State v. Muller

In State v. Muller, 829 S.W.2d 805, 809 (Tex. Crim. App. 1992), an assistant prosecuting attorney signed the notice of appeal. The court of criminal appeals held that article 44.01(d)'s phrase "'make an appeal' clearly requires . . . the prosecuting attorney to personally supervise and authorize the appeals to be undertaken by his office on behalf of the State." Id. at 810. And, the court held that pursuant to article 44.01, "prosecuting attorney" clearly does not include an assistant prosecutor or subordinate. Id. at 809. However, the prosecuting attorney need not sign the notice of appeal to "make an appeal"; he must "either physically sign the notice of appeal or personally instruct and authorize a subordinate to sign the specific notice of appeal in question." Id. at 810. And, "this personal authorization must occur prior to the expiration of the fifteen day window of appeal." Id. The Court was asked to decide whether the Court of Appeals erred by using former Rule 83 to allow the State to cure a defective notice of appeal by filing an amended notice of appeal after the time for filing the notice had expired. The Court explained that Article 44.01(d) not only prescribes procedural guidelines, but it limits the State's authority to appeal. Id. at 812 (quoting State v. Demaret, 764 S.W.2d 857, 858 (Tex. App. - Austin 1989, no pet.). Under Article 44.01(d), the State has fifteen days to file an appeal. After the fifteenth day, the State's authority to appeal under the statute ceases to exist. Thus we concluded, because the Court of Appeals permitted the State to amend its notice after the fifteenth day, it impermissibly used the Rules of Appellate Procedure to "create a jurisdictional-enlarging procedure neither expressly contained nor implicated by the literal text of the statute." Id. The Court made clear that "the State's noncompliance with the specific provisions of Art. 44.01 is a substantive failure to invoke the court of appeals' statutorily defined jurisdiction." Muller, 829 S.W.2d at 812. The Court concluded that Art. 44.01 "does more than merely prescribe a procedural guideline for filing the State's notice of appeal. Rather it limits the State's substantive authority to appeal." Ibid., citing State v. Demaret, 764 S.W.2d 857, 858 (Tex. App. -- Austin 1989, no pet.). The certification requirement is in Art. 44.01, and the Courts have held that the failure to comply with Art. 44.01 is a substantive defect which deprives the court of appeals of jurisdiction.