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State v. Morgan5/5/2004
mation before trial can proceed in the manner in which the State chooses.
Since the prosecution would proceed regardless of the trial court's ruling, this is an interlocutory appeal. As a general rule, interlocutory appeals are not permitted. Art. 44.01 provides several instances in which the State can appeal, but only one of those involves an interlocutory appeal. Subsection (a)(5) allows the State to file an interlocutory appeal from a trial court's order granting a motion to suppress evidence. But the statute specifies conditions to such an appeal. The prosecutor must include a certification that the appeal is not taken for purposes of delay.
There is no certification requirement under any of the other subsections, including subsection (a)(1). So an appeal under subsection (a)(1) is not to be utilized as an interlocutory appeal. It is supposed to be used only if the prosecution is terminated.
Additionally, we have recognized the need for speed with interlocutory appeals. The State seeks such speed in this case. It filed a motion to expedite this appeal on July 1, 2003, which we denied. The State's recognition that speed is desirable is further evidence that this is an interlocutory appeal. And in the motion, the State concedes that " f the court of appeals is correct, the State will happily read and prove the prior conviction at guilt-innocence." The State acknowledges that this case will proceed, one way or another, after the trial court's order. So the trial court's order did not terminate the prosecution, and no jurisdiction exists for this appeal.
Conclusion
We disagree with the State that the trial judge's order "effectively terminated the prosecution." The order in this case affected only Morgan's possible punishment range. As a result, this is an interlocutory appeal for which appellate courts have no jurisdiction.
We reverse the judgment of the Court of Appeals and remand this case to the trial court for proceedings consistent with this opinion. We dismiss the State's ground for review as moot.
PUBLISH
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