Wachtendorf, John Allen Jr.
The STATE of Texas v. John Allen WACHTENDORF, Jr., Appellee
Attorneys
John Prezas, Lisa McMinn, for The State of Texas., Kristen Jernigan, for John Allen-Wacht-endorf, Jr.
Full Opinion (html_with_citations)
OPINION
announced the judgment of the Court in an opinion in which Meyers, Johnson, and Richardson, JJ., joined.
The issue in this case is whether the time for filing a notice of appeal from an order adverse to the State should begin to ran with the trial courtās, signing of that order if the State received no timely notice that the order had been signed. The State asserts that it was not notified that the trial court had signed an order granting Appelleeās motion to suppress until the period for filing its notice of appeal had expired. Having received no notice of this triggering event, the State filed an untimely notice of appeal, and the Third Court of Appeals dismissed its appeal for want of jurisdiction, in an unpublished memorandum opinion. State v, Wachtendoff No., 03-14-00633-CR, 2015 WL.894731 (Tex. App.-Austin Feb. 26, 2015) (not designated for publication). We granted the Stateās petition for discretionary review in this case in order to address its argument that the timetable for its notice of appeal should not be triggered by an event for which it obtained' no notice and had no actual knowledge. We shall affirm the judgment of the court of appeals.
BACKGROUND
Appellee was charged with the felony offense of Driving While Intoxicated. According to the district clerkās- file-mark, on January 16, 2014, Appellee filed a motion to suppress the results of a test for blood alcohol concentration following the extraction of blood at the time of his arrest.
Article 44.01(d) of the Texas Code of Criminal Procedure currently requires the State to file notice of appeal within twenty days after an appealable order āis entered by the court.ā Tex.Code CRiM. Proc. art. 44.01(d). This Court has held that the triggering event to begin the running of the period within which the State must file its notice of appeal is when the trial judge signs the order. State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex.Crim.App.1991); State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Crim.App.1992). Rather than file a notice of appeal 'within twenty days of the date- the trial court signed the order granting the motion to suppress in this case, however, the State waited until August 19, 2014, well over twenty days after the date the order was signed. At that time the State filed, not a notice of appeal, but a motion asking the trial court to reconsider its ruling on Appelleeās motion to suppress.
The trial court entertained the Stateās motion to reconsider on September 25, 2014, and heard additional evidence. At the conclusion' of this hearing, the trial court announced that it was āinclined to just continue with [its] rulingf.]ā The trial court then reminded Appellee that it had requested him to prepare proposed flnd: ings of fact and conclusions of law. Appel-lee responded that proposed findings and conclusions were no longer needed because the State had āwaivedā' its right of appeal by failing to timely file its notice of appeal. The trial judge denied any memory' of having signed the order granting the motion to suppress, but almost immediately thereafter he re-discovered the signed order ā apparently āin the clerkās file. The trial judge noted, however, that the signed order was ānot file-marked.ā The prosecutor replied that- āitās still not entered of record if itās not file-stamped.ā
The State eventually filed its notice of appeal op September 3.0, 2014, five days after,the date on which the trial courtās order granting the motion to suppress was ultimately file-marked. On November 6, 2014, the trial court conducted the promised status hearing. In the interim, Appel-lee had filed a motion in the court of appeals to dismiss the Stateās purported appeal for lack of jurisdiction. The State complained that it had not beep privy to the trial courtās July 7th signing of the order granting the motion to suppress. Because the trial courtās opal representation on July 7th that it intended to grant the motion was not an appealable order, the State maintained, it could not have known or been expected to file a notice of appeal within twenty days of that date. The State argued that āthe question now becomes whether or not the Courtās signing of the order versus the entering of it by the district clerk is the date of ā the effective date.ā The trial court observed that āyou two can fight out that in the Court of Appeals, right?ā The parties agreed, and, with that, the trial court adjourned the status hearing, again without having ultimately ruled on the Stateās motion to reconsider.
The court of appeals dismissed the appeal for want of jurisdiction on the strength of Rosenbaum and Bage, observing that, ā[d]espite the criticisms expressed [by the State] against the holding in Rosenbaum, the [Court of Criminal Appeals] has recently sanctioned that holding again.ā State v. Wachtendorf, 2015 WL 894731, at *2 (citing State v. Sanavongxay, 407 S.W.3d 252, 258-59 (Tex.Crim.App. 2012)). In its petition for discretionary review, the State renews its criticism of our holdings in Rosenbaum and Bage, arguing that they are unjust to the State, at least in cases in which it has received no notice of the signing of an order granting a motion to suppress. The State complains that ā[ejxisting precedent, as currently interpreted by, at least, the Third Court of Appeals, allows a [trial] court to sign an order [granting a motion to suppress], wait twenty[-]one or more days before filing the order with the district or county clerk or otherwise giving the State notice.of the existence of said order, and thereby effectively strip altogether from the State its ability to appeal.ā Stateās Brief at 13. We granted the Stateās petition to address this complaint. '
The Statute, the Rule, and the Case Law
The State has not always enjoyed a right to appeal in Texas, ' and that right is āa statutorily created one.ā State v. Sellers, 790 S.W.2d 316 (Tex.Crim.App.1990). Article 44.01 of the Code of Criminal Procedure currently permits the State to appeal, among other things, āan order of a court in a criminal case if the order ,., grants a motion to suppress evidence[]ā Tex.Code Crim. Proc. art. 44.01(a)(5). But the State āmay not make an appealā under Article 44.01 ālater than the 20th day after the date on which the order .;. to be appealed is entered by the court.ā Tex. Code Crim, Proc. art. 44.01(d).
This Court was first called upon to construe what āentered by the courtā meant for purposes of Article 44.01(d), in 1991. Rosenbaum, 818 S.W.2d at 402. There we noted that then-Rule 41(b)(1) of the Texas Rules of Appellate Procedure (since re-codified as Rule 26.2(b)) generally provided that an appeal was perfected with respect to an appealable order when notice of appeal is filed within fifteen days (now twenty) from āthe day [the] appealable order is signed by the trial judge[.]ā Id. at 400 (emphasis added). We recognized that āthis Court has long held that the signing of a[n] ... order is a function of the court separate and distinct from the entry of said ... order into the records of the court.ā Id. at 401. āEntry into the records of the court is merely ministerial in nature.ā Id āAs a practical matter,ā we observed in Rosenbaum, āa judge may never really know when a signed' order ... is ' physically entered into the record. There are no consistent deadlines for clerical entry into the record in the courts throughout Texas.ā M at 402. In order to' avoid the anomaly of tying the inception of the period for filing a notice of appeal to sĆŗch an indefinite date, we chose to construe the phrase āentered by the courtā in Article 44.01(d) to mean; the same as the general provision for perfecting an appeal in former Rule 41(b)(1), holding that āthe term āentered by the courtā encompasses the signing of an order by the trial judge.ā Id.
Both Presiding Judge McCormick and Judge Baird took issue with the Courtās construction of Article 44.01(d) in these cases. Rosenbaum, 818 S.W,2d at 403-05 (Baird, J., joined by McCormick, P.J., concurring); Bage, 822 S.W.2d, at 57 (McCor
But the majorityās holding that the notice-of-appeal period begins with the trial courtās signing of the appealable order carried the day, and it has been ingrained in the law now for twenty-five years. This is not to say, of course, that starting the period' for filing a Stateās notice of appeal on the date the appealable order is signed (rather than the date when the clerk enters it into the record) is not without its own potential for indefiniteness. Bage itself illustrates as much. In Bage, as in the instant case, the State did not even learn that the trial court had signed an appeal-able order granting a motion to quash the indictment until the then fifteen-day period for filing its notice of appeal under Article 44.01(d) had already expired. 822 S.W.2d at 58 (McCormick, P.J., dissenting). This Court nevertheless chose to adhere to Rosenbaumās construction of the phrase āentered by the courtā in Article 44.01(d), and refused to mandamus the district clerk to accept, the Stateās untimely notice of appeal, reasoning that the clerk had āno ministerial duty to file the Stateās appeal.ā Id. at 57. On the strength of the holdings in Rosenbaum and Bage, and because ā[a] timely notice of appeal is necessary to invoke a court of appealsā jurisdietion[,]ā Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App,1996),. the court of appeals in this case regretfully dismissed the Stateās appeal. Wachtendorf, 2015 WL 894731, at *2.
The Stateās Complaint
The State does not now reiterate the argument it made at the September 25th hearing on its motion for reconsideration; it does not urge us to revisit the phrase āentered by the courtā under Article 44.01(d), and ask us to re-construe it to mean the date the appealable order was file-stamped. Nor does the State ask us to embrace the view of Presiding Judge McCormick and Judge Baird, that āenteredā means spread on the minutes of the court ā and for good reason. As the facts of this very case demonstrate, a district clerkās file mark will not always constitute definitive evidence of when a document was actually āfiled,ā much less spread on the minutes of the court.
The fact of the matter is that, in any given case; there will be a potential notice problem for the State regardless of whether the date for beginning the period for filing its notice of appeal is the date that the order was signed or the date that it was spread on the minutes of the court. Whichever of these events is deemed to trigger the appellate timetable, the State may not become actually aware of that event before the time has run out to file its notice of appeal. Accordingly, the State does not now vigorously argue that Rosen-baum and Bage should be overruled; it simply argues that these precedents
Judicially Required Notice
In essence, what the State'Would have us do is to adopt a rule ā as a matter of decisional law ā similar to Rule 306a of the Texas Rules of Civil Procedure. Like Article 44.01 of the Code of Criminal Procedure and Rule 26.2(b) of the Rules of Appellate Procedure, Rule 306a provides that the timetables for various procedural requirements begins on ā[t]he date [the] order is signed as shown of reeordf.]ā Tex.R. Civ. Proc. 306a(1). But unlike Article 44.01 or Rule 26.2(b), Rule 306a provides that, when an appealable order is signed, the courtās clerk āshall immediately give notice to the parties... that the ... order was signed.ā Id. (3). If a party can prove to the trial court that it failed to receive such notice or acquire actual notice within twenty days of the signed order, then the beginning of the procedural timetables is postponed until the date of notice or actual knowledge, āwhichever occurred first[.]ā Id. (4) & (5); John v. Marshall Health Services, Inc., 58 S.W.3d 738, 740-41 (Tex.2001). The State urges us to adopt a similar rule that would delay 'the inception of the period within which its notice of appeal is due until such time as it becomes aware that the order granting the motion to suppress has been signed.
Rule 306a is more or less an omnibus provision, intended to apply equally to all parties and to numerous procedural timetables in civil practice. Here, the State would have us carve out a unique rule that applies to only one party (the State) and to one particular procedural timetable (interlocutory notice of appeal). We are hesitant to fashion such a specific procedural rule by judicial fiat and out of whole cloth. We recognize that the Texas Supreme Court has cautioned the lower appellate courts āto construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.ā Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.1997). But the Supreme Court has reciprocally recognized that this Courtās āapproach to the perfection of appeals in criminal cases has differed significantly from [its own] more liberal approach.ā - Id. at 616 (citing Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996) ā the very case that the court of appeals relied upon in this case to dismiss the Stateās appeal). We shall not import into Article 44.01(d) and Rule 26.2(b) an elaborate notice requirement that the Legislature itself did not see fit to impose. We think that the Stateās suggestion that we append a- notice provision not currently in either provision is more appropriately addressed to this Courtās Rules Committee, as an exercise of our limited but legislatively endowed rule-making authority ā perhaps to revise current Rule 26.2(b) to add such Ć” notice requirement. See Acts 1985, 69th Leg., ch. 685, § 1, p. 2472, eff. June 1, 1985 (granting this Court ārulemaking power to promulgate rules of posttrial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of a
In any event, the State was not entirely powerless to preserve its interests in this case. There are actions it could have taken to ensure a timely notice of appeal. First of all, it is uncontested that the signed order was placed in the clerkās record at some point between July 7th and September 25th. From that (albeit undisclosed) point on, .the. State was placed on constructive notice that the order granting. Appelleeās motion to suppress had been signed.
What is more, the State could have been far more proactive in protecting its right to appeal in this case. In addition to monitoring the district clerkās record, the
CONCLUSION
For the reasons given, we cannot conclude that the court of appeals erred to follow our precedents and dismiss the Stateās appeal for lack of jurisdiction. We affirm its judgment. .
. See State v. Cullen, 195 S.W.3d 696 (Tex. Crim.App.2006) (at the request of the losing party in a motion to suppress, the trial court is required to enter express findings of fact and conclusions of law).
. See Black v. State, 362 S.W.3d 626, 635 (Tex.Crim.App.2012) (a ruling on a motion to suppress is interlocutory, and the trial court may reconsider its ruling at any time before the end of trial).
. The entire colloquy reads:
THE COURT: Well, I donāt see an order signed, either, so unless youāve got a copy of it ā and, again, Iām kind ofā
. [PROSECUTOR]: And I would object to anything thatās not the original in the Courtās file.
THE COURT: Okay. I lied. There it is. Itās not file-marked.
[PROSECUTOR]: Then itās not ā then itās not entered of record.
THE COURT: Well, this is on the Motion to Suppress Blood Specimen heard on February 14th and signed July 7th, 2014.
[PROSECUTOR]: Then itās* still-not entered of record if itās not file-stamped:
. An identical copy of the proposed order that was attached to Appelleeās motion to suppress appears on page 43 of the Clorkās Record. On this copy, however, the word "GRANTEDā is circled, the word "DENIEDā is scratched out, and a handwritten notation indicates that it was ā[s]igned the 7th day of July, 2014.ā The judge's signature appears on the signature line. It is file-stamped at 3:15 p.m. on September 25, 2014, howeverā the same date as the hearing- on the Stateās motion for reconsideration, which had commenced at 1:55 p.m.
. When the Texas Rules of Appellate Procedure were redrafted, effective in 1997, former Rule 41(b)(1) wĆ”s rewritten. Ironically, under current Rule 26.2(b), now specifically governing the State's perfection of appeal, a Stateās notice of appeal from an appealable order must be filed within a certain period of time "after the day the trial court enters the order ... to be appealed.ā Tex.R.App. P. 26.2(b). Thus, the actual language of Article 44.01(d) ("entered by the, courtā) now corresponds to the actual language in Rule 26.2(b) ("the trial court enters the orderā), and neither provision speaks explicitly in terms of when the trial court signs the order. Still, the commentary following Rule 26 makes clear that the 1997 revision was riot meant to be substantive, Sea id. Notes and Comments, at 221 (Vernonās 2003); see also, 60 Tex. B J. 900 (1997) ("Nonsubstantive changes are made in the rule for criminal cases.ā). We must presume that the construction that we gave to the phrase "entered by the courtā in Rosenbaum has been carried over into Rule 26.2(b)ā namely, that a trial judge "entersā an appeal-able order under Article 44.01 on the date that he signs it.
. "In a criminal proceeding, a clerk of the district ... court shall ... receive and file all papers ... and ... perform all other duties imposed on the clerk by law.ā Tex.Code Crim. Proc. art. 2.21(a)(1) & (6). "The clerk of a district court shall ... record the acts and proceedings of the court[.]ā Tex. Govāt Code § 51.303(b)(1).
. See Williams v. State, 767 S.W.2d 868, 871 (Tex.App,-Dallas 1989, pet. ref'd) (āIn civil cases, an instrument is generally deemed filed when it is left with the clerk regardless of whether a file mark is placed on the instrument. [citation omitted.] We see no reason why the same rule should not apply in criminal cases, and we hold that it does."); Perkins v. State, 7 S.W.3d 683, 686 (Tex.App.-Texarkana 1999, pet, refād) (āAn information is filed when it is delivered-to or left with the clerk, despite the absence of a file stamp on the document.ā); In re Smith, 270 S.W.3d 783, 786 (Tex.App.-Waco 2008, no pet. h.) (a document is āgenerally considered to have been āfiledā ā when tendered to the clerk, whether or not it is file-marked).
. The only other date certain in this case is the date the signed order was ultimately filed-stamped, on September 25th. But that was obviously not the date on which the signed order was tendered to the district clerk, and thus āfiled," much less when it may have been spread on the minutes of the court. To treat September 25th as the operative date to begin the notice-of-appeal timetable would be tantamount to allowing the State to appeal, not the granting of the motion to suppress, but the refusal of the trial court to rule in the Stateās favor on its motion for reconsideration of the granting of Appelleeās motion to suppress, which was the motion that was actually heard on September 25th. But, as Appellee pointed out to the trial court, we have unanimously held that any ruling on such a Stateās motion for reconsideration does not constitute an appealable order under Article 44.01. State v. Cowsert, 207 S.W.3d 347, 351 (Tex.Crim.App.2006). If, by file-stamping the order on September 25th, the trial court meant it to count as an order overruling the State's motion to reconsider, that order was simply not appealable under Cowsert.
. "Inherent in the [C]ourt of [C]riminal [A]p-pealsās final appellate jurisdiction ... is the authority to adopt or make [as a matter of decisional law] procedural requirements for the trial, appeal, and review of criminal cases. These rules must not conflict with any statutory or constitutional provisions, and they must be āreasonable,ā " George E. Dix & John M. Schmolesky, 40 Texas Practice: Criminal Practice and Procedure § 1:3, at 5 (3rd ed.2011). For example, State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006), see note 2, ante, "probably reflects [this Courtās] exercise of an inherent power to make procedural rules by decisional law.ā Dix & Schmolesky at 6. Nevertheless, since the Legislature conferred rulemaking authority on ā the Court in 1985, that "rulemaking power may require the [C]ourt of [C]riminal [A]ppeals to make some changes in the law by exercising that [rulemaking] authority rather than construing [as a matter of decisional law] a rule as adopted.ā Id. § 1:10, at 13. And āsubstantive changes in court rules should arguably be made by exercise of the [C]ourtās authority to amend or modify its rules rather than by judicial construction. Such modification often affects the interests of persons not parties to particular litigation, The rule-amending process provides those parties a fairer opportunity for input,ā Id. §' 2:35, at 76. Moreover, "[r]ulemaking authority is almost certainly granted [by the Legislature] to the courts with the understanding it ā rather than judicial construction ā will be used for general modification of rules once promulgated.ā Id. at 77. We will not "construeā either Article 44.01 or -Rule 26.2(b) to contain an elaborate notice requirement that finds no source whatsoever, explicit or implicit, in the actual language of either provision.
. āA person .has notice of a fact .,. if that person [among other things] is considered as having been able to ascertain it by checking an official filing or recording.ā Blackās Law Dictionary 1227 (10th ed.2014). Indeed, the State seems to concede that filing of the signed order would suffice to provide adequate notice when if complained that a trial court could thwart its right to appeal by waiting more than twenty days to file its signed order- or "otherwise giv[e] the State notice of the existence of said order[.]ā State's Brief at 15 (emphasis added),
; As we have already observed, see.text at page 5-6, anta, as late as' the hearing on November 6th, the State argued that "the question now becomes whether' or not the Courts signing of the order versus the entering of it by the district clerk ā the date of-ā the effective date,"
. The State complains that an unscrupulous trial court could insulate its ruling from appellate review and altogether rob the State of its right to interlocutory appeal of a motion to suppress by deliberately signing an order granting the motion and then withholding the order from the district clerk for 'twenty days. There is no suggĆ©stion of such conduct in this case. And even if we shared the Stateās póint of view, we would observe that it is wholly within the State's ability to obviate such machinations by filing a premature notice of appeal as we have suggested in the text.