The State of Texas v. Whitney S. Villa ( 2023 )

DISMISSED FOR WANT OF JURISDICTION; and Opinion Filed July 18,
2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00220-CR
THE STATE OF TEXAS, Appellant
V.
WHITNEY S. VILLA, Appellee
On Appeal from the County Criminal Court of Appeals No. 1
Dallas County, Texas
Trial Court Cause No. MC-21-R0003-D
OPINION
Before Justices Carlyle, Goldstein, and Kennedy
Opinion by Justice Kennedy
In the City of Mesquite Municipal Court, a municipal court of record, a jury
convicted Whitney S. Villa of assault by contact, a Class C misdemeanor, and the
court assessed a fine of $331 as Villa’s punishment. See TEX. PENAL CODE ANN.
§ 22.01(a)(3), (c). Villa appealed the municipal court’s judgment to County
Criminal Court of Appeals No. 1, which ruled in Villa’s favor, reversed the
municipal court’s judgment, and remanded Villa’s case for a new trial. The State
now seeks to appeal the county criminal court of appeals’ judgment to this Court.
We questioned this Court’s jurisdiction over the State’s appeal because it does
not meet the requirements of Texas Government Code Section 30.00027(a), and, on
our own motion, we asked the parties to show cause why this appeal should not be
dismissed. See TEX. GOV’T CODE ANN. § 30.00027(a) (setting forth the requirements
for appeals of matters originating in municipal courts of record to the courts of
appeal). The State responded asserting we have jurisdiction over its appeal. Villa
responded urging this Court to follow the Fort Worth Court of Appeals’ decision in
State v. Pugh and dismiss the appeal for lack of jurisdiction. No. 02-21-00108-CR,
2022 WL 1793518 (Tex. App.—Fort Worth June 2, 2022, no pet.) (mem. op., not
designated for publication). For the reasons set forth herein, we conclude we do not
have jurisdiction over the State’s appeal.
DISCUSSION
I. Right of Appeal
In Texas, appeals by either the State or the defendant in a criminal case are
permitted only when they are specifically authorized by statute. State ex rel. Lykos
v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011) (orig. proceeding). And “[t]he
standard for determining jurisdiction is not whether the appeal is precluded by law,
but whether the appeal is authorized by law.” Id. (quoting Abbott v. State, 271
S.W.3d 694, 696–97 (Tex. Crim. App. 2008)). Thus, while the legislature has
generally granted the courts of appeals appellate jurisdiction coextensive with the
limits of their respective districts in all criminal cases except those in which the death
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penalty has been assessed, with a minimum fine requirement in cases appealed from
an inferior court to one of the county courts, unless the sole issue is the
constitutionality of the statute or ordinance on which the conviction is based,
whether the court may exercise jurisdiction in a specific case still depends upon
whether the appealing party has been given the right to appeal. See TEX. CODE CRIM.
PROC. ANN. art. 4.03. Article 44.02 of the Code of Criminal Procedure states a
defendant’s general right of appeal, and Article 44.01 provides the State a limited
right of appeal.1 Id. arts. 44.01–.02. When we consider whether a party has been
granted a right to appeal, we default to these provisions unless another legislative
directive applicable to the case provides otherwise. See, e.g., Dallas Cnty. v. Coutee,
233 S.W.3d 542, 545 (Tex. App.—Dallas 2007, pet. denied).
1
Under Article 44.01, “The state is entitled to appeal an order of a court in a criminal case if the
order: (1) dismisses an indictment, information, or complaint or any portion of an indictment, information,
or complaint; (2) arrests or modifies a judgment; (3) grants a new trial; (4) sustains a claim of former
jeopardy; (5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not
attached in 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, confession, or admission is of substantial importance in the case;
or (6) is issued under Chapter 64 [addressing miscellaneous proceedings].” CRIM. PROC. art. 44.01(a). In
addition, the State is entitled to appeal (1) a sentence in a case on the ground that the sentence is illegal, (2)
a ruling on a question of law if the defendant is convicted in the case and appeals the judgment, (3) an order
granting relief to an applicant for a writ of habeas corpus under Article 11.072, (4) an order entered under
Subchapter G or H, Chapter 62, that exempts a person from complying with the requirements of Chapter
62, and Subchapter I, Chapter 62, that terminates a person’s obligation to register under Chapter 62. Id.art. 44.01(b), (c), (k), (l).
Under Article 44.02, “A defendant in any criminal action has the right of appeal under the rules
hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his
plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant,
assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor
and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the
trial court, except on those matters which have been raised by written motion filed prior to trial.” Id. art.
44.02.
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II. Initial Appeal of Municipal Court of Record Judgment or Conviction
Section 30.00014(a) of the Texas Government Code governs an initial appeal
of a municipal court of record’s judgment or conviction. See GOV’T § 30.00014(a).
Jurisdiction of such an appeal lies in the county criminal courts or the county
criminal courts of appeal in the county in which the municipality is located, or in the
municipal county courts of appeal, or in the county courts at law, as a default in the
absence of the aforementioned courts. Id. Section 30.00014 does not apply to
subsequent appeals from the county courts to the courts of appeals. See Pugh, 2022
WL 1793518, at *2.
Section 30.00014 affords a defendant the right to appeal from a judgment or
conviction of a municipal court of record. GOV’T § 30.00014(a). The State has the
right to appeal as provided by Article 44.01 of the Texas Code of Criminal
Procedure. Id. § 30.00014(a). The actions listed in Article 44.01(a) are typically
actions that are taken by a trial court and, thus, are logically subject to an initial
appeal. To preserve a complaint for appeal to the county criminal court, the
appealing party must set forth its complaint in a motion for new trial. Id.
§ 30.00014(c).
Unlike appeals from a “municipal court,” an appeal from a “municipal court
of record” may not be by trial de novo; rather, it is truly an appeal of the underlying
decision. Id. § 30.00014(b); CRIM. PROC. art. 44.17 (“In all appeals to a county court
from . . . municipal courts other than municipal courts of record, the trial shall be de
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novo . . . in the county court, the same as if the prosecution had been originally
commenced in that court. An appeal to the county court from a municipal court of
record may be based only on errors reflected in the record.”); CRIM. PROC. art.
45.042(b) (“Unless the appeal is from a municipal court of record and the appeal is
based on error reflected in the record, the trial shall be de novo.”). Section 30.00014
does not address the issue of subsequent appeals.
In the current case, it was Villa, not the State, who perfected an appeal from
the municipal court of record to the county criminal court of appeals. Dissatisfied
with that court’s resolution of Villa’s appeal, reversing the judgment of the
municipal court of record and remanding the case for a new trial, the State now seeks
review from this Court. Accordingly, we discuss the requisites for an appeal to this
Court following the county criminal court of appeals’ resolution of an appeal of a
municipal court of record’s judgment or conviction.
III. Appeals to Court of Appeals
The statute governing our jurisdiction, under the circumstances in which this
appeal reaches us, is Section 30.00027 of the Texas Government Code, titled
“Appeals to Court of Appeals.” See GOV’T § 30.00027; Pugh, 2022 WL 1793518,
at *1. Pursuant to Section 30.00027(a), “The appellant has the right to appeal to the
court of appeals if: (1) the fine assessed against the defendant exceeds $100 and the
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judgment is affirmed by the appellate court;2 or (2) the sole issue is the
constitutionality of the statute or ordinance on which a conviction is based.” GOV’T
§ 30.00027(a) (emphasis added). In our order requesting letter briefs from the parties
addressing this Court’s jurisdiction over the State’s appeal, we questioned our
jurisdiction because (1) the State, as the appellant, is not appealing a case in which
the fine assessed exceeds $100 and the municipal court of record’s judgment is
affirmed by the county criminal court of appeals, sitting as the appellate court, and
(2) the State’s appeal does not involve the constitutionality of any underlying statute
or ordinance on which the conviction was based.
IV. The State’s Arguments
In the State’s letter brief, it contends that we have jurisdiction to hear its
appeal under Article “44.01 of the Texas Code of Criminal Procedure, by and
through Section 30.00014 of the Texas Government Code, through Section
30.00027(b) of the Texas Government Code.” The State relies principally on this
Court’s decision in Morales and the Texas Court of Criminal Appeals’ decision in
Blankenship to urge it has a right to appeal under Article 44.01. See State v.
Blankenship, 146 S.W.3d 218 (Tex. Crim. App. 2004); State v. Morales, 322 S.W.3d
297 (Tex. App.—Dallas 2010, no pet.). We will address the State’s arguments
2
With respect to municipal courts of record, the Government Code defines “appellate court” as
“(A) the county criminal court, the county criminal court of appeals, or the municipal court of appeals; or
(B) the county court at law if there is no county criminal court, country criminal court of appeals, or
municipal court of appeals.” GOV’T § 30.00002(1).
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concerning these cases as well as its reference to Sections 30.00014 and 30.00027(b)
of the Government Code.
A. Section 33.00014 – “Appeal”
To the extent the State relies on Section 30.00014(a), and its reference to
Article 44.01 of the Texas Code of Criminal Procedure, to establish a right to appeal
the county criminal court of appeal’s judgment reversing the municipal court of
record’s judgment and remanding the case for a new trial, its reliance is misplaced.
Section 30.00014(a) applies to initial appeals from the municipal courts of record to
the county courts, not to subsequent appeals from the county courts to the courts of
appeals. Id. § 30.00014(a); Pugh, 2022 WL 1793518, at *2. Appeals to this Court
are governed by Section 30.00027, titled “Appeals to Court of Appeals.” GOV’T
§ 30.00027(a); Pugh, 2022 WL 1793518, at *1.
B. Morales
The State contends that the posture of the current case is similar to that of
Morales and Sanchez, cases in which this Court considered the merits of appeals by
the State in cases that originated in municipal courts of record. Morales, 322 S.W.3d
at 297; State v. Sanchez, 135 S.W.3d 698 (Tex. App.—Dallas 2003), aff’d, 138
S.W.3d 324 (Tex. Crim. App. 2004). The State concedes that this Court did not
address the issue of jurisdiction in Sanchez, and we conclude Sanchez is not
instructive here. With respect to Morales, the State contends that this Court
expressly recognized jurisdiction over the State’s appeal and that, absent an
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intervening change in the law by the legislature, a higher court, or this Court sitting
en banc, this Court should not overrule Morales’ jurisdictional determination. For
the reasons set forth herein, we disagree with the State’s characterization of the scope
of this Court’s decision in Morales and conclude the State’s reliance on Morales is
misplaced.
In Morales, a jury convicted Morales of having possessed drug paraphernalia
and the trial court assessed a fine of $500. Morales filed a motion for new trial,
which the trial court granted. Morales then filed an application for writ of habeas
corpus asserting the new trial was barred by the double jeopardy clauses of the
United States and Texas Constitutions. The trial court granted the application and
entered a judgment of acquittal. In that case, the State, not the defendant, appealed
to the county criminal court of appeals. That court affirmed the trial court’s orders,
and the State appealed to this Court. We recognize here that on appeal to this Court,
we referenced Government Code Section 30.00014(a) and Article 44.01 of the Code
of Criminal Procedure, along with Section 30.00027 of the Government Code. But
we did so only in the recital of the facts while simply noting that the appeal was
timely filed. Contrary to the State’s assertion, this Court did not expressly recognize
that it had jurisdiction over the substance of the State’s appeal and did not analyze
whether a specific statute authorized exercise of jurisdiction over the case.
Moreover, the fact that the Court went on to decide the case on the merits does not
impact or control our decision here because it is beyond question that a court may
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not by its own action, explicitly or implicitly, expand jurisdiction beyond that
granted by the Constitution or legislature. City of Amarillo v. Hancock, 239 S.W.2d
788, 791 (Tex. 1951); see also Emps. Ret. Sys. of Tex. v. Foy, 896 S.W.2d 314, 316
(Tex. App.—Austin 1995, writ denied).
C. Blankenship
Next, the State asserts that in Blankenship the court of criminal appeals
addressed the court of appeals’ jurisdiction in a municipal court of record appeal and
did so by applying and referencing Article 44.01 of the Code of Criminal Procedure.
Blankenship, 146 S.W.3d at 218. While the court may have referenced Article 44.01,
the focus of the court’s opinion was on subsection (d), dealing with the notice of
appeal deadline,3 and whether the County Attorney “made” the appeal, and was
limited to the issue of whether the County Attorney had consented to the City
Attorney’s prosecuting the appeal under Article 45.201 of the Code of Criminal
Procedure.4
3
We recognize that in footnote 1 of the opinion, the court stated, “Article 44.01(a) and (b), TEX.
CODE CRIM. PROC., permits the ‘state’ to appeal certain matters.” But we note that the statement is not
specifically addressed to the issue of the state’s appeal to the court of appeals following an appeal of a
municipal court of record’s judgment or conviction to the county criminal courts and did not address the
specific issue that was before the court. We conclude the statement is merely dicta. See, e.g., Sommers v.
Concepcion, 20 S.W.3d 27, 39 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (when the court was
not addressing the specific issue addressed in the footnote, the statement in the footnote was merely dicta).
For that reason, we do not find the Gates case, which the State references as citing Blankenship, to be
persuasive here. See State v. Gates, No. 14-12-00573-CR, 2012 WL 3629349, at *1 (Tex. App.—Houston
[14th Dist.] Aug. 23, 2012, no pet.) (mem. op., not designated for publication).
4
Article 45.201(c) provides, “With the consent of the county attorney, appeals from municipal
court to a county court, county court at law, or any appellate court may be prosecuted by the city attorney
or a deputy city attorney.” CRIM. PROC. art. 45.201(c). Article 44.01(d) provides, “The prosecuting
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In that case, the court of criminal appeals noted that after the time for filing a
timely notice of appeal expired, Blankenship filed a motion to dismiss the appeal
claiming the court of appeals lacked jurisdiction over the appeal because neither the
amended notice of appeal nor anything else in the record reflected that the County
Attorney “personally” made the appeal. State v. Blankenship, 123 S.W.3d 99, 102–
05 (Tex. App.—Austin 2003), rev’d, 146 S.W.3d 218 (Tex. Crim. App. 2004). The
court of appeals decided that the assertion in the City’s amended notice of appeal
that the County Attorney consented to this particular appeal under Article 45.201,
failed to satisfy Article 44.01(d)’s requirement that the County Attorney “make” the
appeal. Id. at 105. The court of criminal appeals disagreed with the court of appeals
and concluded that an assertion in a notice of appeal, such as the one at issue there,
could simultaneously comply with Articles 45.201 and 44.01(d). Blankenship, 146
S.W.3d at 220. Consequently, we conclude Blankenship does not support the State’s
assertion that this Court has jurisdiction over its appeal.
V. Section 30.00027 – “Appeals to Court of Appeals”
This brings us back to Section 30.00027. Unlike Section 30.00014, Section
30.00027 does not expressly refer to Article 44.01 of the Code of Criminal
Procedure. Had the legislature intended to give the State the right to appeal to the
attorney may not make an appeal under Subsection (a) or (b) of this article later than the 20th day after the
date on which the order, ruling, or sentence to be appealed is entered by the court. Id. art. 44.01(d).
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courts of appeal under Article 44.01, it could have used the same language in Article
30.00027, but it did not. When the legislature has employed a term in one section
of a statute and excluded it in another, we presume the legislature had a reason for
excluding it. See Fireman’s Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769
(Tex. 2000); see also Laidlaw Waste Sys. (Dallas) Inc. v. City of Wilmer, 904 S.W.2d
656, 659 (Tex. 1995) (when legislature uses a word or phrase in one portion of statute
but excludes it from another, the term should not be implied where it has been
excluded).
With respect to the history of Section 30.00027, we note that the earliest
version of Section 30.00027 was Section 30.505, and it used the term “defendant”
when addressing the right to appeal.5 Act of May 23, 1987, 70th Leg., R.S., ch. 811,
§ 1, 1987 Tex. Gen. Laws, 2809, 2814. Effective September 1, 1997, Section 30.505
was renumbered (without any editing) as Section 30.00025. Act of May 8, 1997,
75th Leg., R.S., ch. 165, § 8.02, 1997 Tex. Gen. Laws 327, 389. Thus, at one time
the restriction on the right to appeal in what would later become Section 30.00027
applied only to defendants who had appealed from the municipal court to the county
court, who lost their appeal in the county court, and who wanted to appeal from the
5
Section 30.505 provided, “The defendant has the right to appeal to the court of appeals if the fine
assessed against the defendant exceeds $100 and if the judgment is affirmed by the appellate court. The
provisions of the code of criminal procedure relating to direct appeals from a county or a district court to
the court of appeals apply to the appeal, except that: (1) the record and briefs on appeal in the appellate
court constitute the record and briefs on appeal to the court of appeals unless the rules of the court of
criminal appeals provide otherwise; and (2) the record and briefs shall be filed directly with the court of
appeals.”
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county court to the courts of appeals.
But effective September 1, 1999, Section 30.00025 was renumbered as
Section 30.00027 and, in connection with the recitation of the right to appeal, the
designation of “defendant” was replaced with “appellant.” Act of May 27, 1999,
76th Leg., R.S., ch. 691 § 1, 1999 Tex. Gen. Laws, 3263, 3270. When the legislature
amends a statute, we presume that the legislature intended to change the law, and we
give effect to that intended change. Brown v. State, 915 S.W.2d 533, 536 (Tex.
App.—Dallas 1995), aff’d, 943 S.W.2d 35 (Tex. Crim. App. 1997). By changing
“defendant” to “appellant,” the legislature broadened Section 30.00027(a) to include
the State. Pugh, 2022 WL 1793518, at *3. Because the State falls under Section
30.00027(a), we have no need to look beyond it for a default provision, and Article
44.01 is not implicated.6
Finally, we consider what, if any, impact Section 30.00027(b) has on the
parties’ rights to appeal to the court of appeals. Section 30.00027(b) provides:
The provisions of the Code of Criminal Procedure relating to direct
appeals from a county or a district court to the court of appeals apply to
6
The dissent contends applying Section 30.00027(a) to the State, as appellant, would lead to absurd
results because “it is unlikely that the State would ever have the authority to appeal.” We recognize that
Section 30.00027(a) is more restrictive than Article 44.01. We disagree with the dissent as to the extent of
that restriction, and note that, nevertheless, the legislature is entitled to restrict the breadth of its grants of
subsequent appeal authority, and that the restrictions do not altogether foreclose the State’s ability, under
the right circumstances, to seek further review from this Court or discretionary review from the court of
criminal appeals. See Lykos, 330 S.W.3d at 915; CRIM. PROC. art. 44.03. The dissent also references
Section 30.00026, which provides that if the appellate court (county court of criminal appeals) awards a
new trial to the appellant, the case stands as if a new trial had been granted by the municipal court of record,
and, citing Section 30.00014, suggests this affords the State the opportunity to appeal to this Court pursuant
to Section 30.00014’s reference to Article 44.01. But nothing in Section 30.00026 references a subsequent
appeal to this Court, and, for the reasons stated supra, Section 30.00014 does not apply to appeals to this
Court.
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the appeal, except that:
(1) the record and briefs on appeal in the appellate court constitute the
record and briefs on appeal to the court of appeals unless the rules of
the court of criminal appeals provide otherwise; and
(2) the record and briefs shall be filed directly with the court of appeals.
GOV’T § 30.00027(b). We conclude, as our sister court of appeals did in Pugh, that
Section 30.00027(b) addresses procedural, not jurisdictional, issues, as evidenced by
the reference to the record and briefs and the filing thereof, and we do not read it to
broaden our jurisdiction beyond that set forth in Section 30.00027(a).
If Section 30.00027(b) broadened the right of appeal to include Article 44.01
of the Code of Criminal Procedure, notwithstanding the legislature’s decision not to
reference the provision in Section 30.00027, we would have to include—in addition
to Article 44.01—Article 44.02, addressing a defendant’s right to appeal. With
exceptions applicable to plea bargains not relevant here, Article 44.02 affords
defendants unrestricted appeals. CRIM. PROC. art. 44.02. And if we applied both
Article 44.01 and Article 44.02 to establish our jurisdiction to hear these appeals,
then Section 30.00027(a) would be rendered meaningless. In interpreting a statute,
we must read it as a whole and construe it to give meaning and purpose to every part.
Ex parte Pruitt, 551 S.W.2d 706, 709 (Tex. 1977) (orig. proceeding). Courts should
avoid constructions that render statutes or portions thereof meaningless. See Ludwig
v. State, 931 S.W.2d 239, 242 n.9 (Tex. Crim. App. 1996); Gordon v. State, 707
S.W.2d 626, 629 (Tex. Crim. App. 1986). Moreover, had the legislature intended
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that subsequent appeals to the court of appeals be governed solely and completely
by the Code of Criminal Procedure, with only the restrictions in subsections (b)(1)
and (2), it could have completely eliminated subsection (a). It did not.
CONCLUSION
The State has not satisfied either of the paths to review before this Court as
set forth in Section 30.00027(a) of the Government Code. Accordingly, this Court
lacks jurisdiction over the State’s appeal. See Pugh, 2022 WL 1793518, at *6. Thus,
we dismiss the State’s appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f).
/Nancy Kennedy/
NANCY KENNEDY
Publish JUSTICE
TEX. R. APP. P. 47
220220F.P05
Goldstein, J., dissenting
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the County Criminal
Court of Appeals No. 1, Dallas
No. 05-22-00220-CR V. County, Texas
Trial Court Cause No. MC-21-
WHITNEY S. VILLA, Appellee R0003-D.
Opinion delivered by Justice
Kennedy. Justices Carlyle and
Goldstein participating.
Based on the Court’s opinion of this date, the State’s appeal is DISMISSED
for want of jurisdiction.
Judgment entered this 18th day of July, 2023.
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