Opinion
No. 05-10-00218-CR
Opinion Filed March 31, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 1 Grayson County, Texas, Trial Court Cause No. 2009-1-327-CR.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
MEMORANDUM OPINION
By order dated November 18, 2009, the trial court granted Beverly Ann McDaniel's motion to suppress. On November 25, 2009 and December 7, 2009, the State filed notices of appeal challenging the trial court's order. The Court now has before it appellee's March 12, 2010 motion to dismiss the appeal for want of jurisdiction. The State did not respond to appellee's motion. For the reasons that follow, we conclude we lack jurisdiction over this appeal. The State's right to appeal the trial court's order granting the motion to suppress is provided by article 44.01 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2009). Section (a)(5) requires that in an appeal from an order granting a motion to suppress, the prosecuting attorney must certify "the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance to the case." Id. The certification may be contained in the notice of appeal or in a separate document that accompanies the notice of appeal. See Johnson v. State, 175 S.W.3d 766, 767 (Tex. Crim. App. 2005). The certification is necessary to confer jurisdiction over the appeal in the appellate court. See State v. Riewe, 13 S.W.3d 408, 411 (Tex. Crim. App. 2000), and it must be filed within the twenty-day period the State has to file its notice of appeal. See id. at 413; Johnson, 175 S.W.3d at 767; see also Tex. R. App. P. 26.2(b) (notice of appeal by State must be filed within twenty days after date trial court enters order to be appealed). In this case, the State's November 25, 2009 notice of appeal states:
Comes now the State of Texas, by and through her County Attorney within 15 days of the date in which the trial court signed an [sic] suppressing evidence in the above named and numbered cause, files this notice of appeal to the 5th District Court of Appeals.The December 7, 2009 notice of appeal contains the identical language except that it changed the "15 days" to "20 days." Neither notice of appeal contained the certification required by article 44.01(a)(5), nor was a separate certification filed with the notices of appeal or at other time during the twenty-day period in which the State had to file its notice of appeal from the November 18, 2009 order. See Johnson, 175 S.W.3d at 767; Riewe, 13 S.W.3d at 413. Because the State did not comply with the certification requirements of article 44.01(a)(5), this Court did not acquire jurisdiction over the appeal. See Riewe, 13 S.W.3d at 413. Accordingly, we grant appellee's motion to dismiss. We dismiss the appeal for want of jurisdiction.