State v. Blankenship
| Decision Date | 16 October 2003 |
| Docket Number | No. 03-03-00288-CR.,No. 03-03-00287-CR.,No. 03-03-00291-CR.,No. 03-03-00290-CR.,No. 03-03-00292-CR.,No. 03-03-00289-CR.,No. 03-03-00294-CR.,No. 03-03-00293-CR.,03-03-00287-CR.,03-03-00288-CR.,03-03-00289-CR.,03-03-00290-CR.,03-03-00291-CR.,03-03-00292-CR.,03-03-00293-CR.,03-03-00294-CR. |
| Parties | The STATE of Texas, Appellant, v. Robert BLANKENSHIP, Appellee. |
| Court | Texas Court of Appeals |
Terrence L. Irion, Anatole R. Barnstone, Law Office of Terrence L. Irion, Austin, for Appellee.
Before Chief Justice LAW, Justices PURYEAR and ONION.*
The State appeals eight judgments, Nos. 624903 through 624910, entered by the County Court at Law No. 1 of Travis County, each of which reversed a judgment of conviction in the municipal court of the City of Austin.
On April 24, 2002, thirteen complaints were filed against appellee Blankenship in the municipal court of the City of Austin charging him with violations of city ordinances defining penal offenses.1 The cases were heard on July 17, 2002. The municipal court judge acquitted Blankenship of five offenses, but took the other cases under advisement. On August 23, 2002, the trial court judge found Blankenship guilty of five offenses of developing or changing the use of property without first obtaining a site plan approval and release by the City of Austin. Blankenship was also convicted of three offenses of failing to observe a stop-work order posted at the site of the property involved. The trial court assessed a $1,000 fine in each of the eight cases. Blankenship appealed all eight convictions to the County Court at Law No. 1 of Travis County. These appeals were based on the record made in the municipal court of the City of Austin, a court of record. See Tex. Gov't Code Ann. §§ 30.00731-.00737 (West Supp.2003).
On April 25, 2003, the county court at law handed down an opinion applicable to all eight appeals reversing the judgments of convictions in the municipal court. The county court at law, acting in its appellate capacity, found that there was a fatal variance in each case between the pleading and the proof. The court found that each complaint alleged the offense occurred within the territorial limits of the city. The proof showed, however, that each offense occurred outside the territorial limits of the city, although within the extraterritorial jurisdiction of the city, a matter not alleged. Because of the fatal variance, and the failure to plead an essential element of each offense charged, the county court at law reversed each of the eight convictions and ordered the trial court to enter judgments of acquittal. The State gave notice of appeal in each case. The State has now raised three points of error claiming the county court at law erred in its written opinion. We will not reach the merits of these contentions.
We are confronted at the outset with a jurisdictional question. In this State-prosecuted appeal, the notice of appeal is signed only by an assistant city attorney and not "made" by the "prosecuting attorney" in this case, the county attorney, as required by statute. See Tex.Code Crim Proc. Ann. art. 44.01(d), (i) (West Supp. 2003). Appellee Blankenship has filed a motion to dismiss the appeal claiming that this Court has no jurisdiction.
Jurisdiction concerns the power of the court to hear and determine a case. State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App.2000); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996). Jurisdiction is fundamental and its absence cannot be ignored by an appellate court. State v. Morse, 903 S.W.2d 100, 102 (Tex.App.-El Paso 1995, no pet.); Solis v. State, 890 S.W.2d 518, 520 (Tex.App.-Dallas 1994, no pet.). Consequently, we are obligated to take notice of the circumstances, even on our own motion. White v. State, 930 S.W.2d 673, 675 (Tex.App.-Waco 1996, no pet.); Morse, 903 S.W.2d at 102. Each court has jurisdiction to determine whether it has jurisdiction. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App.1996). When a court determines that it has no jurisdiction to decide the merits of the case or appeal, the appropriate action is to dismiss. Id. at 660; Wolfe v. State, 878 S.W.2d 645, 646 (Tex.App.-Dallas 1994, no pet.). Any other action by a court without jurisdiction is void. Foster v. State, 635 S.W.2d 710, 721 (Tex.Crim.App.1982); Ford v. State, 38 S.W.3d 836, 841 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Martinez v. State, 5 S.W.3d 722, 725 (Tex.App.-San Antonio 1999, no pet.); see also Jordan v. State, 54 S.W.3d 783, 785 (Tex.Crim.App.2001).
Appellate jurisdiction is generally invoked by giving notice of appeal in a criminal case. Riewe, 13 S.W.3d at 410.2 The notice of appeal must be timely and in writing to invoke the jurisdiction of a court of appeals. Id. The instant case is a State-prosecuted appeal, therefore, we examine the State's limited right of appeal and the notice of appeal it must give.
Prior to November 1987, there was a traditional prohibition against appeals by the State in criminal litigation. 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 43.191 (2d ed.2001) [hereinafter Dix]; State v. Pittman, 829 S.W.2d 897, 898 (Tex.App.-Austin 1992, no pet.). In the general election in November 1987, the citizens of Texas voted to amend the Texas Constitution to read: "The State is entitled to appeal in criminal cases, as authorized by general law." Tex. Const. art. V, § 26. Article 44.01 of the Texas Code of Criminal Procedure was amended to implement this historic constitutional change by granting a limited right of appeal by the State. Article 44.01 provides in pertinent part:
(a) The state is entitled to appeal an order of a court in a criminal case if the order:
...
(2) arrests or modifies a judgment
(d) The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day after the date on which the order, ruling or sentence to be appealed is entered by the court.
...
(i) In this article "prosecuting attorney" means the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.
Tex.Code Crim. Proc. Ann. art. 44.01(a)(2), (d), (i) (West Supp.2003) (emphasis added).3
We must decide whether the instant amended notice of appeal signed only by an assistant city attorney meets the requirements of article 44.01. It must be remembered that we are dealing with a State-prosecuted appeal, not an appeal by a convicted defendant in a criminal case.
State v. Muller, 829 S.W.2d 805 (Tex.Crim.App.1992), appears to be the controlling case. In Muller, the State's original notice of appeal was signed only by the assistant district attorney of Harris County. Eight months later, the State persuaded the court of appeals to permit it to submit an amended notice of appeal signed personally by the elected district attorney. The court of appeals reversed the trial court's ruling. A petition for discretionary review was granted. Id. at 806. The Texas Court of Criminal Appeals reversed the court of appeals and explained that article 44.01 not only prescribes the procedural guidelines but it also limits the State's authority to appeal. Id. at 812 (); see also Bayless v. State, 91 S.W.3d 801, 804 (Tex.Crim.App.2002).
Muller made clear that article 44.01(i) required that the elected prosecuting attorney personally and timely authorize each notice of appeal by the State. Id. at 810-12. The "prosecuting attorney" designated in the statute may not delegate general responsibility for deciding whether the State is to take an appeal in a criminal case to an assistant. Id. at 812 n. 9. The court rejected the amended notice of appeal holding that the filing of the original notice of appeal by an assistant prosecuting attorney is not a defect in appellate procedure but a failure to abide by the substantial requirements of article 44.01. Id. at 812. The court concluded that the State did not have the legal power to file a notice after the statutory fifteen-day deadline set forth in article 44.01(d) had expired. Id. The court held that noncompliance with article 44.01 was not susceptible to correction through the application of the Texas Rules of Appellate Procedure, and that the court of appeals erred in using the appellate procedural rules to create a jurisdiction enlarging procedure neither expressly contained or implicated by the literal text of article 44.01. Id.4
The caselaw has been consistent with the holding in Muller. See 43A Dix § 43.194. In Pittman, the notice of appeal signed by an assistant county attorney was held defective and not cured by an untimely amended notice of appeal. 829 S.W.2d at 899-900. In State v. Boseman, 830 S.W.2d 588 (Tex.Crim.App.1992), as in the instant case, the notice of appeal was signed by an assistant city attorney and not by the prosecuting attorney (county attorney). After the fifteen-day deadline set forth in article 44.01, the county attorney filed an affidavit purporting to deputize the assistant city attorney for the purpose of the appeal and to ratify the notice of appeal given. Id. at 589. The court held that the notice was defective and the State lost any chance to appeal "when the fifteen-day window of opportunity closed without the county attorney's personal and express authorization of this specific notice of appeal." Id. at 591.
In State v. Shelton, 830 S.W.2d 605 (Tex.Crim.App.1992), the notice of appeal was signed only by an assistant county attorney. The court found this notice defective and not saved by the stamping of the facsimile signature of the county attorney on the notice. The court concluded that such...
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State v. Blankenship
...to be in writing. It would appear to apply to appeals that have been perfected. For the reasons set forth in State v. Blankenship, 123 S.W.3d 99 (Tex.App.-Austin 2003), this Court found that the notice was not "made" by the county attorney and that this Court lacked jurisdiction to entertai......
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State v. Palmer
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State v. Blankenship, No. 1998/99/00/01/02/03/04/05-03 (TX 10/6/2004), 1998/99/00/01/02/03/04/05-03.
...appeal. A City of Austin municipal court convicted appellee of several violations of two city ordinances. See State v. Blankenship, 123 S.W.3d 99, 101 (Tex.App.-Austin 2003). A county court reversed that decision and the State appealed. See id. The City timely filed a notice of appeal and a......