Opinion
04-23-01087-CR
12-20-2023
The STATE of Texas, Appellant v. Matthew MARTIN, Appellee
From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2022CR7361 Honorable Frank J. Castro, Judge Presiding
ORDER
Liza A. Rodriguez, Justice
On December 19, 2023, the State filed a notice of appeal from the trial court's order granting the defendant's motion to suppress evidence. See Tex. Code Crim. Proc. art. 44.01(a)(5). The notice of appeal states that the trial court entered the order on December 1, 2023. The Texas Code of Criminal Procedure provides that when appealing an order granting a motion to suppress evidence, the prosecuting attorney must "certif[y] to the trial court that the appeal is not taken for the purpose of delay and that the evidence" "is of substantial importance to the case." See id.
Here, in the State's notice of appeal, the elected prosecutor certifies that the appeal is not taken for the purpose of delay and that "the issues to be presented are of substantial importance to the case." (Emphasis added). Thus, the certification does not comply with article 44.01(a)(5) because it does not certify that the suppressed evidence is of substantial importance to the case.
In State v. Redus, the Texas Court of Criminal Appeals held that the appellate court lacks jurisdiction over an appeal from an order granting the defendant's motion to suppress evidence unless the elected prosecutor personally certifies, within the time to perfect the appeal, that the appeal is not taken to delay the trial and that the suppressed evidence is of substantial importance to the case as required by article 44.01(a)(5). 445 S.W.3d 151, 156-57 (Tex. Crim. App. 2014). "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." See id.
In the present case, the State may correct the defect in the certification by timely filing an amended notice of appeal correcting the defect in the certification See id. ("Any amendment [to the State's notice of appeal] 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.").
In the event the State does not timely file an amended notice of appeal correcting the defect, we ORDER the State to show cause, on or before January 8, 2023, why this appeal should not be dismissed for lack of jurisdiction. See id.; State v. Rodriguez, No 14-13-00766-CR, 2014 WL 5309661, at *1 (Tex. App-Houston [14th Dist] Oct. 16, 2014, no pet.) (dismissing the State's appeal for lack of jurisdiction when the elected prosecutor's certification did not comply with article 44.01(a)(5)).