Opinion
No. 05-03-01223-CR
Opinion issued May 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-81430-95. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
OPINION
Kristen Iovanelli appeals her 1998 conviction for harassment. In eight points of error, appellant contends the trial judge granted her pretrial motion to quash and all proceedings occurring thereafter are consequently void. For the reasons that follow, we disagree and affirm the trial court's judgment.
Jurisdiction
Initially, the State argues this Court lacks jurisdiction to address appellant's complaints because "the substance of her appeal does not challenge the denial of a written motion filed before trial." In support of this argument, the State relies, in part, on appellate rule 25.2. The version of rule 25.2 in effect at the time appellant filed her March 4, 1998 notice of appeal provided that if the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:(A) specify that the appeal is for a jurisdictional defect;
(B) specify that the substance of the appeal was raised by written motion filed and ruled on before trial; or
(C) state that the trial court granted permission to appeal.Tex.R.App.P. 25.2 (Tex.Crim.App. 1997, amended 2002) (emphasis added). Contrary to the State's assertion, nothing in the rule states a defendant may challenge only the denial of a written motion. Reading this into the rule would preclude a defendant from appealing any favorable ruling on a pretrial motion filed by the State. We decline to limit a defendant's appeal when the plain language of the rule does not mandate we do so. In support of its jurisdictional claim, the State also cites the court of criminal appeals holdings in Woods v. State, 68 S.W.3d 667 (Tex.Crim.App. 2002) and Cooper v. State, 45 S.W.3d 77 (Tex.Crim.App. 2001). We find these cases to be inapposite. In Woods, the appellant filed an amended notice of appeal alleging lack of jurisdiction, the extra-notice allegation allowed under the version of rule 25.2(b)(3) in effect at the time of his appeal. Woods's brief, however, did not raise a jurisdictional claim. Rather, he raised claims not cognizable under rule 25.2(b)(3). Woods, 108 S.W.3d at 316. Because his claims did not fall within the confines of the rule 25.2(b)(3) categories, the court of criminal appeals concluded the appellate court erred in addressing them. Woods, 108 S.W.3d at 316. In Cooper, the court noted that although appellant's amended notice of appeal stated the "substance of this appeal was raised by written motion and ruled on prior to trial," the appellant's issues did not have anything to do with pretrial motions. Instead, they challenged the voluntariness of his guilty plea. Cooper, 45 S.W.3d at 78. The Cooper court concluded rule 25.2 "does not permit the voluntariness of [a] plea to be raised on appeal" and affirmed the appellate court's dismissal of the appeal for want of jurisdiction. Cooper, 45 S.W.3d at 83. In this case, appellant filed a pretrial motion to quash which she claims was granted by the trial judge. Her points of error complain of the State's and the trial judge's actions following the ruling on her written pretrial motion. Because appellant's complaints stem from the trial judge's purported ruling on her pretrial written motion to quash the indictment and rule 25.2 provides that a defendant may appeal matters "raised by written motion filed and ruled on before trial," we conclude we have jurisdiction to address her complaints. See Griffin v. State, 145 S.W.3d 645, 648-49 (Tex.Crim.App. 2004) ("Jurisdictional matters may be raised on appeal if they fit within the limited right of appeal granted by the legislature . . ."). Therefore, we now address the merits of appellant's contentions.
Motion to Quash
In eight points of error, appellant generally contends the trial judge granted her motion to quash and, therefore, it was error for (i) the State to continue prosecuting her and (ii) the trial judge to proceed further with the case. After reviewing the record, we conclude the trial judge did not grant appellant's motion to quash and that her complaints about the State's and trial judge's actions lack merit. In criminal cases, a defendant has a right to appeal under article 44.02 of the code of criminal procedure. See Tex.R.App.P. 25.2(a)(2) (citing Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon Supp. 2004-05)). Rule 25.2 provides that the trial judge "shall enter a certification of the defendant's right of appeal in every case" in which the judge "enters a judgment of guilt or other appealable order." Tex.R.App.P. 25.2(a)(2) (emphasis added). A judge "enters" an order when he signs an order. See State v. Shaw, 4 S.W.3d 875, 877 (Tex. App-Dallas 1999, pet. dism'd XXX). (citing State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex.Crim.App. 1991) (holding that "entered by the court" encompassed the signing of an order by the trial judge)). In this case, the record does not contain a signed order granting the motion to quash the indictment. Both the State and appellant admit there is no signed order granting the motion to quash. Because there is no signed order, the trial judge did not "enter" an order, and the motion to quash the indictment was not granted. It follows that neither the State nor the trial judge acted inappropriately in proceeding with the case. In reaching this decision, we reject appellant's claim that the trial judge orally granted her motion to quash during a hearing on November 20, 1997. A review of the reporter's record from that date shows the trial judge held a hearing on appellant's motion. At the conclusion of the hearing, the following occurred:DEFENSE: Has the Court instructed the State to amend their charging instrument to allege —
JUDGE: I'll allow the State to do it orally. If you would please, write out-if you would, please-well, if you don't mind, make the written modification, and I'll tape it here. That leave[s] us, Mr. Danforth, with you being in the position of securing a 10-delay on this if you don't want to go to trial on what we've got here.
DEFENSE: Your Honor, we're set for trial in January, We're just-this is all preliminary —
JUDGE: You're set for trial in January? Then, yeah, six calls over this period of time.
STATE: Judge, I wrote down what you said. Is there any way that we can get a formal Order so that I will have specifically —
JUDGE: If you will file a Motion to Amend, first of all I will deny the Motion to Quash, subject to-and I'll note that on the docket sheet-the Motion to Quash is denied subject to the State amending to allege the circumstances which —
DEFENSE: The method and means by which the offense was committed.
JUDGE: The methodology by which the offense was committed. So the Motion is denied, contingent upon the State amending, If the State doesn't amend, the Motion will be granted. I assume it's the State's intention to amend.
STATE: Yes, sir.From this excerpt, it is clear that the trial judge did not definitively rule on appellant's motion to quash. Rather, he told the parties what he intended to do at a later date. On January 12, 1999, the sitting trial judge referred the case to another trial judge "for ruling on the Motion to Quash." The second trial judge orally denied the motion to quash, and the case proceeded to trial. The record reflects the trial judge did not orally grant, nor did he sign an order granting appellant's motion to quash. Because the indictment was not quashed, the State was not legally precluded from proceeding with its case against appellant, nor did the trial judge err in allowing the case to proceed. As all eight of appellant's points of error are premised on the assumption that the trial judge granted the motion to quash and we have concluded he did not grant the motion, her points lack merit. We overrule points of error one through eight. We affirm the trial court's judgment.