PD-0832-24 11/20/2024
1. “Did the appeals court lose jurisdiction when Stephen Tyler, an assistant district attorney of Jackson County, rather than Pamela E. Guenther, the elected district attorney of Jackson County, filed the notice of appeal?”
2. “Did the appeals court regain its jurisdiction when the elected district attorney filed its corrected notice of appeal, January 29, 2024, 41 days after the trial court’s order of December 19, 2023 granting Petitioner a new trial?”
3. “Did the appeals court err, April 19, 2024, when it, by an order en banc, denied Petitioner’s motion to dismiss State’s appeal for want of jurisdiction?”
Lambert was found guilty of sexual assault of a child. He filed a motion for new trial alleging various grounds related to the statute of limitations. The trial court granted Lambert a new trial on December 19, 2023. The State filed a notice of appeal on January 5—within 20 days, see TEX. CODE CRIM. PROC. art. 44.01(d)—signed by the elected district attorney (DA) but which said it was appealing a December 4, 2023 order dismissing an information. On January 16, in response to a notice of defect from the court of appeals, the State filed a motion to retain the appeal that acknowledged the typographical error in the notice. The court of appeals granted the motion on January 25 and gave the State five days to file a corrected notice of appeal. The State filed one the next day but it was signed by an assistant district attorney (ADA). After the court of appeals pointed this out but within the time given to fix the problem, the State filed a second amended notice of appeal on January 29 signed by the DA.
Lambert filed a motion to dismiss the appeal for want of jurisdiction. He argued that the court of appeals “lost jurisdiction” over the appeal on January 9—20 days after the order granting the new trial was signed—because of the original notice’s defects. He also argued in the alternative that January 5 was outside the 15-day period for State’s appeals in effect at the time of the offense. The court of appeals rejected the latter argument out of hand. It also held that, because TEX. R. APP. P. 25.2(f) provides for amendments and the Court of Criminal Appeals (CCA) favors the repair of reparable errors, it had jurisdiction to proceed with the appeal on the second amended notice of appeal.
Lambert argues to the CCA that the original notice of appeal was wholly ineffective to establish jurisdiction because 1) it was filed outside the 15-day period he claims must apply “to avoid an Ex Post Facto issue,” and 2) it referred to a ruling that did not exist. Because jurisdiction was never established, he argues, Rule 25.2 could not be used to allow amendment. Thus, both the first (accurate) notice of appeal signed by an ADA and subsequent notice properly signed by the elected DA were filed well outside any applicable period.
