State v. Moreno

• Decision Date: 10 April 1991
• Docket Number: No. 818-89,818-89
• Citation: 807 S.W.2d 327
• Parties: The STATE of Texas, Appellant, v. Lorenzo C. MORENO, Appellee.
• Court: Texas Court of Criminal Appeals

Page 327

807 S.W.2d 327

The STATE of Texas, Appellant, v. Lorenzo C. MORENO, Appellee.

No. 818-89.

Court of Criminal Appeals of Texas,

En Banc.

April 10, 1991.

W.J. Sames, Corpus Christi, for appellee.

Carlos Valdez, County Atty., Corpus Christi, Robert Huttash, State's Atty., and Matthew W. Paul, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON THE STATE'S PETITIONS FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

The issues involved in this case concern the parameters of the State's power to appeal from a trial court's order.

The State charged Lorenzo C. Moreno with prostitution alleging in its information that he "knowingly agree[d] to engage in sexual conduct, to wit: deviate sexual intercourse with R. Vela for a fee, to wit: $10.00 payable to said R. Vela, said deviate sexual intercourse being the contact of Lorenzo C. Moreno's mouth with R. Vela's penis." Moreno filed a motion to quash the information alleging that the term "agree" should be defined in greater detail. He wrote in his motion that if "the same is by written agreement, or by conduct, or by orally spoken words, or by any combination, the same should be alleged and further if by words, such words should be alleged so as Defendant may know what words are intended to constitute the element 'agreed.' " In his motion, Moreno prayed "that the information be quashed and the cause dismissed." After a hearing on the motion, the trial court agreed that the information should be quashed. The order which was drawn up by defense counsel contained the language "and this cause is dismissed." The trial court, however, struck through this language before signing the order such that it read: "THEREFORE, IT IS HEREBY ORDERED AND DECREED that defendant's Motion to Quash is hereby Granted, the Complaint and Information are hereby quashed ." ¹ The State appealed.

Relying upon Hancox v. State, 762 S.W.2d 312 (Tex.App.--Fort Worth 1988, pet. ref'd), the Court of Appeals held that it did not have jurisdiction to entertain the State's appeal. Specifically, the Court of Appeals held that:

"Under some circumstances, the granting of a motion to quash might be tantamount to dismissal of the charging instrument. We are not presented with such a circumstance here.

"In the present case the trial court's order required the State to give appellee additional notice of the allegation 'agree.' That action cannot be construed as one which dismisses the information or any portion of it. The State had, and still has the right to amend the information to provide the notice appellee complained of in his motion to quash. This is because the legislature granted the right to amend [the] information [or] indictment on matter[s] of form or substance in enacting articles 28.09 and 28.10 of the Texas Code of Criminal Procedure (Vernon Pamphlet 1988). Since the trial court did not order the information dismissed and the State can cure the alleged defect in form by amendment and continue its prosecution, we are unwilling to hold that the granting of this motion to quash constitutes a dismissal of the information. Accordingly, we conclude that article 44.01 does not allow the State to appeal the trial court's ruling." State v. Moreno, 769 S.W.2d 661, 662 (Tex.App.--Corpus Christi, 1989).

Thus, the Court relied upon the fact that the trial court marked through language in the order that "dismissed" the indictment and noted that the State was not denied the opportunity to amend the information or that the State refused to amend. In short, the State was required to attempt to amend the charging instrument, under Article 28.01, V.A.C.C.P., as a predicate to its right to appeal. We cannot agree with the Court of Appeals' holding.

Article 44.01, V.A.C.C.P., provides, in pertinent part, that the State is entitled to appeal from a trial court's order in a criminal case if such "dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint." (Emphasis added.) The issue revolves around what is meant by the term "dismisses." When the Legislature enacted Article 44.01, it employed neither the language used in the Texas Code of Criminal Procedure nor the terminology commonly used in Texas to question the validity of indictments and informations. ² Notwithstanding this abstruseness, the Legislature made abundantly clear in the Bill Analysis that it intended to extend to the State appellate powers akin to those that the United States Congress had extended to the federal government in a criminal case. ³ Consequently, we will look to the federal government's powers to appeal from an order "dismissing an indictment" in a criminal case to understand the parameters of the State's appellate powers under Article 44.01.

Based upon the common-law rule that the sovereign had no right to appeal an adverse criminal judgment, the Supreme Court early held that the government could not take an appeal in a criminal case without express statutory authority. United States v. Sanges, 144 U.S. 310, 313-318, 12 S.Ct. 609, 610-612, 36 L.Ed. 445 (1892) and cases cited therein. Fifteen years later, in 1907, Congress passed the Criminal Appeals Act and for the first time conferred jurisdiction on the Supreme Court to consider appeals by the government in criminal cases. See 34 Stat. 1246. ⁴

Interpretation of the Act, however, proved to be difficult for the Supreme Court. Pursuant to the common-law rules, the Court held that the "exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified." United States v. Borden Co., 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181 (1939). The Court deemed such appeals as "something unusual, exceptional, not favored." Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967), quoting from Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442 (1957). See also United States v. Keitel, 211 U.S. 370, 399, 29 S.Ct. 123, 132, 53 L.Ed. 230 (1908); United States v. Dickinson, 213 U.S. 92, 103, 29 S.Ct. 485, 488, 53 L.Ed. 711 (1909). Because the Act was construed in accordance with the common-law, the rules regulating the government's power to appeal became highly technical. The Supreme Court on a number of occasions was forced to struggle with delineating its and the courts of appeals' jurisdiction under the Act. See, e.g., United States v. Weller, 401 U.S. 254, 91 S.Ct. 602, 28 L.Ed.2d 26 (1971); United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960). Eventually, the Act provoked the Supreme Court to declare:

"Clarity is to be desired in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of the dispute settlement, but on simply deciding whether a court has the power to hear a case. When judged in these terms, the Criminal Appeals Act [18 U.S.C. § 3731] is a failure. Born of compromise, and reflecting no coherent allocation of appellate responsibility, the Criminal Appeals Act proved a most unruly child that has not improved with age. The statute's roots are grounded in pleading distinctions that existed at common law which, in most instances, fail to coincide with the procedural categories of the Federal Rules of Criminal Procedure. Not only does the statute create uncertainty by its requirement that one analyze the nature of the decision of the District Court in order to determine whether it falls within the class of common-law distinctions for which an appeal is authorized, but it has also engendered confusion over the court to which an appealable decision should be brought." United States v. Sisson, 399 U.S. 267, 308, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970) (footnotes omitted) (plurality opinion).

Responding to the Supreme Court's criticisms, Congress, with the specific intent of broadening the government's appellate powers, disposed of the Act in 1971 and replaced it with another. See Arizona v. Manypenny, 451 U.S. 232, 247 n. 24, 101 S.Ct. 1657, 1667 n. 24, 68 L.Ed.2d 58 (1981). Enacted as part of Title III of the Omnibus Crime Control Act of 1970, Section 3731 of Title 18 of the United States Code now provides, in pertinent part:

"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

"An appeal by the United States shall lie to a court of appeals from a decision or order of a district court[ ] suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the preceding.

"An appeal by the United States shall lie to a court of appeals from a decision of order, entered by a district court of the United States, granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release.

"The appeal shall in all such cases be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.

"The provisions of this section shall be liberally construed to effectuate its purposes."

By providing that the statute "shall be liberally construed to effectuate its purposes," the new statute abrogated the common-law's adherence to strict interpretation...