Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/19/2015 9:12:20 AM JEFFREY D. KYLE Clerk NO. 03-15-00620-CR THIRD COURT OF APPEALS 10/19/2015 9:12:20 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00620-CR *1 ACCEPTED [7425375] CLERK IN THE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS AT AUSTIN __________________________________________________________________
NO. D-1-DC-09-900185-CR IN THE 167TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS __________________________________________________________________
STATE OF TEXAS, APPELLANT V.
DENNIS DAVIS, APPELLEE __________________________________________________________________
APPELLEE’S MOTION TO DISMISS THE STATE’S APPEAL __________________________________________________________________
LINDA ICENHAUER-RAMIREZ ATTORNEY AT LAW 1103 NUECES AUSTIN, TEXAS 78701 TELEPHONE: 512-477-7991 FACSIMILE 512-477-3580 EMAIL: LJIR@AOL.COM SBN: 10382944 ATTORNEY FOR APPELLEE *2 TO THE HONORABLE THIRD COURT OF APPEALS:
COMES NOW, Dennis Davis, Appellee, by and through his attorney of record, Linda Icenhauer-Ramirez, and files this his Motion to Dismiss the
Appeal and in support thereof, would show the Court the following:
I. That the above-styled and numbered cause is styled The State of Texas v. Dennis Davis, Cause Number D-1-DC-09-900185-CR in the 167th
Judicial District Court of Travis County, Texas. On September 9, 2015,
the trial court signed and filed an Order Setting Aside Indictment For Failure
to Afford Constitutional Right to a Speedy Trial. (C.R. 684) On September
10, 2015, the trial court signed and filed its Findings of Fact and
Conclusions of Law Regarding Defendant’s Motion to Set Aside for
Violation of Sixth Amendment. (C.R. 685-691)
II. The murder with which appellee was charged occurred o/a October 13, 1985. Twenty-four years later, in June of 2009, appellee was indicted
for that murder. Two years later, appellee was tried and convicted of murder
and assessed a prison sentence of thirty-six years imprisonment. That
conviction was reversed on appeal and remanded back to the trial court by
the Third Court of Appeals because of ineffective assistance of counsel.
Davis v. State, 413 S.W.3d 816 (Tex.App.-Austin, pet. ref.) on August 30,
2013.
III. On November 19, 2014, appellee filed a Motion to Set Aside Indictment For Failure to Afford a Constitutional Right to Speedy Trial.
(C.R. 204-399). A Second Motion to Set Aside Indictment For Failure to
Afford a Constitutional Right to Speedy Trial was filed on July 14, 2015.
(C.R. 455-678) On September 9, 2015, the trial court granted appellee’s
motion. (C.R. 684) On September 10, 2015, the trial court signed and filed
its Findings of Fact and Conclusions of Law Regarding Defendant’s Motion
to Set Aside for Violation of Sixth Amendment. (C.R. 685-691) On
September 30, 2015, the State filed a written notice of appeal. This notice of
appeal stated that the State sought to appeal the order dismissing the
indictment and saying that a copy of that order was attached to the notice of
appeal. Attached to this notice of appeal was a copy of the trial court’s
Findings of Fact and Conclusions of Law Regarding Defendant’s Motion to
Set Aside for Violation of Sixth Amendment (C.R. 754-762) On October
1, 2015, the State filed another notice of appeal saying that the State sought
to appeal the order dismissing the indictment and saying that a copy of that
order was attached to the notice of appeal. Attached to this notice of appeal
was a copy of the trial court’s Order Setting Aside Indictment For Failure to
Afford Constitutional Right to Speedy Trial. (C.R. 764)
IV.
THE STATE’S APPEAL MUST BE DISMISSED BECAUSE UNDER
ART. 44.01, V.A.C.C.P, THE STATE HAS NO RIGHT TO APPEAL A
TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF
LAW AFTER AN INDICTMENT HAS BEEN SET ASIDE .
Art. 44.01, V.A.C.C.P. gives the State a limited right to appeal an order of a court in a criminal case. The State may appeal from an order
that:
(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.
In this cause, the State seeks to appeal the trial court’s findings of fact and
conclusions of law regarding its order setting aside the indictment because of
the denial of appellee’s right to a speedy trial. Art. 44.01, V.A.C.C.P.
Such an order is not one of those listed in Art. 44.01 and thus does constitute
the type of order the State can appeal.
On October 15, 2015, the State filed a motion to consolidate the appeal in this cause with the State’s appeal in Cause No. 03-15-00616-CR,
an appeal from the trial court’s dismissal of the indictment. In its motion to
consolidate, the State asserted that as part of the appeal from the order of
dismissal, the State “intends to challenge the factual findings and legal
conclusions that are set forth in the Findings.” Again, such a challenge to
the trial court’s findings of fact and conclusions of law is not one of the
narrow grounds of appeal afforded by Art. 44.01, V.A.C.C.P. Appellee
asserts that consolidation of this appeal with Cause No. 03-15-00616-CR is
not the proper remedy for the State’s error.
Because the legislature did not give the State the right to appeal a trial court’s findings of fact and conclusions of law, the proper remedy is to
dismiss this appeal.
V.
THE STATE’S SECOND NOTICE OF APPEAL SHOULD BE
STRUCK BECAUSE IT FAILS TO COMPLY WITH
TEX.R.APP.PROC. 25.2(F).
Appellant acknowledges that the State filed a second notice of appeal *6 in this cause purporting to appeal the trial court’s order dismissing the
indictment. Appellant asserts that this second notice of appeal should be
struck in that the State’s second notice of appeal is not in compliance with
Tex.R.App.Proc. 25.2(f) in that it was not filed as an amended notice of
appeal.
WHEREFORE, PREMISES CONSIDERED, appellee respectfully
requests that this Honorable Court dismiss the State’s appeal in this cause.
Respectfully Submitted, /s/ Linda Icenhauer-Ramirez LINDA ICENHAUER-RAMIREZ Attorney at Law 1103 Nueces Austin, Texas 78701 (512) 477-7991 FAX #: (512) 477-3580 SBN: 10382944 EMAIL: ljir@aol.com ATTORNEY FOR APPELLEE CERTIFICATE OF COMPLIANCE I hereby certify that this motion was computer generated and contains 1092 words, as calculated by the word count function on my computer.
/s/ Linda Icenhauer-Ramirez LINDA ICENHAUER-RAMIREZ *7 CERTIFICATE OF SERVICE I, Linda Icenhauer-Ramirez, hereby certify that a true and correct copy of the foregoing Appellee’s Motion to Dismiss the State’s Appeal was
e-served to Scott Taliaferro of the Travis County District Attorney's Office
on this the 19th day of October, 2015.
/s/ Linda Icenhauer-Ramirez LINDA ICENHAUER-RAMIREZ