May-June 2011

Boosting our chances on a State’s appeal

John Stride

TDCAA Senior Appellate Attorney

The State’s right to appeal is strictly circumscribed. The scope of appealable issues is narrow and the procedures to pursue an appeal are a trap for the unwary. The State can appeal an order of a trial court in a criminal case only if the order dismisses an indictment or any portion of an indictment; arrests or modifies a judgment; grants a new trial; sustains a claim of former jeopardy; grants a motion to suppress evidence; is issued for forensic DNA evidence; or pronounces an illegal sentence.1 Indeed, the issues that the State may raise primarily follow those the government can appeal in federal cases.#2

    While the State—just like defendants—must present its arguments to the trial court to raise them on appeal, unlike defendants, the State must have a signed, written order to initiate its own appeal.#3 Also the notice of appeal is timely only if it is filed no later than the 20th day after the trial court’s appealable order. No extension of time will be granted.4# Further, the elected prosecutor must personally sign the notice.#5

    In addition, even if the State seeks to pursue a cross-appeal, the Court of Criminal Appeals has yet to decide whether, as the majority of the intermediate courts reaching the issue have held, it requires the State to file a notice of appeal when seeking a cross-appeal.6# With these considerable limitations, then, the State must make the most of the available procedures to maximize its chance of success on appeal.#7

    Probably most State’s appeals spring from trial courts’ suppression of evidence, so this article will focus on these appeals.#8 In this context, there are three tried and tested tools that can make all the difference in putting your best foot forward. There is also a fourth tool—used infrequently even by the defense—that is available to the State. First, as prosecutors, we should make all the arguments you can present in good faith to support your position in the trial court. Second, we should seek and obtain findings of fact. Third, prosecutors should contemplate urging the trial court to reconsider its adverse ruling. Fourth, if you need to develop the record, use a bill of exception.


Argue alternatives; give the trial and appellate courts options. As we all know too well, a hearing on a motion to suppress9# can result in the death knell of a case—for instance, when the critical statements or tangible evidence is excluded. It is at these hearings that the State needs to be especially on guard against dropping the ball. Although we may secure an adverse order, it is vital we make all possible arguments to support our position. For instance, if we are justifying the warrantless search of a vehicle, there are several arguments that might be made, including plain view, consent, automobile exception, search incident to arrest, inventory search, community caretaking, and exigent circumstances. If you sense the trial court is troubled by one theory, argue any others that could apply. No—offer them anyway! Otherwise, when you appeal, any arguments relied on but not presented to the trial court will be considered waived.

    Mercado illustrates the price the prosecution will pay on a State’s appeal for failing to present all its arguments to the trial court. At a suppression hearing on the legality of the search of a car, the State argued that the seizure of the drugs was proper as an inventory search, but the trial court disagreed and granted the motion. On appeal, for the first time, the State attempted to justify the search on the ground that it was a valid search incident to arrest. Although the Eighth Court of appeals was sympathetic to the new argument, the Court of Criminal Appeals was not: “[W]e hold that in cases in which the State is the party appealing, the basic principle of appellate jurisprudence that points not argued at trial are deemed to be waived applies equally to the State and the defense.”#10 The essence of this ruling is simply that a trial court cannot abuse its discretion in ruling on the only theory of law presented to it.#11 The Court of Criminal Appeals reversed the court of appeals and affirmed the trial court.

    Lest you think that the Court of Criminal Appeals has softened its approach on State’s appeals over the last decade, examine Rhinehart, decided just this year.12# This case involved the propriety of a juvenile transfer order, which was argued at hearings in both the juvenile and district courts. At the hearings, the parties addressed only the issue of due diligence in proceeding with the case in the juvenile court. At the district court’s hearing on Rhinehart’s motion to quash the indictment—certainly an unusual vehicle to challenge a transfer order—the State lost the due diligence argument.

    On appeal, the State raised the fresh arguments that: 1) Rhinehart had no right to appeal the juvenile court’s transfer order prior to final conviction in district court and 2) a motion to quash is not the proper vehicle to challenge a transfer order. The Fifth Court of Appeals bought the second argument and reversed. But again, the Court of Criminal Appeals slapped back the State. While it reinforced the law that a defendant cannot appeal a transfer order before final conviction in district court, it also held that the State had forfeited its appellate arguments because it had not presented them to the district court. “[W]e apply ordinary rules of procedural default to decide that the State, as the losing party in the criminal district court, could not raise for the first time on appeal a claim that there was no valid basis for the criminal district court to have quashed the indictment.” This ruling seems particularly harsh in light of Rhinehart’s ill-framed motion in the district court. Nevertheless, the case serves as a vital reminder that it is incumbent on prosecutors to present to a trial court all arguments justifying its position.

    The single exception to the preservation requirement imposed on the State is for an argument based on standing. In Klima, the Court of Criminal Appeals permitted the State, appealing the trial court’s decision to grant the defendant’s motion to suppress, to raise the issue of standing for the first time on appeal.13# While in Mercado and Rhinehart the State argued that this standing exception applied to justify the State’s new arguments, the Court of Criminal Appeals expressly opined in both cases that it did not.14# So standing is a very narrow exception to the rule that the State must preserve its arguments in the trial court to raise them on appeal. As a rule, prosecutors—like defendants—should argue in the trial court all theories to support their position. You fail to do so at your peril.


Obtain findings of fact and tie the trial judge’s hands. On appeal from an order granting suppression of evidence, an intermediate court is required to view the evidence in the light most favorable to the defendant, not the State.#15 On top of that, if there are no findings of fact, the appellate court assumes that the trial court resolved any conflict in the evidence against the State. Indeed, the appellate court may go further to decide that the trial court did not believe the uncontradicted evidence that supported the State’s position.#16 Absent findings of fact, then, an appellate court has considerable license to uphold a trial court’s ruling. But this license can be restricted by securing findings of fact and, even better, a trial court is required to prepare them on the request of the losing party.

    In the seminal case of Cullen, the trial court held a pre-trial hearing on a motion to suppress DWI video and audio tapes.#17 The trial court granted the defendant’s motion and declined, on the State’s request, to prepare and file findings of fact. The court of appeals affirmed. But the Court of Criminal Appeals appreciated the flaw in the justice system if requested findings were denied:

The refusal of trial courts to enter findings of fact when timely requested by the State leaves appellate courts with nothing to review except a one-word ruling and forces the courts of appeals to make assumptions about the trial court’s ruling. The ruling could be based on a mistake of law, on the trial court’s disbelief of the testimony presented, or even on a clerical error. There is the possibility that we are basing our entire appellate review on the wrong word being circled.#18

    The benefit of findings of fact is to provide meaningful review. Accordingly the court instructed that from Cullen forward, upon the request of the losing party on a motion to suppress evidence, the trial court must state its essential findings. And, by “essential findings,” the court meant that the trial court must make findings of fact and conclusions of law adequate to provide an appellate court with a basis upon which to review the trial court’s application of the law to the facts.19# If explicit written findings are made, appellate courts adopt the presumption that these are the essential findings and any other fact or credibility issues were regarded (however mistakenly) by the trial court as peripheral or non-essential to its ultimate holding.20 

    A request for findings is best made on the record in open court or in a written motion filed and presented to the trial court.#21 If a trial court does not make oral findings, it has 20 days from the date of its ruling in which to file its written findings.22# Should the trial court not cooperate in timely filing its findings, the State should file a motion in the court of appeals to remand the case for the trial court to enter its findings.#23

    Not to be overlooked is the additional filtering process that findings of fact afford prosecutors contemplating a State’s appeal. Any credibility findings will assist in determining whether we should appeal. If credibility determinations are memorialized and supported by the record, any review will usually be confined to the application of the law to the facts. Should the credibility findings be against the State and nothing in the record contradicts them, prosecutors should carefully reflect before attempting to appeal because an appellate court will be compelled to defer to those findings and will likely use them to affirm. Finally, be aware that that the deadline for filing the State’s notice of appeal is unaffected by the trial court’s deadline to file any findings of fact. Thus, in some cases, we may have to file the notice of appeal before seeing the trial court’s written findings, but the State remains free to withdraw notice in the event of unfavorable findings.


Move for reconsideration, giving the trial court a second chance to get it right. Sometimes we get an adverse ruling, but we recognize it was a close call for the trial court. In the heat of the moment, you failed to present the most compelling evidence or argument and you later think of something else that might have made a difference. Just because you have that adverse ruling does not mean there is a fait accompli. A formal motion to reconsider filed and presented to the trial court can tip the scales in the prosecution’s favor and head off the need to pursue a State’s appeal.

    File a formal motion, include your reasoning, request a hearing, make your arguments, and provide the court with a ready-made order. The emphasis here is on making it easy for the trial court. Use the formula of K-I-S-S (keep it simple, stupid). Grab and maintain the court’s attention. Make your point quickly and clearly and don’t waffle; border on the stark. On several occasions over the years, I have avoided the need to pursue a protracted State’s appeal or a feather-ruffling writ of mandamus by moving for reconsideration. Be aware, however, that a ruling on a motion for reconsideration is not considered an appealable order for purposes of a State’s appeal.24# Thus, the date of the written adverse ruling will start the appellate timetable. Finally, to maintain credibility, do not overuse this vehicle; preserve it for those special instances where a change in the result in the trial court is possible and would be significant.


Use an overlooked vehicle, a bill of exception, for making a record. On occasion during trial, events occur that do not appear on the record, but for appellate purposes, prosecutors desire to memorialize them. Events may develop while the court reporter is temporarily absent from the courtroom or present but not reporting (for example, when matters are discussed at the bench or in chambers). They might also involve the conduct of those present in the courtroom. Further, a trial court may sustain an objection without hearing the party’s arguments or offer of proof and the party seeks to justify its position. In all these situations, it is possible to generate a record so that a matter is preserved for appellate review.25# If the trial court permits, the prosecutor can relate what occurred in the presence of the court reporter during trial—but outside the presence of the jury. Otherwise, you might move to make a bill of exception.26# While the defense occasionally—and less frequently than it probably should—avails itself of this oft-forgot vehicle, there does not appear to be any legal impediment to the State employing it too.#27

    On its face, the bill of exception rule is long, but we should realize that the rule also provides a fallback remedy in the event a party disagrees with the bill filed by the trial court. With the inclusion of the affidavits of three people who observed the event at issue, a “bystanders bill” can be filed controverting the trial court’s bill.#28

    Preparing a bill of exception requires no particular words or form, but it should state the objection and ruling complained-of with sufficient specificity to apprise the trial court of the issue.#29 If the record already contains the evidence, it need not be repeated, but a careful prosecutor will nevertheless attach a certified copy of the court reporter’s transcript. The bill should be filed within 60 days after sentence is pronounced or suspended in open court, or if a motion for new trial has been timely filed within 90 days after sentence is pronounced or suspended in open court.30# The bill must also be physically presented to the trial court. Finally, in the face of a defendant’s bill of exception, know that if we do not contest the judge’s action on the bill we will be bound by the contents of the bill.#31

    Well, that completes the tips for a State’s appeal. With good fortune, prosecutors will not need to pursue our own appeal but, at some point, many offices will invoke the process. Now we have a few more tools at our disposal.


1 See Tex. Code Crim. Proc. art. 44.01 (a-c) (listing most of the issues the State can appeal); State ex rel. Lykos v. Fine, 2011 Tex. Crim. App. LEXIS 1, *21, Nos. AP-76,470 & AP-76,471 (Tex. Crim. App. Jan. 11, 2011).
2 State v. Moreno, 807 S.W.2d 327, 329-30 (Tex. Crim. App. 1991) (“In enacting Article 44.01 the Texas Legislature intended to grant the State the same appellate powers as the United States Congress extended to the federal government. Thus, we interpret the State’s authority to appeal from an order ‘dismiss[ing] an indictment’ under Article 44.01 in lockstep with the federal government’s authority to appeal under Title 18, United States Code, §3731”) (footnotes omitted).
3 See State v. Cox, 235 S.W.3d 283 (Tex. App.—Fort Worth 2007, no pet.) (dismissing State’s appeal due to lack of a signed written order).
4 See State v. Cowsert, 207 S.W.3d 347, 351 (Tex. Crim. App. 2006) (addressing 15-day period to file notice of appeal), superseded by, Tex. Code Crim. Proc. art. 44.01(d) (extending appeal window to 20 days); accord, Tex. R. App. Pro. 26.2(b).
5 See State v. Blankenship, 146 S.W.3d 218, 220 (Tex. Crim. App. 2004) (recognizing that a subordinate may sign the notice of appeal if the elected prosecutor expressly authorizes the subordinate to do so).
6 See Baines v. State, 2010 Tex. App. LEXIS 8777, *22-23, No. 06-10-00069-CR (Tex. App.—Texarkana, Nov. 3, 2010, no pet.) (rounding up the cases). This is not a very fair or practical requirement. The State has only 20 days to file its notice of appeal and will be denied any extension of time beyond that period. In contrast, the defense has 30 days to file its notice and can obtain an extension. Frequently, the defense will not file its notice of appeal until the State’s time has already run. This additional period to file notice of appeal afforded the defense provides it with the opportunity to engage in improper gamesmanship simply so as to deny the State the right to cross-appeal. In fact, this incongruity in the parties’ times to file notices of appeal can work against the State even if the defense has no improper motive in filing its notice of appeal after the 20-day window has elapsed. Accordingly, prosecutors should continue to challenge the requirement that they must file a notice of appeal so that they can pursue a cross-appeal.
7 Usually, a State’s appeal is not even worth filing unless the chance of prevailing is in excess of 75 percent.
8 For a comprehensive review of the procedures of a State’s appeal, refer to your office’s copy of TDCAA’s State’s Appellate Manual (2010-2012) (a detailed resource for anyone working on appeals, petitions for discretionary review, and writs of mandamus and habeas corpus), which was distributed free to every prosecutor’s office in September 2010.
9 “A suppression hearing is for limited purposes. [S]tatutes authorizing pre-trial proceedings do not contemplate a ‘mini-trial’ on the sufficiency of the evidence to support an element of the offense. The purpose of a pre-trial motion is to address preliminary matters, not the merits of the case. Preliminary matters are those issues that can be resolved before there is a trial on the merits of the case.” State v. Iduarte, 268 S.W.3d 544, 587 (Tex. Crim. App. 2008) (internal citations omitted).
10 State v. Mercado, 972 S.W.3d 75, 78 (Tex. Crim. App. 1998); see also State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002) (rejecting State’s “attenuation of the taint” argument made for the first time on appeal).
11 Id.
12 State v. Rhinehart, 2011 Tex. Crim. App. LEXIS 327, No. PD-0002-10 (Tex. Crim. App. March 9, 2011). Full disclosure requires that I mention that, unlike the unanimous decision in Mercado, this decision was 5-2.
13 State v. Klima, 934 S.W.2d 109 (Tex. Crim. App. 1996).
14 Rhinehart, 2011 Tex. Crim. App. LEXIS 327 at *23; Mercado, 972 S.W.2d at 77-78.
15 State v. Kelly, 206 S.W.3d 808, 819 n.19 (Tex. Crim. App. 2006).
16 See State v. Ross, 32 S.W.3d 853, 855-58 (Tex. Crim. App. 2000) (upholding the trial court’s ruling granting suppression of the evidence despite uncontroverted evidence to support reasonable suspicion to stop and probable cause to arrest).
17 State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006).
18 Id., at 698.
19 Id., at 698-99.
20 State v. Abran, No. PD-0735-10 (Tex. Crim. App.  April 5, 2011) (not yet reported or final). But if a trial court makes findings without a request from the losing party and the findings are inadequate for the appellate court to resolve the issues, the appellate court may remand the cause to the trial court to make additional findings. Id.
21 State v. Oages, 210 S.W.3d 643, 644 n.3 (Tex. Crim. App. 2006).
22 Cullen, 195 S.W.3d at 699.
23 This is the process employed where a trial court fails to enter mandatory findings, e.g., under the confession statute. See Tex. Code Crim. Proc. art. 38.22, §6 (and cases thereunder).
24 See Cowsert, 207 S.W.3d at 351-52 (holding the State lacked authority to appeal from a ruling on a motion to reconsider a suppression ruling because it would have improperly extended the State’s fixed deadline to appeal).
25 Defendants have the advantage of creating a record at a hearing on a motion for new trial that the State does not—unless the defendant first obtains the hearing.
26 See Tex. R. App. Proc. 33.2.
27 There are abundant cases in which the appellate courts point out the availability of the bill of exception rule—and Rule of Evidence 103(b) on offers of proof)—after the defense has failed to use it to preserve an issue for appeal.
28 Tex. R. App. Pro. 33.2(3).
29 See Currie v. State, 692 S.W.2d 95, 97 (Tex. Crim. App. 1985); Herrin v. State, 525 S.W.2d 27, 29 (Tex. Crim. App. 1975).
30 See Tex. R. App. Pro. 33.2 (e)(2)(A & B).
31 See Proctor v. State, 503 S.W.2d 566, 570 (Tex. Crim. App. 1974) (binding the defendant to the bill’s contents).