Opinion
No. 13-05-268-CR
Memorandum Opinion Delivered and Filed January 3, 2006. Dissenting Memorandum Opinion delivered and Filed April 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Court at Law No. 3 of Cameron County, Texas.
Before Justices YAÑEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
C. Douglas Wright was acquitted of driving while intoxicated. The State attempts to appeal the judgment of acquittal. We dismiss the appeal for want of jurisdiction.
By statute, the right of appeal afforded to the State is limited. See TEX. CODE CRIM. PROC. ANN. art. 44.01 (Vernon Supp. 2004-05). Specifically, article 44.01 of the Texas Code of Criminal Procedure provides that the State may appeal orders that:
(1) dismiss an indictment, information or complaint or any portion of an indictment, information or complaint;
(2) arrest or modify a judgment;
(3) grant a new trial;
(4) sustain a claim of former jeopardy; or
(5) grant 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.
See id. art. 44.01(a). The State may also appeal a sentence on the ground that it is illegal and may appeal a ruling on a question of law if the defendant is convicted and appeals the judgment. See id. art. 44.01(b), (c).
On its face, the judgment in the instant case does not fall within one of the above-listed categories from which the State is permitted to appeal. The Clerk of the Court notified the State that, upon review of the clerk's record, it appeared that the judgment from which the appeal was taken was not an appealable judgment. The Clerk advised the State that if the defect was not cured within ten days from the date of receipt of this Court's letter, the appeal would be dismissed. See TEX. R. APP. P. 42.3. In its response, the State does not argue that the instant case falls within one of the categories of appealable orders listed in article 44.01, but rather argues that the trial court lacked authority to enter the judgment of acquittal. The State's argument fails to bring this appeal within the purview of the limited rights to appeal recognized by statute.
A verdict of acquittal may not be reviewed. State v. Savage, 933 S.W.2d 497, 500 (Tex.Crim.App. 1996). This is so "regardless of how egregiously wrong the verdict may be." Id. (quoting State v. Moreno, 807 S.W.2d 327, 332 n. 6 (Tex.Crim.App. 1991)); Strong v. State, 87 S.W.3d 206, 213 (Tex.App.-Dallas 2002, pet. ref'd). Accordingly, this appeal is DISMISSED.
CONCURRING MEMORANDUM OPINION
Respectfully, I agree with the majority that the State has not shown that its appeal is authorized under the plain language of article 44.01. TEX. CODE CRIM. PROC. ANN. art 44.01 (Vernon Supp. 2004-05). Because it is error to focus on the merits of a State's appeal in determining whether it is statutorily authorized, I concur with the decision to dismiss. See State v. Gutierrez, 129 S.W.3d 113, 115 (Tex.Crim.App. 2004). However, because my review is limited to the jurisdictional question, I express no opinion on the reviewability of an acquittal.
DISSENTING MEMORANDUM OPINION ON MOTION FOR REHEARING
In the State's direct appeal, by separate opinions, we decided that, essentially, the State had not shown its appeal is authorized. On motion for rehearing, the State asserts that the appealed-from order is in actuality either an order arresting judgment or an order granting a new trial and, thus, appealable under article 44.01. See Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2005).
The State is entitled to appeal an order of a court in a criminal case if the order arrests or modifies a judgment or grants a new trial. TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(2), (3) (Vernon Supp. 2005).
Our review is limited to jurisdictional questions. Wooldridge v. State, 158 S.W.3d 484, 485 (Tex.Crim.App. 2005); see State v. Gutierrez, 129 S.W.3d 113, 115 (Tex.Crim.App. 2004) (holding that it is error to focus on merits of State's appeal in determining whether State's appeal is statutorily authorized). Another panel of this Court recently found appellate jurisdiction on grounds that entry of an instructed verdict served as "both a functional acquittal [of the greater charged offense] and grant of a new trial." See State v. Cook, No. 13-04-533-CR, 2006 Tex. App. LEXIS 460, 7-8 (Tex.App.-Corpus Christi, January 19, 2006) (not designated for publication). Accordingly, guided by the rationale in Cook, I agree with the State that, in this case, the trial court's entry of an acquittal was the functional equivalent of granting a new trial. See id. Because the State is statutorily authorized to appeal the grant of a new trial, I conclude we have jurisdiction. TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(3). Because the State's appeal is tied to its request for extraordinary relief, I would grant the motions in both proceedings.