State v. Penny Rae Sage ( 2009 )

Dismissed and Memorandum Opinion filed August 27, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00576-CR

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THE STATE OF TEXAS, Appellant

V.

PENNY RAE SAGE, Appellee

On Appeal from the 400th District court

Fort Bend County, Texas

Trial Court Cause No. 47522A

M E M O R A N D U M   O P I N I O N

This is an attempted appeal by the State from the granting of a motion to suppress. See Tex. Code Crim. Proc. art. 44.01(a)(5).  The clerk=s record was filed on July 28, 2009. The record does not contain an order granting defendant=s motion to suppress.

On August 3, 2009, notification was transmitted to the parties of this court=s intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating grounds for continuing the appeal on or before August 18, 2009.  On August 6, 2009, a supplemental clerk=s record was filed.  It does not contain an order granting defendant=s motion to suppress.

On August 14, 2009, the State filed a response to our notice and on August 18, 2009, appellee replied to the State=s response.  The State=s response acknowledges no order granting the defendant=s motion to suppress has been signed.  The response requests we abate the appeal and remand it to the trial court for entry of a written order or, alternatively, find the trial court=s conclusions of law to be a sufficient appealable order.

A State=s appeal under article 44.01 must be from a signed written order.  See State v. Cox., 235 S.W.3d 283, 284 (Tex. App. B Fort Worth 2007, no pet.) (citing State v. Rosenbaum, 818 S.W.3d 398 (Tex. Crim. App. 1991)).  The State cites no authority, and we are aware of none, that would support this court finding conclusions of law serve as a signed written order for purposes of appeal.  Because there is no order in the record from which the State may appeal, our jurisdiction has not been invoked.  Rule 2 of the Texas Rules of Appellate Procedure prohibits us from abating and remanding the case to allow the trial court another opportunity to enter an appealable order.  Id. at 285 (citing Tex. R. App. P. 2. which provides A. . . a court must not construe this rule to suspend any provision of the Code of Criminal Procedure. . .@).  Accordingly, we deny the State=s requests and order the appeal dismissed for want of jurisdiction.

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PER CURIAM

Panel consists of Justices Anderson, Guzman, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).