State v. Kyle Duckett

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00390-CR The State of Texas, Appellant v. Kyle Duckett, Appellee FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY NO. 52,204, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING The State seeks to exercise its limited right to appeal. See Tex. Code Crim. Proc. Ann. art. 44.01 (West Supp. 1999). Because we find that no statutory ground for a State appeal is present, we will dismiss the appeal. After being convicted in municipal court for being a minor in possession of alcohol, appellee Kyle Duckett appealed to the county court at law. See Tex. Code Crim. Proc. Ann. art. 44.17 (West Supp. 1999). Such an appeal is by trial de novo. Id. When the cause was called for trial, both parties were present and announced ready. The witnesses were sworn and the rule was invoked. When the complaint was read, it was discovered that the complaint on file was defective. (1) After some discussion among the parties and the court regarding the problem this presented, if any, Duckett entered his plea of not guilty to the defective complaint. At this point, the State asked permission to file what it called the correct complaint. Duckett objected and the motion was overruled. The State then moved for a continuance. This also was denied. Finally, the State moved to amend the complaint on file. Again, Duckett objected and the motion was overruled. The Court asked the State if it wished to proceed with proof. The prosecutor replied that the State offered no evidence. Duckett then moved for and was granted a finding of not guilty. The court's written judgment is styled "judgment and dismissal." The judgment recites that the cause was called for trial before the court after Duckett waived his right to trial by jury, that Duckett pleaded not guilty, and that "after all of the proceedings were complete and both sides closed, there was a finding of NOT GUILTY by the Court." The judgment concludes, "IT IS THEREFORE CONSIDERED ORDERED, ADJUDGED AND DECREED BY THIS COURT, that this cause is dismissed with prejudice." The State asserts three points of error in its brief: (1) the county court at law did not have jurisdiction in the absence of a proper complaint, (2) the court erred by overruling the State's motion to amend the complaint, and (3) the court erred by overruling the State's motion for continuance. The State's brief does not cite the authority by which it invokes this Court's jurisdiction to consider these points. The county court at law's judgment confirms what the reporter's record reflects: that Duckett was tried and found not guilty by the court. Article 44.01 does not permit the State to appeal from a judgment of acquittal. Nor may the State invoke its authority to appeal under article 44.01(a)(1), even if we were to treat the court's judgment as merely an order of dismissal. Article 44.01(a)(1) permits the State to appeal an order dismissing an "indictment, information, or complaint." The court's judgment dismisses the "cause," not the complaint. See Taylor v. State, 886 S.W.2d 262, 266 (Tex. Crim. App. 1994); State v. Stone, 785 S.W.2d 432 (Tex. App.--Eastland 1990, no pet.) (State may appeal only orders of the type listed in article 44.01); see also 42 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 30.02 (Texas Practice 1995). Moreover, double jeopardy considerations bar the State from appealing a dismissal after jeopardy has attached. See State v. Manning, 833 S.W.2d 322, 323 (Tex. App.--Waco 1992, no pet.); 43 Dix & Dawson, supra, § 43.151. The court of criminal appeals indicated as much when it stated that article 44.01(a)(1) allows the State to appeal an order "whenever the effect of [the] order forces any alteration of the indictment or information before the trial on the merits . . . ." State v. Moreno, 807 S.W.2d 327, 334 (Tex. Crim. App. 1991); see also State v. Mohsene, 936 S.W.2d 732, 734 (Tex. App.--Dallas 1996, no pet.). In this cause, jeopardy attached when Duckett entered his plea. See State v. Torres, 805 S.W.2d 418, 421 (Tex. Crim. App. 1991). The appeal is dismissed. J. Woodfin Jones, Justice Before Justices Jones, B. A. Smith and Yeakel Dismissed for Want of Jurisdiction Filed: March 18, 1999 Do Not Publish 1. The complaint failed to allege the primary element of the offense, possession of an alcoholic beverage. See Tex. Alco. Bev. Code Ann. § 106.05(a) (West Supp. 1999). TYLE="font-size: 11pt"> NO. 52,204, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING The State seeks to exercise its limited right to appeal. See Tex. Code Crim. Proc. Ann. art. 44.01 (West Supp. 1999). Because we find that no statutory ground for a State appeal is present, we will dismiss the appeal. After being convicted in municipal court for being a minor in possession of alcohol, appellee Kyle Duckett appealed to the county court at law. See Tex. Code Crim. Proc. Ann. art. 44.17 (West Supp. 1999). Such an appeal is by trial de novo. Id. When the cause was called for trial, both parties were present and announced ready. The witnesses were sworn and the rule was invoked. When the complaint was read, it was discovered that the complaint on file was defective. (1) After some discussion among the parties and the court regarding the problem this presented, if any, Duckett entered his plea of not guilty to the defective complaint. At this point, the State asked permission to file what it called the correct complaint. Duckett objected and the motion was overruled. The State then moved for a continuance. This also was denied. Finally, the State moved to amend the complaint on file. Again, Duckett objected and the motion was overruled. The Court asked the State if it wished to proceed with proof. The prosecutor replied that the State offered no evidence. Duckett then moved for and was granted a finding of not guilty. The court's written judgment is styled "judgment and dismissal." The judgment recites that the cause was called for trial before the court after Duckett waived his right to trial by jury, that Duckett pleaded not guilty, and that "after all of the proceedings were complete and both sides closed, there was a finding of NOT GUILTY by the Court." The judgment concludes, "IT IS THEREFORE CONSIDERED ORDERED, ADJUDGED AND DECREED BY THIS COURT, that this cause is dismissed with prejudice." The State asserts three points of error in its brief: (1) the county court at law did not have jurisdiction in the absence of a proper complaint, (2) the court erred by overruling the State's motion to amend the complaint, and (3) the court erred by overruling the State's motion for continuance. The State's brief does not cite the authority by which it invokes this Court's jurisdiction to consider these points. The county court at law's judgment confirms what the reporter's record reflects: that Duckett was tried and found not guilty by the court. Article 44.01 does not permit the State to appeal from a judgment of acquittal. Nor may the State invoke its authority to appeal under article 44.01(a)(1), even if we were to treat the court's judgment as merely an order of dismissal. Article 44.01(a)(1) permits the State to appeal an order dismissing an "indictment, information, or complaint." The court's judgment dismisses the "cause," not the complaint. See Taylor v. State, 886 S.W.2d 262, 266 (Tex. Crim. App. 1994); State v. Stone, 785 S.W.2d 432 (Tex. App.--Eastland 1990, no pet.) (State may appeal only orders of the type listed in article 44.01); see also 42 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 30.02 (Texas Practice 1995). Moreover, double jeopardy considerations bar the State from appealing a dismissal after jeopardy has attached. See State v. Manning, 833 S.W.2d 322, 323 (Tex. App.--Waco 1992, no pet.); 43 Dix & Dawson, supra, § 43.151. The court of criminal appeals indicated as much when it stated that article 44.01(a)(1) allows the State to appeal an order "w