Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 364th District Court Lubbock County, Texas
Trial Court No. 2016-410, 627, Honorable William R. Eichman
QUINN, C.J., and PIRTLE and PARKER, JJ.
QUINN CHIEF JUSTICE.
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.
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.
Two - Search of Vehicle
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.
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.
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
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.
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,
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
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").
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 ...