Opinion
01-22-00868-CR
12-08-2022
THE STATE OF TEXAS, Appellant v. JANET BENNETT, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the County Court at Law Waller County, Texas Trial Court Case No. CC18-253
Panel consists of Justices Goodman, Hightower, and Guerra.
MEMORANDUM OPINION
PER CURIAM.
In this interlocutory appeal, appellant, the State of Texas, seeks to challenge the trial court's October 14, 2022 order granting the pretrial motion to suppress filed by appellee, Janet Bennett. The State filed its notice of appeal from the trial court's October 14, 2022 order on November 7, 2022. Thereafter, on November 28, 2022, the State filed a motion to extend its deadline to file its notice of appeal.
We deny the State's motion to extend and dismiss the appeal for lack of jurisdiction.
According to the State, on March 15, 2018, appellee was charged with the misdemeanor criminal offense of driving while intoxicated. See Tex. Penal Code Ann. § 49.04. On or around May 15, 2019, appellee filed a "Motion to Suppress Evidence of Drugs in DWI Prosecution." The trial court held two hearings on appellee's motion to suppress, including hearings on April 6, 2022 and October 12, 2022. Then, on October 14, 2022, the trial court entered an order granting appellee's motion to suppress. The State filed its notice of appeal from the trial court's October 14, 2022 order on November 7, 2022.
According to the State, appellee also filed a "Motion to Suppress Illegal Arrest" on or around June 18, 2019. However, pursuant to its notice of appeal, the State only seeks to challenge the trial court's October 14, 2022 order granting appellee's "Motion to Suppress Evidence of Drugs in DWI Prosecution."
To perfect an appeal in a criminal case and invoke an appellate court's jurisdiction, the appellant must timely file a notice of appeal. See Tex. R. App. P. 25.2(a); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see also State v. Sanavongxay, 407 S.W3d 252, 258 (Tex. Crim. App. 2012). Where the appellant is the State, the notice of appeal must also comply with the requirements of Texas Code of Criminal Procedure article 44.01, which provides that the State may appeal certain adverse trial court rulings, including a trial court order "grant[ing] a motion to suppress evidence." See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5); Tex.R.App.P. 25.2(a). However, the State is required to file its notice of appeal from such an order within twenty days of the date the order is entered by the trial court. See Tex. Code Crim. Proc. Ann. art. 44.01(d); see also Tex. R. App. P. 26.2(b). Absent a timely filed notice of appeal, this Court cannot exercise jurisdiction over an appeal. See Tex. R. App. P. 26.2(b); Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Olivo, 918 S.W.2d at 522; Lair v. State, 321 S.W.3d 158, 159 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd).
Here, because the trial court's order was entered on October 14, 2022, the State's notice of appeal was due on or before November 3, 2022. See Tex. R. App. P. 26.2(b). Therefore, the State's November 7, 2022 notice of appeal was not timely filed. Notably, however, the time for filing a notice of appeal can be extended if, within fifteen days of the deadline for filing the notice of appeal, a party files a notice of appeal in the trial court and a motion for extension of time that complies with Texas Rule of Appellate Procedure 10.5(b) in the appellate court. See Tex. R. App. P. 10.5(b), 26.3; see also Lair, 321 S.W.3d at 159; Olivo, 918 S.W.2d at 522 (requiring both notice of appeal and motion for extension to be filed within fifteen days of original due date for notice of appeal). Thus, to extend its deadline to file its notice of appeal, the State was required to file its notice of appeal in the trial court and motion for extension of time in the appellate court on or before November 18, 2022.
The State's notice of appeal, filed in the trial court on November 7, 2022, was filed within the fifteen-day extension period provided in Texas Rule of Appellate Procedure 26.3. But, the State did not file a motion for extension of time to file its notice of appeal until November 28, 2022, which was beyond the fifteen-day extension period provided in rule 26.3. "When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day [extension] period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction." Olivo, 918 S.W.2d at 523.
We note that the Texas Supreme Court has held that, in a civil appeal, a motion for extension of time may be implied where a party, acting in good faith, files its notice of appeal within the fifteen-day extension period provided by Texas Rule of Appellate Procedure 26.3. See Verburgt v. Dorner, 959 S.W.2d 615, 615 (Tex. 1997). However, the Court of Criminal Appeals has expressly held that, in criminal appeals, both the notice of appeal and motion for extension of time must be filed within the fifteen-day extension period. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996); see also Boyd v. State, 971 S.W.2d 603, 606 (Tex. App.- Dallas 1998, no pet.) (concluding implied request for extension permitted by Texas Supreme Court in civil appeals did not extend to criminal appeals where the Court of Criminal Appeals "specifically held that both the notice of appeal and extension motion had to be filed within the fifteen-day period").
Notably, in its November 28, 2022 motion to extend, the State contended that it "was first provided notice" of the trial court's October 14, 2022 order granting appellee's motion to suppress "on November 4, 2022, one day after the [twenty-day] deadline to timely file" its notice of appeal. The State further contended that the trial court clerk "confirmed that the State was not provided notice via e-file upon the filing of the order." Given its delayed notice, the State's motion requested that this Court extend the State's deadline for filing its notice of appeal "under Texas Rules of Appellate Procedure . . . 26.2(b) and 10.5(b)(2)." However, the State cites to no authority which would allow this Court to extend the deadline for filing a notice of appeal and exercise jurisdiction under these facts.
While the State alleged that it did not receive notice of the trial court's October 14, 2022 order until one day after the deadline to file its notice of appeal, that fact alone does not extend the State's deadline for filing a notice of appeal beyond what is permitted by Texas Code of Criminal Procedure article 44.01 and Texas Rule of Appellate Procedure 26.2. See State v. Rollins, 4 S.W.3d 453, 455 (Tex. App.- Austin 1999, no pet.) (noting "[i]n civil cases, additional time for filing a notice of appeal may be obtained if a party affected by the judgment or other appealable order does not receive notice or have actual knowledge of the signing," however, "[n]o comparable rule exists for criminal cases").
Because the State did not file its notice of appeal and motion to extend its deadline to file its notice of appeal time within the period prescribed by Texas Code of Criminal Procedure article 44.01 and Texas Rule of Appellate Procedure 26.2, we must dismiss the State's appeal for lack of jurisdiction. See Olivo, 918 S.W.2d at 522.
Accordingly, we deny the State's motion to extend its deadline to file its notice of appeal and dismiss the appeal for lack of jurisdiction. See Tex. R. App. P. 43.2(f). We dismiss all other pending motions as moot.