State of Texas v. Paul Wesley Scribner ( 2001 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-01-00201-CR ______________________________



THE STATE OF TEXAS, Appellant

V.

PAUL WESLEY SCRIBNER, Appellee

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On Appeal from the 6th Judicial District Court Fannin County, Texas Trial Court No. 19815

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Paul Scribner was charged with manufacture of a controlled substance in Fannin County. He moved to suppress evidence seized from his home. The trial court granted the motion. The State has filed a notice of appeal which does not state that the appeal was not taken for the purpose of delay and that the evidence is of substantial importance to the case. The notice of appeal was signed by an assistant county attorney. We noted a probable jurisdictional defect and, on November 7, 2001, we wrote a letter in which we pointed out the defects and invited the State to provide a response explaining how we had jurisdiction over the appeal. No response has been filed.

The initial question before this Court is whether the notice of appeal serves to provide jurisdiction for this Court.

On October 9, 2001, the trial court granted Scribner's motion to suppress. The State filed its timely notice of appeal on October 16, 2001. See Tex. Code Crim. Proc. Ann. art. 44.01(d) (Vernon Supp. 2002).

Article 44.01 provides that the State is entitled to appeal an order granting a motion to suppress evidence if jeopardy has not attached to the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence is of substantial importance to the case. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2002).

The Texas Court of Criminal Appeals strictly construes the statutory requirements of Article 44.01, which establishes the State's limited right of appeal. State v. Riewe, 13 S.W.3d 408, 411 (Tex. Crim. App. 2000); State v. Muller, 829 S.W.2d 805, 812-13 (Tex. Crim. App. 1992). Further, the court has held that the certification requirement of Article 44.01 is jurisdictional. Riewe, 13 S.W.3d at 413. Therefore, because the State's notice of appeal lacked the certification requirement, it failed to confer jurisdiction on this Court. See id.

In addition, a failure to comply with Article 44.01 is substantive and is not susceptible to correction through application of the "amendment and cure" provisions in the Texas Rules of Appellate Procedure. Riewe, 13 S.W.3d at 410-12; Muller, 829 S.W.2d at 812. Therefore, the Rules of Appellate Procedure, including the amendment provision of Rule 25.2(d), cannot expand the state's power to obtain jurisdiction before an appellate court. Riewe, 13 S.W.3d at 413; see Tex. R. App. P. 25.2(d). In addition, in state-prosecuted appeals, the failure of the elected prosecuting attorney, as opposed to an assistant, to make the appeal is a jurisdictional defect. Riewe, 13 S.W.3d at 410.

In this case, the State's notice of appeal did not comply with Article 44.01 because it did not certify that the appeal was not taken for the purpose of delay or that the evidence was of substantial importance to the case, and also because it was signed by an assistant rather than by the elected prosecuting attorney.

The appeal is dismissed for want of jurisdiction.

Donald R. Ross

Justice

Date Submitted: December 19, 2001

Date Decided: December 19, 2001

Do Not Publish

atory facts and circumstances tend to connect the appellant to the offense. Id. Mere presence at the scene is not enough to corroborate the accomplice testimony. Id. at 708; Torres, 137 S.W.3d at 196. However, presence of the accused at or near the scene of the crime at or about the time of its commission, coupled with other suspicious circumstances, may be sufficient to tend to connect the accused to the crime. Brown, 159 S.W.3d at 708. "Even apparently insignificant incriminating suspicious circumstances may sometimes prove to be sufficient corroboration." Id.; Torres, 137 S.W.3d at 196; see Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Cantelon, 85 S.W.3d at 461. Cumulative evidence of "suspicious circumstances" may be sufficient even if none of the circumstances would be sufficient individually. Cantelon, 85 S.W.3d at 460-61. The corroborating evidence does not need to prove all the elements of the alleged offense or directly link the accused to the commission of the offense; the covert-witness rule merely requires some evidence which tends to connect the accused to the offense. Jeffery v. State, 169 S.W.3d 439, 448 (Tex. App.--Texarkana 2005, pet. ref'd); see Torres, 137 S.W.3d at 196.

A judicial confession by the accused may be sufficient to corroborate the testimony of a covert witness even if the confession contains exculpatory assertions. See Jackson v. State, 516 S.W.2d 167, 171 (Tex. Crim. App. 1974) (judicial confession sufficient to corroborate accomplice testimony despite defendant's testimony he acted in self-defense); see also Thompson v. State, 54 S.W.3d 88, 94 (Tex. App.--Tyler 2001, pet. ref'd). Jones admitted to accepting money from Beasley in exchange for the morphine. In addition, a videotape ⁽²⁾ of the transaction between Jones and Beasley was introduced into evidence. The videotape shows Beasley and Jones exchanging money and pills. The audio portion of the videotape includes a discussion of the morphine purchase. There is sufficient corroboration of the covert witness's testimony. We overrule Jones's sole point of error.

Because there is sufficient corroboration of the covert witness's testimony, we affirm Jones's conviction.

Bailey C. Moseley

Justice

Date Submitted: November 22, 2006

Date Decided: February 1, 2007

Do Not Publish

1. Tex. Health & Safety Code Ann. § 481.114(b) (Vernon 2003).

2. We note three videotapes of drug transactions between Jones and Beasley were introduced into evidence. The videotape which records Beasley purchasing morphine from Jones was recorded on or about January 30, 2004. In a related appeal, Jones appeals a separate conviction for selling Beasley Vicodin. See Jones v. State, cause number 06-06-00056-CR.