking backwards;

13

contemplating what is past; having reference to a state of things existing before the

act in question.” BLACK’S LAW DICTIONARY 1184 (5th ed. 1979).

See, e.g., Coffey v. State, 979 S.W.2d 326, 328-29 (Tex. Crim. App 1998)

14

(written judgment is intended to be a memorialization of oral pronouncement of

sentence); State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (“A

judgment nunc pro tunc . . . literally means ‘now for then’ . . . .”).

See also White, 261 S.W.3d at 68 (“neither the statute nor any opinion of

15

which we are aware establishes a time limit for the State to prove that the

prosecuting attorney did in fact properly authorize the appeal.”).

8
participated in the process. Evidence of a general delegation of authority

to an assistant does not qualify under the statute.

Muller, 829 S.W.2d at 810 n.6.

The existence of the Wise County District Attorney’s authorization was

established by affidavit. And because the notice of appeal was authorized, it was

made by the district attorney and thus invoked the court of appeals’ jurisdiction at that

time.

Boseman is inapposite because the county attorney had not authorized the

assistant country attorney to act on his behalf or appeal when the notice was filed.

There, the county attorney filed an untimely affidavit in response to Boseman’s

motion to dismiss, purporting to deputize the assistant county attorney to prosecute

the appeal and stating that he ratified and approved of the notice of appeal. 830

S.W.3d at 589. This Court held that the State lost its right to appeal when the

“window of opportunity closed without the county attorney’s personal and express

authorization of this specific notice of appeal.” Id. at 591.

Riewe is also not on point. In that case, the State failed to certify in its notice

that the appeal was not for delay and that the evidence was of substantial importance

9
to the case. 13 S.W.3d at 409. After filing its brief, the State amended its notice

16

with the certifications. Id. This Court held that amended notice could not

retroactively invoke the court of appeals’ jurisdiction. Id. at 412. In this case, unlike

the absent certifications, the authorization here did in fact exist at the time the notice

was filed.

Nothing in this Court’s precedent requires that the existence of the district

attorney’s authorization to appeal appear on the notice itself. The district attorney’s

sworn statement that he authorized the assistant district attorney to perfect an appeal

in this case proves compliance with Article 44.01 at the time the notice was filed.

The court of appeals erred to dismiss for want of jurisdiction.

Last year in State v. Redus, the Court unanimously reaffirmed its decision in

16

Riewe that the State’s notice must contain the certification statements to invoke the

appellate court’s jurisdiction. 445 S.W.3d 151, 156 (Tex. Crim. App. 2014). The

Court went on to hold that the district attorney’s citation to the statute requiring the

certification does not satisfy the substantive voucher requirements for the

certification statements. Id. at 157.

10
PRAYER

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review and reverse the decision of the court of

appeals dismissing the State’s appeal.

Respectfully submitted,

LISA C. McMINN

State Prosecuting Attorney

Bar I.D. No.13803300

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

Bar I.D. No. 24031632

P.O. Box 13046

Austin, Texas 78711

information@spa.texas.gov

512-463-1660 (Telephone)

512-463-5724 (Fax)

11
CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this

document contains 2,112 words, exclusive of the items excepted by TEX. R. APP. P.

9.4(i)(1).

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

12
CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on July 15, 2015, via certified electronic service provider to:

Hon. Patrick D. Berry

101 North Trinity

Suite 200

Decatur, Texas 76234

patrick.berry@co.wise.tx.us

Hon. Barry Green

101 West Main

Decatur, Texas 76234

barry@barrysgreen.com

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

13
APPENDIX A
THE STATE OF TEXAS, STATE v. ZACHARY PALMER,

APPELLEE

NO. 02-14-00175-CR

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT

WORTH

2015 Tex. App. LEXIS 6572

June 25, 2015, Delivered 

June 25, 2015, Opinion Filed

NOTICE: PUBLISH

PRIOR HISTORY: [*1] FROM THE

271ST DISTRICT COURT OF WISE

COUNTY. TRIAL COURT NO. CR17314.

TRIAL COURT JUDGE: HON. JOHN H.

FOSTEL.

COUNSEL: FOR STATE: GREG PRESTON

LOWERY, DISTRICT ATTORNEY FOR

WISE COUNTY, DECATUR, TEXAS.

FOR APPELLEE: BARRY GREEN, SMITH

& GREEN, P.C., DECATUR, TEXAS.

JUDGES: PANEL: LIVINGSTON, C.J.;

GARDNER and WALKER, JJ.

OPINION BY: ANNE GARDNER

OPINION

The State is attempting to appeal the trial

court's order granting Zachary Palmer's motion

to suppress. In one cross-point, Palmer asserts

this court lacks jurisdiction over the State's

appeal. We agree, sustain Palmer's cross-point,

and dismiss the State's appeal for want of

jurisdiction.

The Jurisdictional Statute

Article 44.01(a)(5) of the Texas Code of

Criminal Procedure authorizes the State to

appeal the granting of a motion to suppress

evidence. Tex. Code Crim. Proc. Ann. art.

44.01(a)(5) (West Supp. 2014). "The

prosecuting attorney may not make an appeal

under . . . this article 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). "In this article,

'prosecuting attorney' means the county

attorney, district attorney, or criminal district

attorney who has the primary responsibility of

prosecuting cases in the court hearing the case

and does not include an assistant prosecuting

attorney." Id. art. 44.01(i).

Background [*2] 

The trial court signed the order granting

Palmer's motion to suppress on April 1, 2014.

The State, therefore, had until April 21, 2014,

to perfect its appeal. Id. art. 44.01(d).

The State filed a notice of appeal on April

7, 2014. This document stated that it was

brought "by and through the Assistant District

District [sic] Attorney," and the "undersigned
prosecuting attorney" is identified as the

assistant district attorney. The assistant district

attorney signed the notice of appeal. The

district attorney's name does not appear

anywhere on the document. The April 21, 2014

deadline to perfect the appeal thereafter expired

without the State filing any additional

documents.

Two weeks after the expiration of the

deadline, on May 5, 2014, the State filed an

amended notice of appeal. This document was

brought "by and through the District Attorney,"

and the "undersigned prosecuting attorney" is

identified as the district attorney. The district

attorney signed the amended notice of appeal.

Thereafter, in our court, Palmer filed a

motion to dismiss on May 13, 2014. Palmer

argued that the April 7, 2014 notice of appeal

was defective because it was signed and

authorized not by the district attorney but only

[*3] by an assistant district attorney in

violation of article 44.01(i) and that the May 5,

2014 amended notice of appeal was late and in

violation of article 44.01(d). The State filed a

response on May 13, 2014, as well, and, along

with it, an affidavit by the district attorney in

which he stated he authorized the assistant

district attorney to file the original notice of

appeal on April 7, 2014. In a per curiam order,

we denied the motion to dismiss on May 14,

2014.

Undaunted, Palmer filed a motion for

rehearing on May 16, 2014. He argued the May

13, 2014 affidavit did not cure the

jurisdictional defect. The State filed a response

on May 20, 2014, and on May 28, 2014, in

another per curiam order, we granted the

motion for rehearing but again denied Palmer's

motion to dismiss.

Discussion

In Palmer's brief, he raises one cross-point

in which he again assails this court's

jurisdiction. He contends that the assistant

district attorney's April 7, 2014 notice of appeal

was ineffective under article 44.01(i) and that

the district attorney's attempts to perfect the

appeal after the expiration of the twenty-day

deadline were ineffective under article

44.01(d).

The State did not file a brief responding to

Palmer's cross-point. However, we have the

benefit of the [*4] State's responses to Palmer's

motion to dismiss and to Palmer's motion for

rehearing. In both of the State's responses, it

stated correctly that the prosecuting attorney, as

defined in article 44.01(i) of the Texas Code of

Criminal Procedure, had to physically sign the

notice of appeal or personally instruct and

authorize a subordinate to sign the specific

notice of appeal in question. See State v.

Muller, 829 S.W.2d 805, 810 (Tex. Crim. App.

1992). The State then asserted, "While the

instruction and authorization must occur prior

to the expiration of the filing deadline, case law

demonstrates that proof of the authorization,

[sic] may come in the form of a subsequently

filed affidavit to prove the appellate court was

empowered with jurisdiction by the original

Notice of Appeal." The State then cited two

cases: State v. White, 261 S.W.3d 65, 67-68

(Tex. App.--Austin 2007, no pet.), and State v.

Blankenship, 146 S.W.3d 218, 219 (Tex. Crim.

App. 2004).

Upon further review, we hold that the April

7, 2014 notice of appeal signed by the assistant

district attorney is defective. In Muller, the

Texas Court of Criminal Appeals wrote:

Because it would have been

difficult for the Legislature to have

more clearly excluded assistant

prosecutors from its definition of

'prosecuting attorney,' we interpret

section (i) to mean what it plainly

states on its face: a 'prosecuting

attorney,' as used in Article 44.01,

does not include under any

circumstance an assistant [*5]

prosecutor or other subordinate.

Muller, 829 S.W.2d at 809. The April 7, 2014

notice of appeal was defective and, therefore,

ineffective to perfect the appeal because there

is nothing showing the district attorney

authorized making the appeal. Id. at 812.
We further hold that the May 5, 2014

amended notice of appeal was similarly

ineffective for two reasons. First, the State filed

it after the expiration of the twenty-day

deadline. See Tex. Code Crim. Proc. Ann. art.

44.01(d). Second, noncompliance is not

susceptible to correction through application of

the amendment-and-cure provisions of the

Texas Rules of Appellate Procedure. Muller,

829 S.W.2d at 812.

This leaves the State with the district

attorney's affidavit, filed in this court on May

13, 2014, in which he states he authorized the

assistant district attorney to file the original

notice of appeal on April 7, 2014. For the

reasons given below, we hold it is ineffective to

perfect the appeal.

Substantively, we see no difference

between the district attorney's affidavit and the

amended notice of appeal filed in Muller after

the expiration of the deadline. See Muller, 829

S.W.2d at 812-13. As noted earlier,

noncompliance is not susceptible to correction

through application of the amendment-and-cure

provisions of the Texas Rules of Appellate

Procedure. Id. at 812. Ratification [*6] by the

prosecuting attorney after the expiration of the

deadline is ineffective. State v. Boseman, 830

S.W.2d 588, 589-90 (Tex. Crim. App. 1992).

"[T]he State lost the opportunity to appeal

when the fifteen[-]day window of opportunity

closed without the county attorney's personal

and express authorization of this specific notice

of appeal." Id. at 590. Jurisdiction cannot be 1

retroactively obtained. State v. Riewe, 13

S.W.3d 408, 412 (Tex. Crim. App. 2000). Once 2

jurisdiction is lost, the courts of appeals lack

the power to invoke any rule to thereafter

obtain jurisdiction. Id. at 413.

1 The statute was amended in 2007 to

extend the deadline from fifteen days to

twenty days. Act of May 28, 2007, 80th

Leg., R.S., ch. 1038, § 2, 2007 Tex. Gen.

Laws 3592 (amended 2007) (current

version at Tex. Code Crim. Proc. Ann.

art. 44.01(d)).

2 The Texas Court of Appeals later

stated that the portion of Riewe that

asserted a defendant could not use rule

25.2(d) of the Texas Rules of Appellate

Procedure to cure a jurisdictional defect

in a notice of appeal was dicta and

declined to rely on it. See Bayless v.

State, 91 S.W.3d 801, 805 n.8 (Tex. Crim.

App. 2002).

Regarding the two cases the State relied on

in its responses, White and Blankenship, we

hold that they are distinguishable. We address

Blankenship first.

In Blankenship, the State timely filed the

original notice of appeal and its amended

notice of appeal on the same date. State v.

Blankenship, 123 S.W.3d 99, 104 n.5 (Tex.

App.--Austin 2003), rev'd, 146 S.W.3d 218

(Tex. Crim. App. 2004). The court of appeals

did not question the timeliness of the original

[*7] and amended notices of appeal. Id. at 105.

The original notice of appeal was signed by an

assistant city attorney and made no mention of

the county attorney. Id. at 104 n.5. The

amended notice of appeal, although still signed

by the assistant city attorney, added one

paragraph stating that the notice of appeal was

with the consent of the county attorney. Id. at

105. After the expiration of the deadline, the

State filed affidavits in which it asserted both

the city and the county attorneys had

authorized the appeal within the deadline. Id. at

106. The Austin Court of Appeals held that

both the recitation in the timely-filed amended

notice of appeal (that the appeal was with the

consent of the county attorney) and the

untimely-filed affidavits were ineffective and

dismissed the appeal. Id. at 105-06.

In contrast, the Texas Court of Criminal

Appeals, relying strictly on the recitation of the

county attorney's consent in the timely-filed

amended notice of appeal, held the amended

notice of appeal complied with article 44.01(d)

and reversed the court of appeals. Blankenship,

146 S.W.3d at 220. The Texas Court of

Criminal Appeals did not rely on the untimelyfiled affidavits. Id. The State's reliance on

Blankenship for that proposition is, therefore,

misplaced.
Moving on to [*8] White, in that case,

when determining the timeliness of the filing,

the court of appeals relied on an affidavit by a

clerk to show the district clerk's office was

closed for two days due to inclement weather.

State v. White, 248 S.W.3d 310, 312 (Tex. App.-

-Austin 2007, no pet.). The court noted rule

4.1(b) of the Texas Rules of Appellate

Procedure expressly authorized the use of

affidavits when determining the timeliness of

filings. Id. (citing Tex. R. App. P. 4.1(b)). As

shown in a subsequent opinion by the court in

the same case, the court drew a distinction

between the making of an appeal under article

44.01(d) and the filing of the notice of appeal.

The deadline for filing the notice of appeal

in White was January 15, 2007, but due to a

holiday and two days of inclement weather, the

deadline for filing was extended until January

18, 2007, by virtue of rule 4.1 of the Texas

Rules of Appellate Procedure, and the State

thus successfully filed its notice of appeal

timely on January 18, 2007. White, 261 S.W.3d

at 66. The problem, however, was not the

timeliness of the filing of the notice of appeal

but the timeliness of the making of the appeal

under article 44.01(d).

The district attorney signed the notice of

appeal but did not date his signature. Id. at 67.

Although rule 4.1 extended the time to file the

notice of appeal, the court held that rule 4.1 did

not extend the time during which the

prosecuting attorney had to make the appeal

under article 44.01(d); consequently, [*9] the

court of appeals abated the appeal and

remanded the matter to the trial court to

determine whether the district attorney had

signed the notice of appeal, that is, made the

appeal as contemplated under article 44.01(d),

by January 15, 2007. Id. "The district attorney

filed an affidavit in the district court stating

that he signed the State's notice of appeal on

January 10, 2007, and after a brief hearing, the

district court so found." Id. The Austin Court of

Appeals asserted jurisdiction and went on to

affirm the trial court's order on the merits

dismissing the State's indictment. State v.

White, No. 03-07-00041-CR, 2008 Tex. App.

LEXIS 9492, 2008 WL 5264735, at *1 (Tex.

App.--Austin Dec. 18, 2008), rev'd, 306 S.W.3d

753 (Tex. Crim. App. 2010).

When the case went up to the Texas Court

of Criminal Appeals, that court never

questioned jurisdiction. State v. White, 306

S.W.3d 753, 754-60 (Tex. Crim. App. 2010).

Courts may sua sponte address jurisdictional

issues because subject matter jurisdiction

cannot be conferred by agreement of the

parties. State v. Roberts, 940 S.W.2d 655, 657

(Tex. Crim. App. 1996), overruled on other

grounds by State v. Medrano, 67 S.W.3d 892,

894 (Tex. Crim. App. 2002) (overruling

requirement that defendant must allege

evidence was illegally obtained before the State

could take an appeal under article 44.01(a)(5)

contesting the granting of a motion to

suppress). Consequently, if the Austin Court of

Appeals had incorrectly asserted jurisdiction,

we would expect the Texas Court of Criminal

[*10] Appeals to have addressed that issue.

We conclude, therefore, that, at least under

some circumstances, the State may use an

affidavit filed after the deadline to prove its

assertion that it properly made the appeal in

compliance with article 44.01(d).

We nevertheless hold White is

distinguishable. First, the court in White

expressly stated that the State's notice of appeal

was not defective on its face because neither

article 44.01 nor earlier case law required the

prosecuting attorney to indicate the date on

which he signed the notice of appeal. White,

261 S.W.3d at 67. In contrast, the notice of

appeal in the present case is defective on its

face because it is signed by an assistant district

attorney and makes no reference to the

prosecuting attorney having authorized the

appeal. See Muller, 829 S.W.2d at 812. A

defective notice of appeal is "not susceptible to

correction through application of the

'amendment and cure' provisions of the Texas

Rules of Appellate Procedure." See id. Article

44.01 itself provides no "amendment and cure"

provision. Tex. Code Crim. Proc. art. 44.01.

Second, in Muller, the Texas Court of

Criminal Appeals wrote:
Whenever a question is

legitimately raised concerning the

prosecuting attorney's personal

authorization of a State's appeal,

the State bears the burden of

proving that [*11] the appeal in

question was personally, expressly

and specifically authorized by the

prosecuting attorney. Thus, the

appellate record must clearly

reflect the prosecuting attorney's

personal authorization of the

specific notice of appeal filed in a

given case. Without a signature or

o t h e r w ri t t e n e x p r e ss e d

authorization, as reflected in the

appellate record, there would be no

guarantee that the only person

permitted by statute to make an

appeal on behalf of the State

actually participated in the process.

Evidence of a general delegation

of authority to an assistant does not

qualify under the statute.

Muller, 829 S.W.2d at 810 n.6. In White the

district attorney signed the notice of appeal,

and the State filed the notice of appeal timely.

White, 261 S.W.3d at 66-67. The ambiguity--

the "legitimately raised" concern--was whether

the district attorney made the appeal within the

article 44.01(d) deadline, which, unlike the

filing requirements, could not be extended.

White had a "legitimately raised" concern that

could be clarified with an affidavit after the

expiration of the article 44.01(d) deadline. In

the present case, there is no "legitimately

raised" concern in the April 7, 2014 notice of

appeal. It is defective on its face. See Muller,

829 S.W.2d at 812. Nothing in that document

hints in the least [*12] that the district attorney

authorized this specific appeal. If there is no

compliance within the twenty-day window, the

window is thereafter closed. See Boseman, 830

S.W.2d at 590-91; Muller, 829 S.W.2d at 813.

At the expiration of the twenty-day deadline,

the State had only a defective notice of appeal

on file, which perfected nothing. See State v.

Shelton, 830 S.W.2d 605, 606 (Tex. Crim. App.

1992) (holding signature stamp of county

attorney authorizing the appeal was ineffective

to vest court of appeals with jurisdiction).

Conclusion

We sustain Palmer's cross-point and

dismiss the State's appeal for want of

jurisdiction.

/s/ Anne Gardner

ANNE GARDNER

JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER

and WALKER, JJ.

PUBLISH

DELIVERED: June 25, 2015
APPENDIX B