No. 04-04-00547-CR
Delivered and Filed: May 4, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law, Kerr County, Texas, Trial Court No. CR03-0047, Honorable Spencer W. Brown, Judge Presiding. Reversed and Remanded.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: ALMA L. LÓPEZ, Chief Justice.
The State appeals the trial court's order denying its motion for admission of breath test evidence. Ben Daly Cowsert asserts that this appeal should be dismissed for lack of jurisdiction because either: (1) the State failed to timely appeal the trial court's original order granting Cowsert's motion to suppress; or (2) the State prematurely filed the notice of appeal before the trial court entered its order denying the State's motion for admission of breath test evidence. We reverse the trial court's order and remand the cause for further proceedings consistent with this opinion.
Background
Cowsert was charged with a misdemeanor offense of driving while intoxicated. On July 15, 2003, Cowsert filed a motion to suppress the breath test result. On October 7, 2003, the trial court granted the motion to suppress relying on this court's opinion in Stewart v. State, 103 S.W.3d 483 (Tex.App.-San Antonio 2003), rev'd, 129 S.W.3d 93 (Tex.Crim.App. 2004). The State did not appeal the trial court's order granting the motion to suppress. On May 3, 2004, the State filed a motion for admission of breath test evidence contending that the Texas Court of Criminal Appeals reversed this court's decision in Stewart and held that evidence of breath test results was relevant even in the absence of retrograde extrapolation testimony. On July 16, 2004, the trial court conducted a hearing on the State's motion and stated that he was denying the motion because Cowsert was arrested on December 1, 2002, and the law in effect at that time held that evidence of breath test results was not relevant in the absence of retrograde extrapolation evidence. The trial court signed the order denying the State's motion on July 19, 2004. The State's notice of appeal was filed on July 16, 2004. Jurisdiction
Cowsert contends that this court does not have jurisdiction to consider this appeal because the State could only appeal the order granting the motion to suppress and not the order denying the motion for admission of breath test evidence entered almost nine months later. Cowsert's argument is similar to the issue addressed in Montalvo v. State, 846 S.W.2d 133 (Tex.App.-Austin 1993, no pet.). In Montalvo, the trial court initially granted a pretrial motion to suppress but later rescinded that ruling and denied the motion to suppress. 846 S.W.2d at 135. The appellant argued that the State's exclusive remedy was to appeal the trial court's initial order granting the motion to suppress and, by failing to timely appeal that order, the State lost its only recourse. Id. at 136. The Austin court rejected this argument, noting that a motion to suppress is "nothing more than a specialized objection." Id. at 137. The court concluded, "The trial court has continuing jurisdiction over the case and was free to reconsider its own earlier suppression ruling." Id. at 138; see also State v. Rodriguez, 11 S.W.3d 314, 323 (Tex.App.-Eastland 1999, no pet.) (holding State was not limited to appealing misdemeanor suppression ruling and could have question reconsidered in later felony case); State v. Hunton, No. 05-98-00845-CR, 1998 WL 813401 (Tex.App.-Dallas Nov. 25, 1998, no pet.) (considering State's appeal from trial court's order that reconsidered earlier denial of motion to suppress) (not designated for publication). Because the trial court has continuing jurisdiction to reconsider its pre-trial rulings and because the State's right to interlocutory appeal is not an exclusive remedy, it follows that the State is permitted to appeal a trial court's order reconsidering a pre-trial ruling, particularly in this case where the reconsideration is based on a change in the law that occurred after the trial court's initial ruling. Cowsert next contends that this court is without jurisdiction to consider the State's appeal because the State's notice of appeal was prematurely filed. Rule 27.1(b) of the Texas Rules of Appellate Procedure provides that a premature notice of appeal is effective and deemed filed on the same day, but after, an appealable order is signed by the trial court. See Tex.R.App.P. 27.1(b); State v. Rollins, 4 S.W.3d 453, 454 n. 1 (Tex.App.-Austin 1999, no pet.) (noting if State files a notice of appeal before an order is signed, the notice of appeal becomes effective upon the signing of the order). Having rejected Cowsert's jurisdictional arguments, we hold that this court has jurisdiction to consider the State's appeal. Discussion
The State contends that the trial court abused its discretion in misapplying the law to the facts because the Texas Court of Criminal Appeals held in Stewart that breath test results are relevant and admissible even in the absence of retrograde extrapolation testimony. 129 S.W.3d at 96. Cowsert does not respond to the merits of the State's contention. At the hearing, the trial court denied the State's motion on the basis that the law at the time Cowsert was arrested in 2002 excluded the breath test results as being irrelevant. The very facts in the Stewart opinion reveal that the trial court abused its discretion in reaching this conclusion. Despite the fact that Stewart was arrested in April of 1999, the Texas Court of Criminal Appeals held that the breath test results were relevant evidence even in the absence of retrograde extrapolation testimony. Id. at 95, 96; see also Martinez v. State, No. 04-03-00746-CR, 2004 WL 2671670, at *1, 5 (Tex.App.-San Antonio Nov. 24, 2004, no pet.) (applying Stewart to hold breath test results relevant even though appellant was arrested on November 11, 2002); Lopez v. State, No. 04-03-00178-CR, 2004 WL 1251657, at * 1 (Tex.App.-San Antonio June 9, 2004, no pet.) (applying Stewart even though appellant was arrested on October 7, 2001) (not designated for publication). These cases demonstrate that the law in existence at the time an evidentiary ruling is made is the correct standard of law to be applied in making the ruling. Accordingly, the trial court abused its discretion in denying the State's motion for admission of breath test evidence on relevancy grounds based on the law predating the Texas Court of Criminal Appeals' decision in Stewart. Conclusion
The trial court's order is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.