State v. Riggs

• Decision Date: 28 October 1999
• Citation: 4 S.W.3d 453
• Parties: (Tex.App.-Austin 1998) The State of Texas, Appellant, v. Linda K. Rollins, Appellee. The State of Texas, Appellant, v. Jimmy Ernest Riggs, Appellee. NO. 03-99-00506-CR, NO. 03-99-00507-CR.
• Court: Texas Court of Appeals

Page 453

4 S.W.3d 453 (Tex.App.-Austin 1998)

The State of Texas, Appellant, v. Linda K. Rollins, Appellee.

The State of Texas, Appellant, v. Jimmy Ernest Riggs, Appellee.

NO. 03-99-00506-CR, NO. 03-99-00507-CR.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN.

October 28, 1999.

FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NOS. 17,875 & 18,885, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING.

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel.

Marilyn Aboussie, Chief Justice.

The district court granted motions by appellees Linda K. Rollins and Jimmy Ernest Riggs to dismiss the indictments pending against them for want of a speedy trial. The State seeks to appeal the dismissals. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 1999). Before us are motions by the State to extend the time for perfecting appeal.

"The prosecuting attorney may not make an appeal under [article 44.01(a)(1)] later than the 15th day after the date on which the order . . . to be appealed is entered by the court." Id. art. 44.01(d). The date an appealable order is "entered by the court" has been held to mean the date the order is signed by the court. See State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992); State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex. Crim. App. 1991).¹ Article 44.01(d) is more than a mere procedural deadline; it is a substantive limit on the State's authority to appeal. State v. Muller, 829 S.W.2d 805, 812 (Tex. Crim. App. 1992); State v. Demaret, 764 S.W.2d 857, 858 (Tex. App.-Austin 1989, no pet.). On the sixteenth day, the State's authority to appeal under the statute ceases to exist and may not be revived by a motion for extension of time. Demaret, 764 S.W.2d at 858.

The motions to dismiss were heard by the district court on July 29, 1999. At the conclusion of the hearing, the court announced that the motions were granted. Written orders granting appellees' motions to dismiss state that they were "[s]igned this 29th day of July, 1999." The State's motions for extension of time state that it "believes the order[s were] signed sometime between the afternoon of August 12, 1999 and the morning of August 13, 1999." Attached to each motion is an affidavit by an employee of the Milam County district attorney stating that she made several trips to the district clerk's office to obtain copies of the signed orders, that the orders were unsigned as of August 9, that she was told on August 12 that the orders had been given to the district judge to sign, and that the signed orders were found by the clerk the following day. The State filed its notices of appeal on August 26, 1999, more than fifteen days after July 29 but within fifteen days following August 12.

Because the timeliness of the State's notices of appeal depends on the date the dismissal orders were signed, and because that date was in dispute, this Court abated the appeals for a hearing to determine the date of signing, and for findings of fact thereon. The district court found that it signed the dismissal orders on July 29, 1999, immediately after announcing its decisions in open court, and that the signed orders were at all times in the files maintained by the Milam County district clerk. The testimony at the hearing supports these findings. Briefly summarized, the testimony reflects that unsigned orders were attached to the motions to dismiss when filed by appe...