State v. Muller

• Decision Date: 01 April 1992
• Docket Number: No. 160-91,160-91
• Citation: 829 S.W.2d 805
• Parties: The STATE of Texas, Appellant, v. Robert A. MULLER, Appellee.
• Court: Texas Court of Criminal Appeals

Page 805

829 S.W.2d 805

The STATE of Texas, Appellant, v. Robert A. MULLER, Appellee.

No. 160-91.

Court of Criminal Appeals of Texas En Banc.

April 1, 1992.

Rehearing Denied May 20, 1992.

J. Gary Trichter, Kimberly De La Garza, Mike DeGeurin, Brian C. Wice, Houston, for appellee.

John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr. and Joe King, Asst. Dist Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellee was charged by information with operating a motor vehicle in a public place while intoxicated. Tex.Rev.Civ.Stat. art. 67011-1 et seq. Appellee filed a pre-trial motion to suppress an intoxilyzer breath test result and to strike a paragraph of the state's information. The trial court granted appellee's motion and the State timely filed a notice of appeal, pursuant to Tex.Code Crim.Proc. art. 44.01. ¹ More than eight months after the original notice of appeal was filed, the State filed an amended notice of appeal with permission of the court of appeals. The First Court of Appeals reversed the ruling of the trial court, ordered the information reinstated and remanded the case for trial. State v. Muller, 798 S.W.2d 315 (Tex.App.--Houston [1st Dist.] 1990). We granted the appellee's petition for discretionary review to determine: (1) whether the State's original notice of appeal complied with Article 44.01, and (2) if not, whether the State was entitled to cure the defective notice by filing an amended notice of appeal. We will reverse.

I.

On appeal to the First Court of Appeals, appellee argued that the State's original notice of appeal, although timely filed on February 17, 1989, was defective because it had not been signed by the elected District Attorney of Harris County, John B. Holmes, Jr., as required by Article 44.01. ² At oral argument before the court of appeals, the State identified the signature on the notice as that of the first assistant to Holmes.

On October 30, 1989, some eight months after the original filing of the notice of appeal, the State filed both (1) a motion for leave to file an amended notice of appeal, and (2) an amended notice of appeal. ³ The court of appeals granted the State's motion and ordered the record supplemented with the amended notice of appeal. The court of appeals then reversed the judgment of the trial court and ordered the information reinstated. This first opinion was subsequently withdrawn and a second opinion issued on appellee's motion for rehearing. State v. Muller, 798 S.W.2d 315 (Tex.App.--Houston [1st Dist.] 1990).

In its opinion on rehearing, the court of appeals held that when the State filed the amended notice of appeal it cured any defect in the original notice. Muller, supra at 317-18. The court of appeals then assumed jurisdiction over the case and again ordered the information reinstated and remanded the case for trial. Id. at 318. En route to its decision, the court of appeals held that Article 44.01 does not require the "prosecuting attorney," as designated therein, to personally sign the written notice of appeal:

We find it improbable that the legislature intended that the State may only appeal if, but only if, the district attorney personally signs the notice of appeal. There are many occasions when the district attorney may be compelled to be "out of state," or "at other places," and is not physically present to sign the notice of appeal. It is, therefore, logical that some other "prosecuting attorney" would be authorized to sign the name of the district attorney, or that an amendment of that notice of appeal could be filed with the court to "show" the district attorney's intent and consent, as occurred in this cause.

Muller, supra at 318.

Justice Michol O'Connor filed a written dissent on the issue of amending the notice of appeal, arguing that because the prosecuting attorney did not sign the original notice of appeal, and because the certification required by Article 44.01(a)(5) was not made until nine months after the judgment, the State did not perfect its appeal and the court of appeals did not have jurisdiction over the case. Id. at 326.

II.

The arguments of the parties can be distilled as follows. First, appellee contends that the notice of appeal filed by the State was invalid because Article 44.01 requires that a State's notice of appeal must manifest "some indication that [the prosecuting attorney] intended to appeal." Appellee argues that:

Clearly, the requirement that the district attorney himself initiate and personally certify the appeal is legislatively mandated to make the State's appellate process not only a hard one, but also, a limited one. Here, the limitation was to require the district attorney to personally decide to appeal a case on the front end and not after the appeal had been filed and the 15 day filing period expired.

Appellee further argues that the provisions of Article 44.01 are specific limitations on the State's substantive right to appeal. Thus, claims appellee, the State's noncompliance with the provisions of Article 44.01 deprives an appellate court of jurisdiction to hear the case. Appellee asserts that because Article 44.01 is an embodiment of the State's substantive right to appeal, it would be error to allow the Rules of Appellate Procedure to enlarge this substantive right by circumventing the clear limitations set forth in Article 44.01.

The State counters that because Article 44.01 does not expressly require the signature of the prosecuting attorney to appear on an original notice of appeal, it would be disingenuous to read such a requirement into the statute. The State's argument, essentially, is that, when read as a whole, the language of Article 44.01 does not require the personal signature of the prosecuting attorney. The State asserts that even if subsection (a)(5) were construed to require a written certification by the prosecutor, this requirement should not be extended to appeals brought under any other subsection. The State avers that section (d) refers only to the time within which an appeal must be made, and has nothing to do with requiring the prosecuting attorney to personally make the appeal.

The State then asserts that the legislative intent supports its construction of Article 44.01. The State further argues that nothing in Article 44.01 indicates that it is intended to address appellate jurisdiction. Finally, the State contends that even if Article 44.01 requires the prosecuting attorney's signature, the Texas Rules of Appellate Procedure provide a means for correcting and amending defects in the original notice of appeal, whether those defects are of form or substance.

III.

In deciding whether the State's original notice of appeal was defective, we are called on to interpret Article 44.01 with regard to the specific procedures the State must follow to properly appeal an adverse ruling of a trial court. This Court's recent decision in Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991), delimits with great specificity the appropriate role of the courts in construing statutes. In Boykin, we held that when interpreting a statute an appellate court should "necessarily focus ... on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment." Id. When the literal text of a statute is clear, an appellate court must give effect to the statute's plain language and purposely eschew reliance on its legislative history. Boykin, supra at 785.

It is only when the literal text of the statute is either unclear or would lead to results so absurd that the Legislature could not possibly have intended them, that the courts should then resort to legislative history or other extraneous means to assist them in their interpretation of a statute. Id.; see also, Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App.1980).

IV.

With regard to the instant case, our established method of statutory construction makes it manifestly apparent that if the literal text of Article 44.01 is clear on its face, this Court will not strain its plain meaning in order to give the statute a "desirable" reading. See, e.g., Smith v. State, 789 S.W.2d 590 (Tex.Cr.App.1990). Thus, we will delve into the labyrinth of legislative history only if our examination of the literal text of Article 44.01 discloses some obfuscation or patent ambiguity. Because, on its face, the literal text of Article 44.01 is clear, we will construe the statute according to its plain meaning and dispose of this case without reliance on its legislative history. ⁴

We begin our analysis with the literal language of the relevant sections of Article 44.01 and attempt to discern its "fair, objective meaning ... at the time of its enactment." Boykin, supra at 785. In other words, we focus on the meaning a typical legislator would have given the specific language of the statute at the time of its enactment.

We begin with section (i) of Article 44.01, which defines the term "prosecuting attorney" as used in the article:

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.

Because it would have been difficult for the Legislature to have more clearly excluded assistant prosecutors from its definition of "prosecuting attorney," we interpret section (i) to mean what it plainly states on its face: a "prosecuting attorney," as used in Article 44.01, does not include under any circumstance an assistant prosecutor or other subordinate.

Our next determination is which of the various actions contemplated by Article 44.01 are required to be personally authorized by the "prosecuting attorney" and which actions, if any, may be delegated to...