Opinion
Appellate case number: 01-14-00421-CR
04-14-2016
Eric Dewayne Small v. The State of Texas
SECOND ORDER OF CONTINUING ABATEMENT Trial court case number: 0985103 Trial court: 209th District Court of Harris County
Appellant, Eric Dewayne Small, appeals from the trial court's denial of his motion to suppress his oral statement made to a law enforcement officer. According to appellant, he made his statement involuntarily because a law enforcement officer "promised leniency" to a third person, Brandz Anderson, in exchange for the statement. Appellant also asserts that his statement was rendered involuntary by "the totality of the circumstances," namely that his interview with a law enforcement officer lasted four hours but only a portion of the interview was recorded, he was subjected to "intimidation tactics" by a law enforcement officer at the beginning of the interview, and a discussion between him and a law enforcement officer "about justice and mercy . . . lead[] to [his] incriminating statements."
The record shows that the trial court held a hearing outside the presence of the jury, at which the parties litigated the issue of whether appellant's statement was made involuntarily. Afterwards, on the record, the trial court denied appellant's motion to suppress, thereby finding that appellant's statement was voluntarily made, and admitted appellant's statement into evidence at trial. See Simpson v. State, 603 S.W.2d 862, 865 (Tex. Crim. App. [Panel Op.] 1982) ("The court's act in overruling the objections and admitting the [defendant's] confession was tantamount to a general finding that it was voluntarily made . . . ."); Maxey v. State, 626 S.W.2d 180, 181 (Tex. App.—Corpus Christi 1981, pet. ref'd) (finding of voluntariness made by implication when trial court overruled motion to suppress).
Although on September 1, 2005 the State filed proposed findings of fact and conclusions of law regarding the admissibility and voluntariness of appellant's statement, the record does not reflect that the trial court made findings of fact or conclusions of law related to appellant's motion to suppress as required.
As we previously informed the trial court, Texas Code of Criminal Procedure article 38.22, section 6, provides in pertinent part:
If [a] statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the
court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause.TEX. CODE CRIM. PROC. art. 38.22, § 6 (Vernon Supp. 2015) (emphasis added); Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2005) ("It is well settled that Article 38.22, § 6 'is mandatory in its language and that it requires a trial court to file its findings of fact and conclusions of law'" without regard to whether defendant objects to their absence). It is not necessary that the findings be made "with minute specificity as to every alleged and hypothetical possibility for physical or mental coercion. But 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." Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim. App. 1987). A trial court may satisfy the requirements of article 38.22 by dictating its findings and conclusions into a reporter's record that is included in the appellate record. Mbugua v. State, 312 S.W.3d 657, 668 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (citing Murphy v. State, 112 S.W.3d 592, 601-02 (Tex. Crim. App. 2003)).
When a trial court fails to make findings of fact and conclusions of law in compliance with article 38.22, section 6, we abate the appeal and remand the cause to permit compliance with the statute. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6; Urias, 155 S.W.3d at 142 (remanding to court of appeals with instructions to require compliance); Wicker, 740 S.W.2d at 784.
Here, although the trial court initially found appellant's statement to be made voluntarily and held it admissible, no findings of fact or conclusions of law regarding the voluntariness of appellant's statement were contained in the appellate record. Accordingly, on October 2, 2015, the Court abated this appeal and remanded the case to the trial court to enter written findings of fact and conclusions of law, separate and apart from any docket sheet notations in this case, in conjunction with its denial of appellant's motion to suppress. On November 24, 2015, we issued an order of continuing abatement reminding the trial court of the required findings of fact and conclusions of law.
On March 22, 2016, the trial court signed "Defendant's Proposed Findings of Fact and Conclusions of Law," which has now been filed with this Court. However , these findings of fact and conclusions of law do not comport with the trial court's denial of appellant's motion to suppress and its decision to admit appellant's statement into evidence at trial. See Simpson, 603 S.W.2d at 865 (admitting defendant's confession into evidence "tantamount to a general finding that it was voluntarily made"); Maxey, 626 S.W.2d at 181 (finding of voluntariness made by implication when trial court overruled motion to suppress). "Without adequate findings of fact [and conclusions of law] this Court is . . . handicapped in its review []on appeal of the trial court's ruling because it lacks an adequate record of the basis for that ruling." Hester v. State, 535 S.W.2d 354, 356 (Tex. Crim. App. 1976).
One purpose for requiring a trial court to enter an order stating its findings of fact and conclusions of law is so that the record may reflect for the parties and for possible appellate review the basis for the trial court's ruling. Bonham v. State, 644 S.W.2d 5, 8 (Tex. Crim. App. 1983); Hester, 535 S.W.2d at 356. Here, the trial court denied appellant's motion to suppress his statement made to a law enforcement officer and admitted appellant's statement into evidence at trial; however, the written findings of fact and conclusions of law submitted to this Court do not show "the basis of th[at] ruling." Bonham, 644 S.W.2d at 8; see also Simpson, 603 S.W.2d at 865 (admitting defendant's confession into evidence "tantamount to a general finding that it was voluntarily made"); Maxey, 626 S.W.2d at 181 (finding of voluntariness made by implication when trial court overruled motion to suppress).
Further, we note that the "Findings of Fact and Conclusions of Law" filed with this Court were signed on March 22, 2016 by the Honorable Frank Price. Notably, however, on August 31, 2005, the Honorable Michael McSpadden held a hearing outside the presence of the jury, at which the parties litigated the issue of whether appellant's statement was made involuntarily. As the Court of Criminal Appeals has explained: "It is not appropriate for [a] second judge . . . to make findings of fact [and conclusions of law]" based upon a "'cold' record" and not upon "a direct evaluation of the credibility and demeanor of the witnesses." Garcia v. State, 15 S.W.3d 533, 536 (Tex. Crim. App. 2000); see also Taiwo v. State, No. 01-07-00487-CR, 2010 WL 2306040, at *3 n.2 (Tex. App.—Houston [1st Dist.] June 10, 2010, pet. ref'd) (mem. op., not designated for publication) ("A trial judge may not make statutorily-mandated findings of fact and conclusions of law based on a reporter's record of a hearing over which he did not preside . . . .").
Accordingly, we STRIKE the trial court's "Findings of Fact and Conclusions of Law" signed by the Honorable Frank Price on March 22, 2016. The trial court, and, more specifically, the Honorable Michael McSpadden, is ORDERED to enter its written findings of fact and conclusions of law regarding the denial of appellant's motion to suppress his statement made to a law enforcement officer, separate and apart from any docket sheet notations in this case. The trial court may review the reporter's record to refresh its recollection of the reasons for its rulings on the issue of voluntariness. Wicker, 740 S.W.2d at 784. The trial court shall cause the findings and conclusions to be filed with the trial court clerk within 10 days of the date of this order. We further order the trial court clerk to file a supplemental clerk's record containing the trial court's findings of fact and conclusions of law with this Court within 15 days of the date of this order.
This appeal remains abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket without further order of the Court when the supplemental clerk's record is filed in this Court.
The State's "Motion to Strike Findings of Fact and Conclusions of Law and to Continue Abatement" is DISMISSED as moot.
It is so ORDERED. Judge's signature: /s/ Terry Jennings
[v] Acting individually [ ] Acting for the Court Date: April 14, 2016