State v. Brian Roland Chandler
03-14-00547-CR
Tex. App.Apr 10, 2015Background
- State appeals after a judgment nunc pro tunc to delete a deadly-weapon finding; notice of appeal signed by an assistant DA; elected DA later authorized the filing; issue concerns timely authorization under Article 44.01(d); court held the State’s appeal defective and not timely cured; order appealed was a nunc pro tunc correction, not a modifiable judgment under Article 44.01; court dismisses the appeal on both authorization and scope grounds; Chandler seeks dismissal of the State’s appeal.
- Appeal record shows: plea with no deadly-weapon finding; initial judgment contained such finding; nunc pro tunc judgment corrected the record; timely filing and authorization issues hinge on who signed the notice of appeal and when authorization occurred.
- Statutory framework limits State appeals to specified orders under Art. 44.01; Muller v. State holds personal approval by the prosecuting attorney required; State’s notice signed by assistant DA; affidavit by elected DA filed later did not cure timely defect.
- Court reasoned that the elected prosecuting attorney must personally authorize or sign the notice of appeal or timely authorize a subordinate; the August 7, 2014 notice signed by an assistant was defective and uncured by the October 2, 2014 affidavit.
- Court concludes: (1) State’s notice of appeal was not timely signed/authorized; (2) the nunc pro tunc order is not a type of appealable order under Art. 44.01; (3) the appeal must be dismissed for both authorization and scope reasons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the State’s notice of appeal timely signed/authorized? | Chandler argues authorization required personal approval of the elected DA. | Chandler contends assistant signed; authorization lacked by deadline. | Yes; the notice was defective and not timely cured. |
| Does Article 44.01 require personal authorization to file an appeal? | Chandler relies on Muller requiring personal supervision. | State argues authorization can be delegated. | Statute requires personal authorization prior to appeal period. |
| Is a judgment nunc pro tunc appealable under Art. 44.01? | Chandler asserts the order modifies the judgment. | State claims it is an appeal of a judgment order. | No; nunc pro tunc correction not within Art. 44.01 categories. |
Key Cases Cited
- Muller v. State, 829 S.W.2d 805 (Tex.Cr.App. 1992) (personal supervision and authorization required for appeals by the State)
- State v. Riewe, 13 S.W.3d 408 (Tex.Cr.App. 2000) (affidavit after the deadline cannot cure lack of timely authorization)