# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CR The STATE of Texas, Appellant
v. James James Ray JUNEK , Appellee From the County Court at Law , Kerr County, Texas Trial Court No s . CR14

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Honorable Susan Harris , Judge Presiding PER CURIAM Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Jason Pulliam, Justice Delivered and Filed: November 4, 2015 APPEAL DISMISSED FOR WANT OF JURISDICTION Th e State of Texas appeals the trial court’ s order granting Appellee James Ray Junek’s motion to suppress
. The trial court signed the order on May 6, 2015. On May 14, 2015, the State timely filed a notice of appeal signed by Joseph Soane, Assistant Kerr County Attorn ey. On September 28, 2015, Junek filed a motion to dismiss the State’s appeal for want of jurisdiction based upon the State’s failure to comply with Texas Code of Criminal Procedure article 44.01 (i). The State did not file a response.04

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- In the motion to dismiss, Junek contends the notice of appeal filed by the State was invalid because Arti cle 44.01 requires that a State’ s notice of appeal be signed by the prosecuting attorney or in some way manifest some indication the prosecuting attorney intended to or authorized the appeal. Junek contends the State’ s noncompliance with the provisions of Article 44.01 deprives this c ourt of jurisdiction. Texas Code of Criminal Procedure art. 44.01 states “[t]he prosecuting attorney may not make an appeal
... later than t he 15th day after the date on which the order, ruling, or sentence to be appealed is entered by the court.” T EX . C ODE C RIM . P ROC . A NN . art. 44.01(d) (West Supp. 2014 )
. “Prosecuting attorney” is defined as “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). In State v. Muller , th e Texas Court of Criminal Appeals determine d that Article 44.01(d) authorizes only the prosecuting attorney (in this case the elected Kerr County Attorney) “to make an appeal by personally authorizing

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— the specific notice of appeal in question” prior to the expiration of the deadline for perfecting an appeal. See State v. Muller , 829 S.W.2d 805, 810 (Tex. Crim. App. 1992) (internal quotes omitted). Th e c ourt stated in Muller : We do not suggest that Article 44.01 necessarily requires th at 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

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— the specific notice of appeal i n 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. [Footnote omitted]. Because of the jurisdic tional limitations of Article 44.01 ... we further read the statute to require this personal authorization to occur prior to the expiration of the fifteen day window of appeal. Id
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- When an appellee raises an issue concerning the prosecuting attorney ’s personal authorization of the State’ s appeal, the State bears the burden to prov e “ the appeal was personally, expressly and specifically authorized by the prosecuting attorney. ” Muller , 829 S.W.2d at 810 n.6. T o satisfy this burden, t he appellate record must clearly reflect the prosecut ing attorney’s personal authorization of the specific notice of appeal filed in a given case. Id . “ Evidence of a general delegation of authority to an assistant does not qualify under the statute. ” Id
. Thus, Article 44.01 requires the elected “prosecuting attorney” , not an assistant attorney , to make the State’ s notice of appeal within the prescribed fifteen

- day time period, either through the physical act of signing the notice or by personally and expressly authorizi ng an assistant to file a specific notice of appeal on his behalf. See Muller , 829 S.W.2d at 807

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. A prosecuting attorney’s general delegation of authority to an assistant is insufficient , and the use of a “signature stamp, without more” does not compl y with the statute
. See id. (general delegation of authority does not qualify under the statute) ; s ee also State v. Shelton , 830 S.W.2d 605, 606 (Tex. Crim. App. 1992) ( use of a “signature stamp, without more” does not comply with the statute). In this ca se, the record reveals the notice of appeal was filed by and signed by Joseph S oan e, Assistant Kerr County Attorney. The notice of appeal states, “NOW COMES THE STATE OF TEXAS, by and through its prosecuting attorney Assistant Kerr County Attorney, Joseph Soane....” However, following Muller , this statement is a statement of a general delegation of authority, rather than a case

- specific, express authorization. Nothing in the notice of appeal or in the record reveals any authorization from the prosecuting attorney of Kerr County for Mr. Soane to file the notice of appeal in this specific case . The State has provided no response nor shown the proper authorization under Muller
. The time to file an amended notice of appeal has expired. Thus, the State has failed to satisfy its burden of proof to show the appeal was “ personally, expressly and specifically04

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- authorized by the prosecuting attorney
. ” For this reason, this c ourt must conclude the notice of appeal was defective for failure to comply with Article 4 4.01, and this c ourt does not have jurisdiction over this appeal. Appellee’s motion to dismiss is granted. The se appeal s are dismissed. All pending motions are denied as moot. PER CURIAM DO NOT PUBLISH