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State v. Janssen

Court of Appeals of Texas, Seventh District, Amarillo

December 12, 2019


          On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2016-410, 627, Honorable William R. Eichman II, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.



         This is an appeal by the State from an order granting and denying, in part, a motion to suppress evidence filed by Matthew Janssen. The evidence in question involved controlled substances and drug paraphernalia. Janssen moved to suppress it because of purported violations of his constitutional rights against unreasonable searches and seizures. We reverse in part.

         The appellate record reveals multiple searches and seizures in dispute. They were 1) a search following Janssen's arrest of the vehicle operated by Janssen, 2) the detention and search of Juan Levario and his vehicle as he was found leaving Apartment #3011, and 3) the search of Apartment #3011 via a warrant. Janssen sought to attack each through a single motion to suppress, but, with the approval of the litigants, the trial court considered them in segments over a period of time. So too did it appear to rule on different aspects of the motion at different times and issued two sets of findings of fact and conclusions of law explaining its rulings. Ultimately though, it ordered that "[t]he evidence obtained as a result of [Janssen's] . . . vehicle search and the search of Apartment #3011 should be suppressed" while that "obtained as a result of the detention and search of Juan Levario's person and vehicle" should not. The State avers multiple issues for our review. We consider only those necessary to the disposition of the appeal and over which we have jurisdiction. Furthermore, we do not necessarily consider them in the sequence presented within the State's appellate brief.

         Issue Two - Search of Vehicle

         Janssen was arrested in a local bar on Broadway Avenue after selling controlled substances to a confidential informant. Upon his arrest, the officers found a key fob on him. They went outside and depressed the fob multiple times. Eventually, a Hyundai automobile across the street from the bar emitted a signal. That resulted in the officers approaching the Hyundai and searching it. In doing so, they found a utility bill addressed to the aforementioned Apartment #3011.

         Janssen questioned the lawfulness of this vehicle search through a two-fold attack. First, he argued that using the fob to find the car was an improper search and then that searching the car itself was improper. The trial court agreed and issued signed findings of fact and conclusions of law memorializing its decision on May 14, 2018. The reasons for deciding as it did were mentioned in that document, which document concluded with the statement: "All evidence found as a result of the search of the vehicle is tainted, and is, therefore, suppressed." The initial question before us is whether we have jurisdiction to entertain this issue.

         The State's ability to appeal in a criminal case is statutorily created. State v. Sellers, 790 S.W.2d 316, 316 (Tex. Crim. App. 1990) (en banc). Thus, the terms of the statute must be followed. The statute in question here is article 44.01 (a)(5) of the Texas Code of Criminal Procedure, and it permits an interlocutory appeal from "an order of a court . . . if the order . . . grants a motion to suppress evidence." Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West 2018). The State's effort, however, "may not [occur] . . . later than the 20th day after the date on which the order, ruling, or sentence to be appealed is entered by the court." Id. art. 44.01 (d); see Tex. R. App. P. 26.2(b) (reiterating the content of article 44.01(d)). Furthermore, the order is entered by the court, for purposes of 44.01(d), when signed by the trial judge. State v. Rosenbaum, 818 S.W.2d 398, 402-03 (Tex. Crim. App. 1991) (en banc). And, since "[a]n order cannot be signed unless it is written," State v. Sanavongxay, 407 S.W.3d 252, 258-59 (Tex. Crim. App. 2012), the order or ruling must be in writing. Id; State v. Ortiz, No. 07-10-0233-CR, 2010 Tex.App. LEXIS 9796, at *2 (Tex. App.-Amarillo Dec. 10, 2010, no pet.) (per curiam) (mem. op., not designated for publication) (holding that the appeal must be from a written order signed by the trial judge).

         Here, the State attempted to perfect its appeal by filing a notice on April 29, 2019. Within that notice, it referred to the order from which it was appealing. That order was signed on April 10, 2019. It encompassed the entirety of Janssen's motion to suppress. That is, the legality of the various searches undertaken by the police were considered in separate hearings apparently by agreement of the parties. The trial court first addressed the search of the blue Hyundai, held an evidentiary hearing, and ultimately issued its May 14, 2018 findings and conclusions of law. The remaining searches were the topic of a hearing held in November 2018. The court made various oral rulings at the end of the hearing and ultimately issued the April 10, 2019 written order.

         Within the April 10th writing, the court reiterated its earlier ruling regarding the search of the blue Hyundai and ruled on the matters discussed at the November 2018 gathering. So too did it issue an additional set of findings and conclusions of law encompassing the issues heard at the November hearing. Those findings and conclusions also were signed on April 10, 2019.

         Again, the question before us is whether the State's effort to appeal the blue Hyundai ruling was timely. It appeared within findings and conclusions signed in May 2018, and ending with the announcement that the evidence obtained "is tainted, and is, therefore, suppressed." Our answer to the question depends on whether the May 2018 findings and conclusions constituted a written ruling or order signed by the court.

         No doubt, an order or ruling may come in many forms. Because of that, courts periodically have dealt with whether something said by the judge in a writing truly is an order or ruling. Various indicia were developed to help determine that. They include whether the writing 1) identifies the parties, 2) contains the cause number, 3) is signed and dated by the court, 4) illustrates a decision actually rendered, 5) describes that decision with certainty as to its effect on the parties, and 6) is publicly revealed through it being filed of record. See, e.g., Schaeffer Homes, Inc. v. Esterak, 792 S.W.2d 567, 569 (Tex. App.-El Paso 1990, no writ) (per curiam) (holding that the court's letter was an order since it was dated, signed, identified the parties and cause number, illustrated a decision "actually rendered," described the decision with "certainty as to parties and effect," and was filed of record); accord In re Newby, 266 S.W.3d 557, 558 (Tex. App.- Amarillo 2008, orig. proceeding) (per curiam) (holding that the letter was an order because it "require[d] no further action memorializing [the] rulings," "contain[ed] the name and cause number of the case, the court's diction is affirmative rather than anticipatory of rulings on relator's motions, . . . bears a date, . . . was signed by the court, and was filed with the district clerk"). Also influential is whether the writing contemplates the need for future action by the court. See Ortiz, 2010 Tex.App. LEXIS 9796, at *2-3 (stating that the phrase "should be granted" in the court's fact findings and legal conclusions expressed a future intention to grant the motion to suppress); State v. Sorrell, No. 05-01-00658-CR, 2001 Tex.App. LEXIS 8380, at *2 (Tex. App.-Dallas Dec. 19, 2001, no pet.) (holding that the statement in findings that "the seized marijuana must be suppressed" was "nothing more than the judge's expression of the proper action to be taken in light of the fact findings").

         Here, the final statement made in the May 2018 fact findings and legal conclusions differed from that in Ortiz and Sorrell. Instead of "should be granted" or "must be suppressed," the court said the evidence "is tainted, and is, therefore, suppressed." Unlike "should be" or "must be," we have "is . . . suppressed." The latter denotes present action to suppress the evidence now. It is definitive, clear, and understandable. Furthermore, the litigants and court so interpreted the directive at the November hearing. For instance, the State said: "But we figured that we could start today by putting on testimony of kind of our theory of the case of why we believe our case can still move forward regardless of your prior ruling." (Emphasis added). The trial court also stated "I know that previously, I had suppressed the search of the vehicle that was impounded . . . from the area around the Local Bar" and 7 found that it was an illegal search." (Emphasis added). Indeed, in its April 2019 findings and conclusions, the trial court also expressed that "[t]he evidence obtained pursuant to the first search (the vehicle search) was suppressed following a suppression hearing on October 31, 2017 (with findings of fact and conclusions of law in ...

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