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Click here for the full text of this decision FACTS:Appellee Ben Daly Cowsert was charged with driving while intoxicated. On July 15, 2003, Cowsert filed a pretrial motion to suppress the breath test results. On Oct. 7, 2003, the trial court granted the motion to suppress, relying on the 4th Court of Appeals’ opinion in Stewart v. State, 103 S.W.3d 483 (Tex. App.-San Antonio 2003). However, the Court of Criminal Appeals (CCA) reversed that decision. The state did not immediately appeal the trial court’s order granting the motion to suppress. Seven months later, on May 3, 2004, the state filed a Motion for Admission of Breath Test Evidence requesting that the court reconsider its suppression ruling in light of this court’s decision to overturn the 4th Court’s opinion in Stewart. In response, Cowsert filed a motion in limine to prevent the state from offering the breath test. After a hearing on both motions, the trial court denied the state’s motion, affirming its earlier suppression of the breath test. The trial court stated that it would apply the law that was in effect on the day of Cowsert’s arrest despite the CCA’s subsequent decision, under which Cowsert’s breath test results would be admissible. The state appealed the trial court’s order. Although the time to perfect an appeal from the trial court’s order granting the motion to suppress had passed, the 4th Court held that it had jurisdiction and reversed the decision of the trial court. The 4th Court rejected the appellee’s contention that the appeal should be dismissed for lack of jurisdiction. The court of appeals held that because the trial court is free to reconsider its ruling on a pretrial motion and the state’s right to appeal a pretrial ruling is not its exclusive remedy, it follows that the state is permitted to appeal a trial court’s order reconsidering a pretrial motion. The court of appeals then addressed the merits of the case. Holding that the trial judge had abused his discretion by declining to apply the newer CCA decision to the case, the 4th Court reversed the decision of the trial court. The CCA granted review to determine whether the state had a right to appeal the trial court’s order on the motion for reconsideration. The CCA held that the trial court’s order was not an appealable order and it reversed the decision of the court of appeals. HOLDING:Reversed and remanded. The CCA held that a trial court’s order on the motion for reconsideration could not be appealed. The state’s authority to appeal in criminal cases is granted by Texas Code of Criminal Procedure Art. 44.01, the CCA stated. The statutory language of Art. 44.01(a)(5) clearly and unambiguously limits the state’s right to appeal to orders that grant motions to suppress evidence. The order at issue in this case did not grant a motion to suppress but rather denied a motion for reconsideration, the CCA found. The CCA stated that its decision did not leave the state without recourse. The state could have appealed within the 15-day period the order on the motion to suppress on the basis that Stewart was incorrectly decided and could have requested a continuance of the case until the CCA published its opinion in Stewart. Upon remand, the CCA stated that the prosecution could again request reappraisal of the suppression issue in light of the current case law and the CCA’s opinion. OPINION:Meyers, J., delivered the court’s unanimous opinion.

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