Opinion
No. 05-22-00220-CR
07-18-2023
The STATE of Texas, Appellant v. Whitney S. VILLA, Appellee
Bruce Anton, Dallas, Madison McWithey, Udashen Anton, Dallas, for Appellee. Cody McCullar, Senior Assistant City Attorney, Mesquite, David L. Paschall, City Attorney, Mesquite, John Creuzot, Dallas, Jason C. Miller, Assistant City Attorney, Mesquite, for Appellant.
Bruce Anton, Dallas, Madison McWithey, Udashen Anton, Dallas, for Appellee.
Cody McCullar, Senior Assistant City Attorney, Mesquite, David L. Paschall, City Attorney, Mesquite, John Creuzot, Dallas, Jason C. Miller, Assistant City Attorney, Mesquite, for Appellant.
Before Justices Carlyle, Goldstein, and Kennedy
OPINION
Opinion by Justice Kennedy
In the City of Mesquite Municipal Court, a municipal court of record, a jury convicted Whitney S. Villa of assault by contact, a Class C misdemeanor, and the court assessed a fine of $331 as Villa's punishment. See TEX. PENAL CODE ANN. § 22.01(a)(3), (c). Villa appealed the municipal court's judgment to County Criminal Court of Appeals No. 1, which ruled in Villa's favor, reversed the municipal court's judgment, and remanded Villa's case for a new trial. The State now seeks to appeal the county criminal court of appeals’ judgment to this Court.
We questioned this Court's jurisdiction over the State's appeal because it does not meet the requirements of Texas Government Code Section 30.00027(a), and, on our own motion, we asked the parties to show cause why this appeal should not be dismissed. See TEX. GOV'T CODE ANN. § 30.00027(a) (setting forth the requirements for appeals of matters originating in municipal courts of record to the courts of appeal). The State responded asserting we have jurisdiction over its appeal. Villa responded urging this Court to follow the Fort Worth Court of Appeals’ decision in State v. Pugh and dismiss the appeal for lack of jurisdiction. No. 02-21-00108-CR, 2022 WL 1793518 (Tex. App.—Fort Worth June 2, 2022, no pet.) (mem. op., not designated for publication). For the reasons set forth herein, we conclude we do not have jurisdiction over the State's appeal.
DISCUSSION
I. Right of Appeal
In Texas, appeals by either the State or the defendant in a criminal case are permitted only when they are specifically authorized by statute. State ex rel. Lykos v. Fine , 330 S.W.3d 904, 915 (Tex. Crim. App. 2011) (orig. proceeding). And "[t]he standard for determining jurisdiction is not whether the appeal is precluded by law, but whether the appeal is authorized by law." Id. (quoting Abbott v. State , 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008) ). Thus, while the legislature has generally granted the courts of appeals appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed, with a minimum fine requirement in cases appealed from an inferior court to one of the county courts, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based, whether the court may exercise jurisdiction in a specific case still depends upon whether the appealing party has been given the right to appeal. See TEX. CODE CRIM. PROC. ANN. art. 4.03. Article 44.02 of the Code of Criminal Procedure states a defendant's general right of appeal, and Article 44.01 provides the State a limited right of appeal. Id. arts. 44.01–.02. When we consider whether a party has been granted a right to appeal, we default to these provisions unless another legislative directive applicable to the case provides otherwise. See, e.g. , Dallas Cnty. v. Coutee , 233 S.W.3d 542, 545 (Tex. App.—Dallas 2007, pet. denied).
Under Article 44.01, "The state is entitled to appeal an order of a court in a criminal case if the order: (1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint; (2) arrests or modifies a judgment; (3) grants a new trial; (4) sustains a claim of former jeopardy; (5) grants 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; or (6) is issued under Chapter 64 [addressing miscellaneous proceedings]." Crim. Proc. art. 44.01(a). In addition, the State is entitled to appeal (1) a sentence in a case on the ground that the sentence is illegal, (2) a ruling on a question of law if the defendant is convicted in the case and appeals the judgment, (3) an order granting relief to an applicant for a writ of habeas corpus under Article 11.072, (4) an order entered under Subchapter G or H, Chapter 62, that exempts a person from complying with the requirements of Chapter 62, and Subchapter I, Chapter 62, that terminates a person's obligation to register under Chapter 62. Id. art. 44.01(b), (c), (k), (l ).
Under Article 44.02, "A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial." Id. art. 44.02.
II. Initial Appeal of Municipal Court of Record Judgment or Conviction
Section 30.00014(a) of the Texas Government Code governs an initial appeal of a municipal court of record's judgment or conviction. See GOV'T § 30.00014(a). Jurisdiction of such an appeal lies in the county criminal courts or the county criminal courts of appeal in the county in which the municipality is located, or in the municipal county courts of appeal, or in the county courts at law, as a default in the absence of the aforementioned courts. Id. Section 30.00014 does not apply to subsequent appeals from the county courts to the courts of appeals. See Pugh , 2022 WL 1793518, at *2.
Section 30.00014 affords a defendant the right to appeal from a judgment or conviction of a municipal court of record. GOV'T § 30.00014(a). The State has the right to appeal as provided by Article 44.01 of the Texas Code of Criminal Procedure. Id. § 30.00014(a). The actions listed in Article 44.01(a) are typically actions that are taken by a trial court and, thus, are logically subject to an initial appeal. To preserve a complaint for appeal to the county criminal court, the appealing party must set forth its complaint in a motion for new trial. Id. § 30.00014(c). Unlike appeals from a "municipal court," an appeal from a "municipal court of record" may not be by trial de novo; rather, it is truly an appeal of the underlying decision. Id. § 30.00014(b) ; CRIM. PROC. art. 44.17 ("In all appeals to a county court from ... municipal courts other than municipal courts of record, the trial shall be de novo ... in the county court, the same as if the prosecution had been originally commenced in that court. An appeal to the county court from a municipal court of record may be based only on errors reflected in the record."); CRIM. PROC. art. 45.042(b) ("Unless the appeal is from a municipal court of record and the appeal is based on error reflected in the record, the trial shall be de novo."). Section 30.00014 does not address the issue of subsequent appeals.
In the current case, it was Villa, not the State, who perfected an appeal from the municipal court of record to the county criminal court of appeals. Dissatisfied with that court's resolution of Villa's appeal, reversing the judgment of the municipal court of record and remanding the case for a new trial, the State now seeks review from this Court. Accordingly, we discuss the requisites for an appeal to this Court following the county criminal court of appeals’ resolution of an appeal of a municipal court of record's judgment or conviction.
III. Appeals to Court of Appeals
The statute governing our jurisdiction, under the circumstances in which this appeal reaches us, is Section 30.00027 of the Texas Government Code, titled "Appeals to Court of Appeals." See GOV'T § 30.00027 ; Pugh , 2022 WL 1793518, at *1. Pursuant to Section 30.00027(a), "The appellant has the right to appeal to the court of appeals if: (1) the fine assessed against the defendant exceeds $100 and the judgment is affirmed by the appellate court; or (2) the sole issue is the constitutionality of the statute or ordinance on which a conviction is based." GOV'T § 30.00027(a) (emphasis added). In our order requesting letter briefs from the parties addressing this Court's jurisdiction over the State's appeal, we questioned our jurisdiction because (1) the State, as the appellant, is not appealing a case in which the fine assessed exceeds $100 and the municipal court of record's judgment is affirmed by the county criminal court of appeals, sitting as the appellate court, and (2) the State's appeal does not involve the constitutionality of any underlying statute or ordinance on which the conviction was based.
With respect to municipal courts of record, the Government Code defines "appellate court" as "(A) the county criminal court, the county criminal court of appeals, or the municipal court of appeals; or (B) the county court at law if there is no county criminal court, country criminal court of appeals, or municipal court of appeals." Gov't § 30.00002(1).
IV. The State's Arguments
In the State's letter brief, it contends that we have jurisdiction to hear its appeal under Article "44.01 of the Texas Code of Criminal Procedure, by and through Section 30.00014 of the Texas Government Code, through Section 30.00027(b) of the Texas Government Code." The State relies principally on this Court's decision in Morales and the Texas Court of Criminal Appeals’ decision in Blankenship to urge it has a right to appeal under Article 44.01. See State v. Blankenship , 146 S.W.3d 218 (Tex. Crim. App. 2004) ; State v. Morales , 322 S.W.3d 297 (Tex. App.—Dallas 2010, no pet.). We will address the State's arguments concerning these cases as well as its reference to Sections 30.00014 and 30.00027(b) of the Government Code. A. Section 33.00014 – "Appeal"
To the extent the State relies on Section 30.00014(a), and its reference to Article 44.01 of the Texas Code of Criminal Procedure, to establish a right to appeal the county criminal court of appeal's judgment reversing the municipal court of record's judgment and remanding the case for a new trial, its reliance is misplaced. Section 30.00014(a) applies to initial appeals from the municipal courts of record to the county courts, not to subsequent appeals from the county courts to the courts of appeals. Id. § 30.00014(a) ; Pugh , 2022 WL 1793518, at *2. Appeals to this Court are governed by Section 30.00027, titled "Appeals to Court of Appeals." GOV'T § 30.00027(a) ; Pugh , 2022 WL 1793518, at *1.
B. Morales
The State contends that the posture of the current case is similar to that of Morales and Sanchez , cases in which this Court considered the merits of appeals by the State in cases that originated in municipal courts of record. Morales , 322 S.W.3d at 297 ; State v. Sanchez , 135 S.W.3d 698 (Tex. App.—Dallas 2003), aff'd , 138 S.W.3d 324 (Tex. Crim. App. 2004). The State concedes that this Court did not address the issue of jurisdiction in Sanchez , and we conclude Sanchez is not instructive here. With respect to Morales , the State contends that this Court expressly recognized jurisdiction over the State's appeal and that, absent an intervening change in the law by the legislature, a higher court, or this Court sitting en banc, this Court should not overrule Morales ’ jurisdictional determination. For the reasons set forth herein, we disagree with the State's characterization of the scope of this Court's decision in Morales and conclude the State's reliance on Morales is misplaced.
In Morales , a jury convicted Morales of having possessed drug paraphernalia and the trial court assessed a fine of $500. Morales filed a motion for new trial, which the trial court granted. Morales then filed an application for writ of habeas corpus asserting the new trial was barred by the double jeopardy clauses of the United States and Texas Constitutions. The trial court granted the application and entered a judgment of acquittal. In that case, the State, not the defendant, appealed to the county criminal court of appeals. That court affirmed the trial court's orders, and the State appealed to this Court. We recognize here that on appeal to this Court, we referenced Government Code Section 30.00014(a) and Article 44.01 of the Code of Criminal Procedure, along with Section 30.00027 of the Government Code. But we did so only in the recital of the facts while simply noting that the appeal was timely filed. Contrary to the State's assertion, this Court did not expressly recognize that it had jurisdiction over the substance of the State's appeal and did not analyze whether a specific statute authorized exercise of jurisdiction over the case. Moreover, the fact that the Court went on to decide the case on the merits does not impact or control our decision here because it is beyond question that a court may not by its own action, explicitly or implicitly, expand jurisdiction beyond that granted by the Constitution or legislature. City of Amarillo v. Hancock , 150 Tex. 231, 239 S.W.2d 788, 791 (1951) ; see also Emps. Ret. Sys. of Tex. v. Foy , 896 S.W.2d 314, 316 (Tex. App.—Austin 1995, writ denied).
C. Blankenship
Next, the State asserts that in Blankenship the court of criminal appeals addressed the court of appeals’ jurisdiction in a municipal court of record appeal and did so by applying and referencing Article 44.01 of the Code of Criminal Procedure. Blankenship , 146 S.W.3d at 218. While the court may have referenced Article 44.01, the focus of the court's opinion was on subsection (d), dealing with the notice of appeal deadline, and whether the County Attorney "made" the appeal, and was limited to the issue of whether the County Attorney had consented to the City Attorney's prosecuting the appeal under Article 45.201 of the Code of Criminal Procedure.
We recognize that in footnote 1 of the opinion, the court stated, "Article 44.01(a) and (b), Tex. Code Crim. Proc ., permits the ‘state’ to appeal certain matters." But we note that the statement is not specifically addressed to the issue of the state's appeal to the court of appeals following an appeal of a municipal court of record's judgment or conviction to the county criminal courts and did not address the specific issue that was before the court. We conclude the statement is merely dicta. See, e.g., Sommers v. Concepcion , 20 S.W.3d 27, 39 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (when the court was not addressing the specific issue addressed in the footnote, the statement in the footnote was merely dicta). For that reason, we do not find the Gates case, which the State references as citing Blankenship , to be persuasive here. See State v. Gates , No. 14-12-00573-CR, 2012 WL 3629349, at *1 (Tex. App.—Houston [14th Dist.] Aug. 23, 2012, no pet.) (mem. op., not designated for publication).
Article 45.201(c) provides, "With the consent of the county attorney, appeals from municipal court to a county court, county court at law, or any appellate court may be prosecuted by the city attorney or a deputy city attorney." Crim. Proc. art. 45.201(c). Article 44.01(d) provides, "The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 20th day after the date on which the order, ruling, or sentence to be appealed is entered by the court. Id. art. 44.01(d).
In that case, the court of criminal appeals noted that after the time for filing a timely notice of appeal expired, Blankenship filed a motion to dismiss the appeal claiming the court of appeals lacked jurisdiction over the appeal because neither the amended notice of appeal nor anything else in the record reflected that the County Attorney "personally" made the appeal. State v. Blankenship , 123 S.W.3d 99, 102–05 (Tex. App.—Austin 2003), rev'd , 146 S.W.3d 218 (Tex. Crim. App. 2004). The court of appeals decided that the assertion in the City's amended notice of appeal that the County Attorney consented to this particular appeal under Article 45.201, failed to satisfy Article 44.01(d) ’s requirement that the County Attorney "make" the appeal. Id. at 105. The court of criminal appeals disagreed with the court of appeals and concluded that an assertion in a notice of appeal, such as the one at issue there, could simultaneously comply with Articles 45.201 and 44.01(d). Blankenship , 146 S.W.3d at 220. Consequently, we conclude Blankenship does not support the State's assertion that this Court has jurisdiction over its appeal.
V. Section 30.00027 – "Appeals to Court of Appeals"
This brings us back to Section 30.00027. Unlike Section 30.00014, Section 30.00027 does not expressly refer to Article 44.01 of the Code of Criminal Procedure. Had the legislature intended to give the State the right to appeal to the courts of appeal under Article 44.01, it could have used the same language in Article 30.00027, but it did not. When the legislature has employed a term in one section of a statute and excluded it in another, we presume the legislature had a reason for excluding it. See Fireman's Fund Cnty. Mut. Ins. Co. v. Hidi , 13 S.W.3d 767, 769 (Tex. 2000) ; see also Laidlaw Waste Sys. (Dallas) Inc. v. City of Wilmer , 904 S.W.2d 656, 659 (Tex. 1995) (when legislature uses a word or phrase in one portion of statute but excludes it from another, the term should not be implied where it has been excluded). With respect to the history of Section 30.00027, we note that the earliest version of Section 30.00027 was Section 30.505, and it used the term "defendant" when addressing the right to appeal. Act of May 23, 1987, 70th Leg., R.S., ch. 811, § 1, 1987 Tex. Gen. Laws, 2809, 2814. Effective September 1, 1997, Section 30.505 was renumbered (without any editing) as Section 30.00025. Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 8.02, 1997 Tex. Gen. Laws 327, 389. Thus, at one time the restriction on the right to appeal in what would later become Section 30.00027 applied only to defendants who had appealed from the municipal court to the county court, who lost their appeal in the county court, and who wanted to appeal from the county court to the courts of appeals.
Section 30.505 provided, "The defendant has the right to appeal to the court of appeals if the fine assessed against the defendant exceeds $100 and if the judgment is affirmed by the appellate court. The provisions of the code of criminal procedure relating to direct appeals from a county or a district court to the court of appeals apply to the appeal, except that: (1) the record and briefs on appeal in the appellate court constitute the record and briefs on appeal to the court of appeals unless the rules of the court of criminal appeals provide otherwise; and (2) the record and briefs shall be filed directly with the court of appeals."
But effective September 1, 1999, Section 30.00025 was renumbered as Section 30.00027 and, in connection with the recitation of the right to appeal, the designation of "defendant" was replaced with "appellant." Act of May 27, 1999, 76th Leg., R.S., ch. 691 § 1, 1999 Tex. Gen. Laws, 3263, 3270. When the legislature amends a statute, we presume that the legislature intended to change the law, and we give effect to that intended change. Brown v. State , 915 S.W.2d 533, 536 (Tex. App.—Dallas 1995), aff'd , 943 S.W.2d 35 (Tex. Crim. App. 1997). By changing "defendant" to "appellant," the legislature broadened Section 30.00027(a) to include the State. Pugh , 2022 WL 1793518, at *3. Because the State falls under Section 30.00027(a), we have no need to look beyond it for a default provision, and Article 44.01 is not implicated.
The dissent contends applying Section 30.00027(a) to the State, as appellant, would lead to absurd results because "it is unlikely that the State would ever have the authority to appeal." We recognize that Section 30.00027(a) is more restrictive than Article 44.01. We disagree with the dissent as to the extent of that restriction, and note that, nevertheless, the legislature is entitled to restrict the breadth of its grants of subsequent appeal authority, and that the restrictions do not altogether foreclose the State's ability, under the right circumstances, to seek further review from this Court or discretionary review from the court of criminal appeals. See Lykos, 330 S.W.3d at 915 ; Crim. Proc. art. 44.03. The dissent also references Section 30.00026, which provides that if the appellate court (county court of criminal appeals) awards a new trial to the appellant, the case stands as if a new trial had been granted by the municipal court of record, and, citing Section 30.00014, suggests this affords the State the opportunity to appeal to this Court pursuant to Section 30.00014 ’s reference to Article 44.01. But nothing in Section 30.00026 references a subsequent appeal to this Court, and, for the reasons stated supra, Section 30.00014 does not apply to appeals to this Court.
Finally, we consider what, if any, impact Section 30.00027(b) has on the parties’ rights to appeal to the court of appeals. Section 30.00027(b) provides:
The provisions of the Code of Criminal Procedure relating to direct appeals from a county or a district court to the court of appeals apply to the appeal, except that:
(1) the record and briefs on appeal in the appellate court constitute the record and briefs on appeal to the court of
appeals unless the rules of the court of criminal appeals provide otherwise; and
(2) the record and briefs shall be filed directly with the court of appeals.
GOV'T § 30.00027(b). We conclude, as our sister court of appeals did in Pugh , that Section 30.00027(b) addresses procedural, not jurisdictional, issues, as evidenced by the reference to the record and briefs and the filing thereof, and we do not read it to broaden our jurisdiction beyond that set forth in Section 30.00027(a).
If Section 30.00027(b) broadened the right of appeal to include Article 44.01 of the Code of Criminal Procedure, notwithstanding the legislature's decision not to reference the provision in Section 30.00027, we would have to include—in addition to Article 44.01 — Article 44.02, addressing a defendant's right to appeal. With exceptions applicable to plea bargains not relevant here, Article 44.02 affords defendants unrestricted appeals. CRIM. PROC. art. 44.02. And if we applied both Article 44.01 and Article 44.02 to establish our jurisdiction to hear these appeals, then Section 30.00027(a) would be rendered meaningless. In interpreting a statute, we must read it as a whole and construe it to give meaning and purpose to every part. Ex parte Pruitt , 551 S.W.2d 706, 709 (Tex. 1977) (orig. proceeding). Courts should avoid constructions that render statutes or portions thereof meaningless. See Ludwig v. State , 931 S.W.2d 239, 242 n.9 (Tex. Crim. App. 1996) ; Gordon v. State , 707 S.W.2d 626, 629 (Tex. Crim. App. 1986). Moreover, had the legislature intended that subsequent appeals to the court of appeals be governed solely and completely by the Code of Criminal Procedure, with only the restrictions in subsections (b)(1) and (2), it could have completely eliminated subsection (a). It did not.
CONCLUSION
The State has not satisfied either of the paths to review before this Court as set forth in Section 30.00027(a) of the Government Code. Accordingly, this Court lacks jurisdiction over the State's appeal. See Pugh , 2022 WL 1793518, at *6. Thus, we dismiss the State's appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f).
Goldstein, J., dissenting
DISSENTING OPINION
Dissenting Opinion by Justice Goldstein
The majority opinion concludes that when a county criminal court of appeals (CCCA) reverses a criminal conviction issued by a municipal court of record, the State has no authority to appeal the CCCA's ruling to this Court. The majority relies on our sister court's unpublished opinion in State v. Pugh to conclude that we lack jurisdiction over this appeal. See No. 02-21-00108-CR, 2022 WL 1793518 (Tex. App.—Fort Worth June 2, 2022, no pet.) (mem. op., not designated for publication). I disagree and respectfully dissent.
"Opinions and memorandum opinions not designated for publication by the court of appeals under these or prior rules have no precedential value but may be cited with the notation, ‘(not designated for publication).’ " Tex. R. App. P. 47.7(a).
I. JURISDICTION
A. Standard of Review
This case requires us to interpret certain provisions of Chapter 30 of the Government Code. Statutory construction is a question of law, which we review de novo. Sims v. State , 569 S.W.3d 634, 640 (Tex. Crim. App. 2019). When construing statutes, we "seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation." Id. We first look to the statute to determine if its language is plain. Id. We presume that the legislature intended for every word to have a purpose, and we should give effect if reasonably possible to each word, phrase, and clause of the statutory language. Id. We read words and phrases in context and construe them according to the rules of grammar and usage. Id. If the language of the statute is plain, we follow that language unless it leads to absurd results that the legislature could not have possibly intended. Id. When the plain language leads to absurd results, or if the language of the statute is ambiguous, we consult extra-textual factors to discern the legislature's intent. Id.
B. Analysis
1. Background on Municipal Courts of Record
Chapter 30, titled the Uniform Municipal Courts of Record Act (UMCRA), governs the trial of certain criminal offenses in municipal courts of record. TEX. GOV'T CODE ANN. §§ 30.0001, .0005. As originally enacted, the UMCRA contained several provisions related to the defendant's right to appeal his or her conviction. See Acts 1987 (H.B. 1879), 70th Leg., ch. 811, § 1, eff. Aug. 31, 1987. The UMCRA was, however, silent on the State's authority to appeal. This was consistent with the then-current Texas Constitution, which gave the State "no right of appeal in criminal cases." TEX. CONST . art. V, § 26 (amended 1987).
Article V, Section 26 was amended in 1987 to provide that "[t]he State is entitled to appeal in criminal cases, as authorized by general law." TEX. CONST. art. V, § 26. The Legislature thereafter amended the UMCRA to add provisions that, among other things, authorized the State to appeal "as provided by Article 44.01, Code of Criminal Procedure." See Acts 1999 (H.B. 731), 76th Leg., ch. 691, § 1, eff. Sept. 1, 1999 [hereinafter "1999 Amendments"]. But rather than enacting new provisions separately governing an appeal by the State, the Legislature simply replaced the word "defendant" with the word "appellant" in multiple sections governing appellate matters. See generally id.
For cases in which the defendant is the appellant throughout the appellate process, the 1999 Amendments cause no significant changes in procedure. In order to perfect an appeal, the defendant convicted in the trial court (i.e., the municipal court of record) was, and still is, required to file a both motion for new trial and a notice of appeal. TEX. GOV'T CODE ANN. § 30.00014(c), (d). The defendant must pay the fee for "an actual transcription of the proceedings" and request that the clerk's record and reporter's record be prepared in conformity with the Rules of Appellate Procedure and Code of Criminal Procedure. See id. §§ 30.00014(g) (transcription fees); 30.00017 (clerk's record), 30.00019 (reporter's record). The municipal judge must then approve the record and send it to the appellate court. Id. § 30.00020. Next, the parties must file their briefs with the appellate court and deliver copies of the briefs to the municipal judge. Id. § 30.00021. While the appeal is pending in the appellate court, the trial court must "decide from the briefs of the parties whether the appellant should be permitted to withdraw the notice of appeal and be granted a new trial by the court." Id. § 30.00022.
An appeal to the county court from a municipal court of record may be based only on errors reflected in the record. Tex. Code Crim. Proc. Ann. art. 44.17.
For the purposes of Chapter 30, "appellate court" means the county criminal court, the county criminal court of appeals, the municipal court of appeals, or, if none of the three previous courts exists in the county or municipality in question, the county court at law. See Tex. Gov't Code Ann. § 30.00002(1).
The trial court may grant a new trial at any time before the record is filed with the appellate court. Id. § 30.00022.
If no new trial is granted, the appellate court must proceed to decide the appeal and issue a ruling that: (1) affirms the trial court's judgment, (2) reverses and remands for a new trial, (3) reverses and dismisses the case, or (4) reforms and corrects the judgment. Id. § 30.00024(a). If the appellate court grants a new trial, "the case stands as if a new trial had been granted by" the trial court. Id. § 30.00026. If the appellate court rules against the defendant, he or she has the right to further appeal to the court of appeals (e.g., this Court) if: "(1) the fine assessed against the defendant exceeds $100 and the judgment is affirmed by the appellate court; or (2) the sole issue is the constitutionality of the statute or ordinance on which a conviction is based." Id. § 30.00027(a). The provisions of the Code of Criminal Procedure relating to direct appeals in criminal cases apply except that: (1) the record and briefs in the appellate court constitute the record and briefs in the court of appeals, and (2) the record and briefs must be filed in the court of appeals. Id. § 30.00027(b).
"Defendant" was changed to "appellant" as part of the 1999 Amendments and is the crux of disagreement in statutory interpretation. The 1999 Amendments are clear that they did not intend this change to be substantive. See Bill Analysis for House Judicial Affairs Committee, C.S.H.B. 731 (available at https://lrl.texas.gov/scanned/officeOfHouseBAs/76-0/HB731RPT.htm).
Relying on Pugh , the majority reasons that when the Legislature replaced the word "defendant" with "appellant," it intended the above procedures to apply equally to the State if it were the appealing party. With respect to § 30.00027, the Pugh court held, and the majority agrees, that a court of appeals has no jurisdiction over the State's appeal if neither of the conditions in subsection (a) are met. See Pugh , 2022 WL 1793518, at *4–5.
Such a conclusion is erroneous because it: (1) conflicts with this Court's precedent; (2) misconstrues § 30.00027(a), resulting in a scenario where the State may appeal only in a case in which it has prevailed in the lower courts; (3) ascribes limitations to § 30.00027(b) that conflict with the provisions of the Code of Criminal Procedure relating to direct appeals in criminal cases, including the State's right to appeal, a result the Legislature did not intend; and (4) fails to consider the applicability of § 30.00026, which authorizes the State's appeal if a new trial is granted.
2. The majority's conclusion conflicts with binding precedent.
First, the majority's holding conflicts with a prior panel decision of the Court. As the majority acknowledges, both this Court and the court of criminal appeals have exercised jurisdiction in cases where the State was the appealing party. See State v. Blankenship , 146 S.W.3d 218, 219 (Tex. Crim. App. 2004) ; State v. Morales , 322 S.W.3d 297, 298 (Tex. App.—Dallas 2010, no pet.). The majority concludes that these cases are not binding because the issue of jurisdiction was not directly addressed in either case. But the question of jurisdiction is at issue in every case, because we have a duty to determine our own jurisdiction irrespective of whether the parties challenge it. Solis v. State , 890 S.W.2d 518, 520 (Tex. App.—Dallas 1994, no pet.). When we referenced §§ 30.00014 and 30.00027 of the Government Code and Article 44.01 of the Code of Criminal Procedure in Morales , we were not simply stating dictum as the majority concludes. Rather, we were citing the statutory provisions that authorized our exercise of jurisdiction over the case. See Morales , 322 S.W.3d at 298. We are therefore bound by Morales . See Gonzalez v. State , No. 05-17-01463-CR, 2019 WL 1292502, at *9 (Tex. App.—Dallas Mar. 21, 2019, pet. ref'd) ("We may not overrule a prior panel decision of this Court absent an intervening change in the law by the legislature, a higher court, or this Court sitting en banc." (quoting MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P. , 260 S.W.3d 561, 566 (Tex. App.—Dallas 2008, no pet.) )).
The procedural posture in Morales when it reached this Court was that the State of Texas timely filed notices of appeal from the trial court's orders granting the motion for new trial and granting the pretrial application for writ of habeas corpus. The CCCA affirmed the trial court's orders, and the State timely appealed that judgment to this Court. See Tex. Gov't Code Ann. §§ 30.00014(a), .00027(b); Tex. Code Crim. Proc. Ann. art. 44.01(a)(3), (4) ; Morales , 322 S.W.3d at 298.
The only procedural distinction is that in our case the CCCA granted the motion for new trial from which the State appeals rather than affirming the trial court's order granting a new trial as in Morales. See Morales , 322 S.W.3d at 298 ; Tex. Gov't Code Ann. § 30.00026. This is a distinction without a difference and would be a tremendous waste of judicial resources.
3. The majority misconstrues § 30.00027(a).
The majority's conclusion also misconstrues § 30.00027(a) of the UMCRA, which provides:
(a) The appellant has the right to appeal to the court of appeals if:
(1) the fine assessed against the defendant exceeds $100 and the judgment is affirmed by the appellate court; or
(2) the sole issue is the constitutionality of the statute or ordinance on which a conviction is based.
In general, criminal penalties in municipal courts are fine only with a range commencing with a minimum of a one dollar fine to a maximum depending on the state traffic law, penal code offenses or enumerated ordinance violations. See Tex. Code Crim. Proc. Ann. art. 4.14 ; Tex. Gov't Code Ann. § 29.003.
TEX. GOV'T CODE ANN. § 30.00027(a). The majority concludes that because neither of these conditions was met, the State, in this instance, does not have the right to appeal.
The majority's conclusion eviscerates the State's right to appeal to this Court and the court of criminal appeals, thus making the CCCA, with respect to municipal courts of record, the court of last resort. Specifically, the majority's interpretation would lead to absurd results, as it is unlikely the State would ever have the authority to appeal.
To appeal under subsection (a)(1), the municipal court of record would have to find the defendant guilty and the appellate court would have to affirm the conviction. The State would thus be authorized to appeal only if it successfully defended a conviction in the appellate court, a result that is much more circumscribed than its general right of direct appeals in criminal cases under Article 44.01, including where, as here, the defendant has been granted a new trial. See TEX. CODE CRIM. PROC. ANN. art. 44.01 (a)(3). Under subsection (a)(2), the State would have to secure a conviction and then challenge the constitutionality of the very statute or ordinance that it charged against the defendant. As the primary duty of all prosecuting attorneys is not to convict, but to see that justice is done, the State could merely dismiss the charges. TEX. CODE CRIM. PROC. ANN. art. 2.01 ; see also TEX. GOV'T CODE ANN. § 30.00023 (providing that the Code of Criminal Procedure governs the trial of cases in a municipal court of record); TEX. CODE CRIM. PROC. ANN. § 32.02 (providing that the State may, with the trial court's consent, dismiss the charges against the defendant at any time). The majority's scenario envisions that the State may appeal to this Court only when a conviction has been achieved and affirmed—in other words, only when the State has prevailed—and only by challenging the law that forms the basis of the conviction as constitutionally infirm.
As the majority concludes that 44.01 does not apply, and appeals are limited to subsection (a), following this conclusion, I can foresee no other viable appellate scenario emanating from a municipal court of record trial, which epitomizes an absurd and illogical result.
The practical effect of the majority's interpretation of Section 30.00027(a) is to do what the Legislature did not do in express terms: establish the CCCA as the court of last resort for the State's issues while preserving the defendant's right to seek redress to the constitutionally established court of last resort, the court of criminal appeals. If indeed the Legislature intended this result, I would invite the legislature to revisit this issue of the State's right to appeal.
The Texas Court of Criminal Appeals is the court of last resort for all criminal matters in Texas. State ex rel. Wilson v Briggs , 171 Tex.Crim. 479, 351 S.W.2d 892, 894 (1961) ; Tex. Const. art. 5, § 5.
4. The majority wrongly narrows the scope of § 30.00027(b).
Section 30.00027(b) of the UMCRA provides that, with two exceptions, "[t]he provisions of the Code of Criminal Procedure relating to direct appeals from a county or a district court to the court of appeals apply to the appeal." TEX. GOV'T CODE ANN. § 30.00027(b). The two exceptions are that (1) the record and briefs in the appellate court constitute the record and briefs to the court of appeals unless the rules of the court of criminal appeals provide otherwise; and (2) the record and briefs shall be filed directly with the court of appeals. Id. The majority concludes, as did the Pugh court, that § 30.00027(b) "addresses procedural, not jurisdictional, issues." It bases its conclusion on the fact that the two exceptions are themselves procedural.
Our own rules recognize the State's right to appeal: the "State is entitled to appeal a court's order in a criminal case as provided by Code of Criminal Procedure article 44.01." Tex. R. App. P. 25.2(a)(1) ; Tex. R. App. P . 25(a)(2) provides the defendant's right to appeal.
This conclusion negates the predicate to the exception—that "the provisions of the Code of Criminal Procedure relating to direct appeals from a county or a district court to the court of appeals"—and strips this language of meaning. We must read statutory words in context and construe them according to the rules of grammar and usage. Sims , 569 S.W.3d at 640. When the Legislature directs us to follow all the provisions of a statute except some of the procedural ones, we should not construe that directive as telling us to ignore all of the statute's substantive provisions. In § 30.00027(b), the Legislature directs us to apply the appellate provisions of the Code of Criminal Procedure to a direct appeal like the one before us. Id. We did so in Morales , and we should do so in this instance. The appellate provisions of the Code of Criminal Procedure include Article 44.01, which provides that the State "is entitled to appeal an order of a court in a criminal case if the order ... grants a new trial." TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(3). Here, the CCCA granted a new trial. Therefore, the State has the right to appeal.
The majority disagrees with this conclusion. The majority explains that if § 30.00027(b) opens the door to all the appellate provisions in the Code of Criminal Procedure, then Article 44.02 must be included as well. And because Article 44.02 affords defendants unrestricted appeals, the breadth of Article 44.02 would swallow the limitations in § 30.00027(a). That is, if a statute says that you may appeal only in circumstances X and Y, while another statute says that you may appeal in all circumstances, applying both statutes would render the former statute meaningless.
However, Article 44.02 is already subject to the limitations in § 30.00027 by way of Article 4.03 of the Code of Criminal Procedure. Article 4.03 provides:
The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed or affirmed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.
TEX. CODE CRIM. PROC. ANN. art. 4.03. The second sentence contains substantially the same limitations as § 30.00027(a) of the UMCRA. Therefore, Article 44.02 is no broader than § 30.00027(a).
It appears from the similarities between these provisions that the Legislature included § 30.00027(a) in the UMCRA to ensure that the courts of appeals do not mistakenly expand their own jurisdiction in UMCRA cases by, for example, accepting an appeal with no constitutional issue and a fine of less than $100. Compare Tex. Gov't Code Ann. § 30.00027(a) with Tex. Code Crim. Proc. Ann. art. 4.03.
5. The majority incorrectly holds § 30.00014 inapplicable.
Finally, the majority concludes that § 30.00014 of the UMCRA does not apply because it governs appeals from the municipal court of record to the appellate court, not appeals from the appellate court to this Court. See Pugh , 2022 WL 1793518, at *2 (arriving at the same conclusion). But the majority overlooks § 30.00026, which provides: "If the appellate court awards a new trial to the appellant, the case stands as if a new trial had been granted by the municipal court of record." TEX. GOV'T CODE ANN. § 30.00026. When the municipal court of record grants a new trial, the State may appeal that decision pursuant to § 30.00014 because § 30.00014 provides that the State has the right to appeal as provided by Article 44.01, and Article 44.01 provides that the State may appeal the grant of a new trial. Id. § 30.00014 ; TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(3).
6. Summary
Our task in construing statutes is to give effect to the Legislature's intent. Sims , 569 S.W.3d at 640. When confronted with a statutory scheme, we must read its provisions not in isolation but in the context of the whole statutory scheme. Timmins v. State , 601 S.W.3d 345, 348 (Tex. Crim. App. 2020) ; Horton v. State , 394 S.W.3d 589, 593 (Tex. App.—Dallas 2012, no pet.). Where different provisions of a statutory scheme appear to conflict, we must strive to harmonize them. Diruzzo v. State , 581 S.W.3d 788, 803 (Tex. Crim. App. 2019).
When the Legislature enacted the UMCRA, it afforded criminal defendants the right to appeal. In the 1999 Amendments, the Legislature extended that right to the State but expressly limited that right as provided by Article 44.01 of the Code of Criminal Procedure. The UMCRA also governs, under § 30.00027, the parties’ right to appeal to this Court. The majority construes § 30.00027 to apply to both parties as an absolute limitation on their right to appeal. For the reasons stated above, I disagree. I would hold that the State has a right to appeal under §§ 30.00014(a), 30.00026, and 30.00027(b), and I would reach the merits of its appeal.
II. WAIVER
As I would conclude this court has jurisdiction to reach the merits, I would reverse the county court's judgment and reinstate the trial court's judgment. Under UMCRA § 30.00014, to perfect an appeal, the defendant must file a motion for new trial and a notice of appeal. See TEX. GOV'T CODE ANN. § 30.00014(c), (d). The motion for new trial must "set forth the points of error of which the appellant complains." Id. § 30.00014(c).
Here, the jury found Villa guilty of assault by contact, and the municipal court of record entered a judgment fining Villa $331.00. Villa, proceeding pro se, filed a handwritten motion for new trial that stated, in full:
I Whitney Villa would like to file a motion for new trial to provide evidence and obtain a lawyer on August 30, 2021 @ 2:30 pm. The evidence that I brought to court was not allowed to be submitted. I was told that I can bring witness statements as long as they are notarized, but when I came to court I was told I had to bring the actual persons.
The video was not played all the way through and Echo Johnson admitted she approached me and I was defending my child and self.
At some point thereafter, Villa retained counsel who filed a brief on her behalf. In the brief, Villa asserted that the evidence at trial warranted a self-defense instruction. Villa argued that the trial court erred by failing to provide her an opportunity to object to the charge and insist on a self-defense instruction. The State argued that Villa waived the jury charge error by failing to include it in her motion for new trial.
The CCCA reversed and remanded for a new trial. In its opinion, the CCCA held that Villa's motion for new trial could be construed to include a point about charge error. The CCCA reasoned that Villa timely filed a motion for new trial "setting out her points of error, and although legal terminology was not exact, it is clear the intent was to argue self-defense."
In its first issue, the State contends that the county court erred by allowing Villa to argue a point of error that was not included in her motion for new trial. Courts must liberally construe the pleadings and briefs of pro se litigants. Chambers v. State , 261 S.W.3d 755, 757 (Tex. App.—Dallas 2008, pet. denied). However, a court must hold pro se litigants to the same standards as licensed attorneys, lest the court abandon its role as a neutral arbiter and become an advocate for a party. See id. Thus, the issue is whether Villa's notice of appeal, construed liberally, preserved her complaint regarding the jury charge.
The answer is no. The motion for new trial does not reference the jury charge or even imply that the jury made the wrong decision. The clear complaint Villa raised was that she was not allowed to submit evidence. Even the statement on which the CCCA based its decision—"I was defending my child and self"—was made in the context of a complaint about the incompleteness of the evidence.
I agree that best practices necessitate clarity of record, requiring the judge of a municipal court of record to ensure that all important matters are contained within the record, such as a charge conference, the reading of the charge, and ensuring it is correct. While aspiring to best practices is the message, we cannot, in the absence of such, infer what is not there.
CONCLUSION
I would conclude that we have jurisdiction over this appeal and that the CCCA erred in holding that Villa preserved her complaint about the jury charge. I would reverse the judgment of the County Criminal Court of Appeals No. 1 and reinstate the municipal court at law's judgment of conviction and sentence. Because the majority fails to do so, I respectfully dissent.