Wachtendorf, John Allen Jr.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0280-15
THE STATE OF TEXAS
v.
JOHN ALLEN WACHTENDORF, JR., Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
WILLIAMSON COUNTY
K ELLER, P.J., filed a dissenting opinion in which K EASLER, H ERVEY
and A LCALA, JJ., joined.
I agree with former Presiding Judge McCormick that “entered” is a legal term of art that
means “the clerical act of entry into the record”1 and that the clerical act of entry occurs when the
signed order is “file marked by the clerk.”2 Although the interests of stare decisis are at their height
for judicial constructions of legislative enactments upon which the parties rely for guidance in
1
State v. Rosenbaum, 818 S.W.2d 398, 404 (Tex. Crim. App. 1991) (McCormick, P.J.,
concurring).
2
Id. at 405.
 WACHTENDORF DISSENT — 2
conforming to those enactments,3 there are nevertheless times when a court should reconsider a
decision that construes a statute.4 I think this is one of those times, because the construction of the
term “entered” in Rosenbaum to mean “signed” is contrary to the plain meaning of the term
“entered” and because the present case illustrates the problems that can be caused by that
construction.
Nevertheless, the trial court has the power to remedy the situation in this case if it believes
that the State was unfairly deprived of notice of the suppression order in time to file an appeal. An
order suppressing evidence is an interlocutory order that may be revised by the trial court at any time
before the end of trial.5 The trial court could rescind its order granting the motion to suppress on the
basis that the State was not given timely notice of the order. The trial court could then issue a new
order granting the motion to suppress, and the appellate timetables would then run from that new
order. Regardless of whether the trial court provides a remedy in this case, I would not continue to
uphold an interpretation of a statute that requires the State to rely solely upon the grace of the trial
court to correct the deprivation of the State’s right to appeal when the plain language of the statute
does not require such a result.
With these comments, I respectfully dissent.
Filed: November 18, 2015
Publish
3
Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010).
4
See e.g., Blake v. State, 971 S.W.2d 451 (Tex. Crim. App. 1998) (revisiting and ultimately
overruling earlier holding that construed the accomplice witness rule not to cover accomplices who
are juveniles).
5
Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012).