David Gonzales v. State

• Court: Court of Appeals of Texas
• Decided: November 16, 2017
• Docket: 11-17-00091-CR
• Status: Published

Opinion

Order filed November 16, 2017

In The

Eleventh Court of Appeals __________

No. 11-17-00091-CR __________

DAVID GONZALES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court Ector County, Texas Trial Court Cause No. B-44,600

ORDER Appellant has filed in this court an unopposed motion to abate this appeal and remand the cause to the trial court to address two concerns: an incomplete reporter’s record and the lack of findings of fact and conclusions of law related to Appellant’s motions to suppress. The motion is granted, and the appeal is abated. As asserted by Appellant, the reporter’s record is incomplete. It appears that Defendant’s Exhibits No. 4 and No. 7 from the suppression hearing, as well as State’s Exhibit No. 6 from the trial on the merits, were not included in the reporter’s record filed in this cause. We abate the appeal and remand the cause to the trial court for the trial court to determine whether these hearings were recorded and, if so, to direct the court reporter to prepare a supplemental reporter’s record of each hearing. If the parties have a dispute involving the items that appear to be missing from the appellate record or if the reporter’s records have been lost or destroyed, the trial court is directed to resolve that dispute in compliance with TEX. R. APP. P. 34.6(e), (f). See Amador v. State, 221 S.W.3d 666, 676–77 (Tex. Crim. App. 2007); Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003); Pierce v. State, No. 03- 09-00487-CR, 2010 WL 3719242 (Tex. App.—Austin 2010, no pet.) (mem. op., not designated for publication). Additionally, the record shows that Appellant sought to suppress all evidence obtained as a result of Appellant’s arrest and detention and any statement made by Appellant. The trial court held a hearing on Appellant’s motion to suppress and, at the end of the hearing, denied the motion. Appellant requested findings of fact and conclusions of law, but the trial court did not enter any findings or conclusions. Pursuant to Appellant’s request, we abate the appeal so that such findings and conclusions can be properly entered by the trial court. Green v. State, 906 S.W.2d 937 (Tex. Crim. App. 1995); see State v. Cullen, 195 S.W.3d 696, 699–700 (Tex. Crim. App. 2006); Bonham v. State, 644 S.W.2d 5, 8 (Tex. Crim. App. 1983). Accordingly, we grant the unopposed motion to abate the appeal and remand the cause. The trial court is directed to enter written findings of fact and conclusions of law regarding Appellant’s motion to suppress, and the trial court clerk is instructed to file in this court a supplemental clerk’s record containing such findings and conclusions. If necessary, the trial court is also directed to make appropriate findings and recommendations with respect to the missing exhibits. Such findings and recommendations and any order entered by the trial court shall also be included 2 in the supplemental clerk’s record. The court reporter is directed to prepare and forward to this court a supplemental reporter’s record containing the missing exhibits and, if a hearing is held in the trial court with respect to this order, a supplemental reporter’s record from such hearing. The supplemental records are due to be filed in this court on or before December 18, 2017.

PER CURIAM

November 16, 2017 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.