State of Texas v. Harvill Blackshere ( 2013 )

Opinion filed February 14, 2013
In The
Eleventh Court of Appeals
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No. 11-07-00030-CR
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STATE OF TEXAS, Appellant
V.
HARVILL BLACKSHERE, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR17-488
MEMORANDUM OPINION ON REMAND
On original submission, this court set aside the order of the trial court and remanded the
cause for further proceedings. The Court of Criminal Appeals granted the petition for
discretionary review filed by Harvill Blackshere, reversed the judgment of this court, and
remanded the cause to this court for further proceedings not inconsistent with its opinion.
State v. Blackshere, 344 S.W.3d 400 (Tex. Crim. App. 2011). In accordance with the decision of
the Court of Criminal Appeals, we dismiss the appeal for want of jurisdiction.
As noted by the Court of Criminal Appeals, the State was not authorized to appeal the
trial court’s order granting the motion to suppress because the motion was granted after jeopardy
had attached. Id. at 404; see TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West Supp. 2012).
The Court of Criminal Appeals held that “the trial court’s actions were functionally an acquittal
for purposes of double jeopardy.” 344 S.W.3d at 409. It is well settled that an acquittal, even if
erroneous, bars further prosecution and cannot be reviewed on appeal. Sanabria v. United
States, 437 U.S. 54, 69 (1978); United States v. Sisson, 399 U.S. 267, 289 (1970). Consequently,
we must dismiss the State’s appeal.
The appeal is dismissed for want of jurisdiction.
PER CURIAM
February 14, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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