Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-15-00394-CR

No. 04-15-00395-CR

The STATE of Texas,

Appellant

v.

James 

James Ray JUNEK,

Appellee

From the County Court at Law, Kerr County, Texas

Trial Court Nos. CR14-0145 & CR14-0146

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

The 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 Attorney. 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. 
04-15-00394-CR & 04-15-00395-CR

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In the motion to dismiss, Junek contends the notice of appeal filed by the State was invalid 

because Article 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 court of jurisdiction.

Texas Code of Criminal Procedure art. 44.01 states “[t]he prosecuting attorney may not 

make an appeal ... later than the 15th day after the date on which the order, ruling, or sentence to 

be appealed is entered by the court.” TEX. CODE CRIM. PROC. ANN. 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, the Texas Court of Criminal Appeals determined 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—in some fashion—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). The court stated in Muller:

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. 

[Footnote omitted]. Because of the jurisdictional 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 prove “the appeal was personally, 

expressly and specifically authorized by the prosecuting attorney.” Muller, 829 S.W.2d at 810 n.6. 

To satisfy this burden, the appellate record must clearly reflect the prosecuting 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 authorizing an assistant to file 

a specific notice of appeal on his behalf. See Muller, 829 S.W.2d at 807-12. A prosecuting 

attorney’s general delegation of authority to an assistant is insufficient, and the use of a “signature 

stamp, without more” does not comply with the statute. See id. (general delegation of authority 

does not qualify under the statute); see 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 case, the record reveals the notice of appeal was filed by and signed by Joseph 

Soane, 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 specifically 
04-15-00394-CR & 04-15-00395-CR

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authorized by the prosecuting attorney.” For this reason, this court must conclude the notice of 

appeal was defective for failure to comply with Article 44.01, and this court does not have 

jurisdiction over this appeal.

Appellee’s motion to dismiss is granted. These appeals are dismissed. All pending 

motions are denied as moot.

PER CURIAM

DO NOT PUBLISH