The CCA refused the State's PDR in Strong, 87 S.W.3d 206, in which I presume the State challenged the CA's determination that the State must file a notice of appeal in order for the court to have jurisdiction over a question of law raised as "cross-point" in the State's brief. In McClinton, the CCA said it did not need to determine the issue. So, while I imagine I know what is occurring in the Third, Fifth, and Ninth Districts, anyone still claiming error elsewhere without having filed a notice of appeal? Which court is right, San Antonio/El Paso or Dallas/Austin. Or was this issue decided in the court's action on the PDR in Strong?

[This message was edited by Martin Peterson on 08-12-04 at .]

Doesn't make any sense. Once jurisdiction attaches in the court of appeals,they should be able to address any issue that was properly preserved and within their authority to review. My two cents.

Plus, I suppose under Rule 26.2(b)the notice must be filed before you even know whether the Defendant is going to appeal? Cf. 44.01(d). And what purpose does a State's notice serve (aside from "perfecting" an appeal that really will only come into existence if and when the defendant files a notice)? I guess Strong actually means you should file a notice in every case that conceivably would lead to an appeal by the defendant? Is the court required to address an issue raised by the State if it affirms the conviction? Seems to me those courts were really just saying they did not like 44.01(c).

Maybe you can file a 44.01(c) notice within 15 days of the def notice of appeal. It would have worked out better in our Wooldridge appeal, see 135SW3d 312. The problem with filing a 44.01(c) prior to def filing of an appeal may be that they decide not to appeal and you cannot get the question of law answered. In that case, def sentenced on 6/13, State filed notice on 6/27 but on grounds of illegal sentence because could not cross-appeal since def had not filed appeal. Def did file an appeal on 7/13 but w/drew on 7/28. Could I have filed an amended notice of appeal and added 44.01(c)? If I did what would be the effect of the def w/drawing his appeal? Wouldn't that prevent me going forward with the 44.01(c) claim? There seems to be some injustice when the State cannot get a question of law answered unless the def appeals. What do others think about this? The State has no recourse if the judge incorrectly interprets the plain meaning of a statute. It seems that the judges are effectively overriding the legislature.

Seems pretty clear Judge Holloway misinterpreted Acts 1993, ch. 900, sec. 1.18. Castaneda, 911 S.W.2d 773. Also seems clear that sentences below the statutory minimum are void. Mizell, 119 S.W.3d at 805. It appears to me if the State has no right of appeal under those facts under 44.01(b), then it even more clearly is entitled to relief by mandamus? Mizell, 199 S.W.3d 806, fn. 9.

Would a legislative amendment to 44.01 help? Of course, a bill working on 44.01 could be dangerous.

Just for everyone's information, Wooldridge has been taken up to the CCA by the State Prosecutor's Office. They did not brief Mizell when they filed the PDR. Looks like they primarily relied on State v. Kersh, 127 SW2d 775 and and State v. Ross, 953 SW2d 748.

since my last post, El Paso went to the other side on the issue, but we now have the very intelligent dissenting opinion of Justice McClure to work with. Williams Dissent. I am having a hard time believing this issue is taking so long to resolve. Anyone know of other cases on point?

One of the issues in the Cannon motion for rehearing is that the COA did not consider a cross point, and the CCA sent it back to the trial court. The MFR asks, as an alternative, to send it back to the COA to consider the cross point. Then we can litigate all that NOA stuff if necessary.

Hmm. Interesting. The Dallas Court did not say your cross-point was not considered for want of NOA, but I guess they could still come back to that on remand. Hate to see the issue raised in a motion for rehearing- where it is so unlikely to be addressed. But, it seems to be a valid point that the State should be entitled to review merely as a result of Cannon's appeal (now that a reversal has been entered). Maybe what you should request is that the CCA review the cross-point if they are not going to remand to Dallas.

Update - Wooldridge was sentenced to 25 years Friday - wants to appeal - don't know what issues since the CCA foreclosed double jeopardy.

The CCA remanded Cannon for consideration of the cross-point. Surely that implicitly found the matter was properly brought forward for review. And apparently the Fifth Court decided not to concern itself with the jurisdictional question in its opinion issued July 24. Does all this mean there is no need for a NOA?

Not the Christmas present Wooldridge was looking for. Wooldridge V. Congrats to Taylor County on seeing that the law was properly construed and enforced.

A long and strange journey resulting from the legal stubbornness of a trial judge and the court of appeals. This case is a good example of why a CCA exists: to correct obvious legal mistakes that could impair the statewide application of criminal law. And thanks again to Judge Cathy Cochran who, years ago, fought to add a state's limited right to appeal illegal sentences to Texas law.

Thanks for posting the update, Martin.

Thanks -- it was a long hard fought battle. Funny how people can see the issue differently -- I still don't think I convinced the C o A that it was a legal issue, not a factul issue. Oral argument was a chore to argue this point.

The CCA has granted review in the Pfeiffer case, No. PD-11-1234.