State v. Aaron Lagunas ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00059-CR
State of Texas, Appellant
v.
Aaron Lagunas, Appellee
FROM THE COUNTY COURT AT LAW OF COMAL COUNTY
NO. 2001CR1734, HONORABLE BRENDA CHAPMAN, JUDGE PRESIDING
The State seeks to appeal an order by the county court at law granting appellee Aaron
Lagunas’s motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West
Supp. 2002). We will dismiss the appeal for noncompliance with article 44.01.
The elected prosecuting attorney—not an assistant—must personally supervise and
authorize appeals pursuant to article 44.01. State v. Muller, 829 S.W.2d 805, 810 (Tex. Crim. App.
1992). To comply with the statute, the elected prosecuting attorney must either physically sign the
notice of appeal or personally instruct and authorize a subordinate to do so. Id. The notice of appeal
in this cause was signed by the assistant criminal district attorney. The statement in the notice of
appeal that the State is acting “by and through its Criminal District Attorney of Comal County” is not
adequate to fulfill the statutory requirement. Id. at 811.
In an appeal from an order granting a motion to suppress, the elected prosecuting
attorney must also certify that the appeal is not taken for the purpose of delay and that the evidence
in question is of substantial importance to the State. Art. 44.01(a)(5). In this cause, the certification
is signed by the assistant criminal district attorney and therefore does not satisfy this additional
statutory requirement. Muller, 829 S.W.2d at 809; State v. Brown, 843 S.W.2d 267, 268 (Tex.
App.—Austin 1992, no pet.).
The State did not properly perfect its appeal within the fifteen days in which it is
allowed to “make an appeal.” Art. 44.01(d); see Muller, 829 S.W.2d at 812; State v. Demaret, 764
S.W.2d 857, 858 (Tex. App.—Austin 1989, no pet.). This defect cannot be cured by later
amendment. State v. Riewe, 13 S.W.3d 408, 412-14 (Tex. Crim. App. 2000). Accordingly, the
appeal is dismissed.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Dismissed for Want of Jurisdiction
Filed: April 11, 2002
Do Not Publish
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