State v. Redus

• Decision Date: 08 October 2014
• Docket Number: PD–0069–14.,Nos. PD–0067–14,s. PD–0067–14
• Citation: 445 S.W.3d 151
• Parties: The STATE of Texas v. David Colt REDUS, Appellee and The State of Texas v. Jose Guadalupe Zermeno, Appellee.
• Court: Texas Court of Criminal Appeals

445 S.W.3d 151

The STATE of Texas

v.David Colt REDUS, AppelleeandThe State of Texas

v.Jose Guadalupe Zermeno, Appellee.

Nos. PD–0067–14

PD–0069–14.

Court of Criminal Appeals of Texas.

Oct. 8, 2014.

Jeff Starnes, Paris, TX, for the Appellee.

Jeff Shell, Assistant District Attorney, Rockwall, TX, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

COCHRAN, J., delivered the opinion of the unanimous Court.

In these two consolidated cases, the trial judge granted the defendants' motions to suppress evidence. The State filed a notice of appeal in each case, but the court of appeals dismissed the appeals, concluding that it did not have jurisdiction because the elected district attorney failed to timely file the statutorily required certification that the appeal was not taken for delay and that the evidence suppressed was of “substantial importance” to the case.¹ The State filed for discretionary review, asking whether the court of appeals's interpretation of the certification requirement was “hypertechnical” and contrary to statutory construction.² We conclude that it was neither. As we explained in State v. Riewe,³ the district attorney's certification is necessary to confer jurisdiction on the court of appeals. We, therefore, affirm the judgments of the court of appeals in these cases.

I.

David Redus was charged with intoxication manslaughter; Jose Zermeno was charged with a third-time, felony DWI offense. In both cases, the trial judge declared that the provisions of Chapter 724 of the Texas Transportation Code mandating a nonconsensual blood draw were unconstitutional when the blood was drawn without a warrant. Therefore, he suppressed the blood-alcohol evidence obtained without consent or warrant. In both cases, the State timely filed a notice of appeal that stated,

Pursuant to TRAP Rule 25.2(a)(1) and Tex.Code Crim. Proc. Art. 44.01(a) the State of Texas is permitted to appeal an order that ... (5) “grants a motion to suppress evidence, a confession or an admission, if jeopardy has not attached in this case and if the prosecuting attorney certifies to the trial court that the appeal is not take[n] for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case.

The document was signed by the elected county and district attorney.

The court of appeals held that the above paragraph was not an “appropriate certification” by the district attorney because “[a] recitation of the pertinent Code provision does not amount to a certification, as required by Article 44.01(a)(5).”⁴

The State petitioned this Court to review the lower court's decision, arguing that it was “contrary to statutory construction” because “(1) the opinion was a narrow and hypertechnical interpretation or construction; (2) the opinion has lead to ‘absurd consequences' and (3) the opinion added a ‘statutory barrier’ that was contrary to precedent from the United States Supreme Court.”⁵

II.

It was not until 1987 that the State had any right to appeal an adverse legal ruling in a Texas criminal case.⁶ By enacting Article 44.01 of the Code of Criminal Procedure, the Texas Legislature recognized the need to balance the rights of the defendant to a fair and speedy trial with the legitimate rights of the State and public to accurate legal rulings.⁷

One of the arguments that was made against granting the State a right to appeal pretrial rulings was that “it would permit an interlocutory appeal for the government while the defendant is only permitted to appeal from a final judgment.”⁸ But the statute was drafted so that, as a practical matter, the State would appeal pretrial suppression issues only when the trial judge's ruling effectively put an end to the case or “when a point of law is deemed so crucial and so likely to recur that an adverse ruling, while not wholly destructive to the particular case, is devastating to the legal system or the concept of fair play.”⁹ Before enacting Article 44.01, the Legislature was informed,

While it is possible that the State might file frivolous appeals solely for the purpose of harassment and oppression, the required certification by the District Attorney would mandate a careful appraisal of the likelihood of success and necessity for review before the appeals are undertaken.¹⁰

Thus, as enacted, Article 44.01(a)(5) provides that the State is entitled to appeal an order in a criminal case if that order

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.¹¹

Several requirements must be met before the State may take an interlocutory appeal: (1) the trial judge's ruling is made pretrial before jeopardy has attached; (2) the elected prosecutor¹² personally certifies to the trial court that (a) the appeal is not taken to delay the trial, and (b) the suppressed evidence is of “substantial importance” to the case. These requirements are to ensure that prosecutors do not appeal trial judges' rulings indiscriminately and clog up the appellate courts while leaving the defendant under the continuing cloud of criminal charges.¹³ The elected prosecutor puts his reputation and integrity, as well as his signature, on the line in filing notice of an interlocutory appeal.¹⁴

In analyzing Article 44.01(a)(5), we have explained that the elected prosecutor's personal certification is necessary to confer jurisdiction on the appellate court.¹⁵

However, the defendant may not challenge the verity of the prosecutor's certification of the “substantial importance” of the evidence suppressed because the plain language of the statute neither requires nor permits it.¹⁶ The prosecutor's promise of importance is sufficient.

Further, the statute requires only a written and signed assertion of the two necessary facts—that the appeal is not taken for delay and that the evidence is of “substantial importance”; no special form is necessary and the required assertions of fact may be contained within the text of the notice of appeal.¹⁷ Usually the certification begins with the phrase, “I, John Doe, the District Attorney of XYZ County, certify that ...” but other forms are equally acceptable as long as the elected prosecutor vouches for these two facts.¹⁸ It is a simple, but solemn, undertaking.

We have also held that substantive defects in the State's notice of appeal cannot be corrected by an untimely amendment.¹⁹ Any amendment must be made before the expiration of the original time to file notice of appeal, that is, within twenty days after entry of the trial judge's ruling.²⁰ Because the prosecuting attorney's certification is jurisdictional, the State's appeal must be dismissed for want of jurisdiction if the proper certification is not filed within twenty days after the trial court enters its order suppressing evidence.²¹

With that general background, we turn to the present cases.

III.

In these two cases, the elected district attorney signed the notice of appeal, but he did not certify, or vouch for, the required facts that the appeal was not made for purposes of delay and that the evidence suppressed was of substantial importance to the case. Instead, the notice of appeal simply quotes the pertinent statutory provision and contains the district attorney's signature at the bottom.

But a certification is defined as “the formal assertion of some fact.”²² To certify something is “[t]o authenticate or vouch for a thing in writing. To attest as being true or as represented.”²³ A “certificate” by a public officer “is a statement written and signed, but not necessarily sworn to, which is by law made evidence of the truth of the facts stated for all or for certain purposes.”²⁴ For example, an appellate brief must contain a certificate of service that states the person's compliance with certain facts of service and is signed by the person who makes the service.²⁵ It is not good enough to simply quote the applicable appellate rule and then sign below that quotation. The signer is, in effect, promising that he has performed certain acts—giving the date and manner of service, setting out the name and address of each person served, and the names of each person's attorney, if applicable.²⁶

The certification of the State's appeal carries the same serious purpose.²⁷ But here, the district attorney did not vouch for any fact. He simply signed a document that quoted the statute. That quotation was preceded by the statement that the State is “permitted” to appeal a suppression order. Indeed it is, but only if it fulfills all of the necessary requirements, including certification. The State argues that, in quoting the statute, the district attorney “inferentially” vouched for the necessary facts. If certifications are legally binding when they merely quote a statute and then that quotation is signed, then we could accept the State's argument. We certainly agree with the State that “[a] person's right to appeal a civil or criminal judgment should not depend upon tracking through a trail of technicalities,”²⁸ but we are unable to find any case suggesting that the State's certification of a pretrial suppression motion is just a “technicality” or that quoting the statute satisfies the certification requirement. Although the government's certification of appeal in federal courts is not jurisdictional, it serves the same purpose as it does in Texas courts:

The certification requirement imposed by Section 3731 serves the very important purpose of ensuring that the prosecutor carefully analyzes the case before deciding to appeal. Certification to the district court forces the prosecutor to represent that she has, in fact, thoroughly and conscientiously considered the decision to appeal. By forcing the prosecutor to take these pre-appeal steps, Section 3731's certification

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