David Sylvester Chambers v. State

• Court: Court of Appeals of Texas
• Decided: September 11, 2015
• Docket: 06-15-00122-CR
• Status: Published

Opinion

ACCEPTED 06-15-00122-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 9/11/2015 12:01:57 PM DEBBIE AUTREY CLERK

No. 06-15-00122-CR

IN THE COURT OF APPEALS FILED IN 6th COURT OF APPEALS SIXTH DISTRICT TEXARKANA, TEXAS AT TEXARKANA, TEXAS 9/11/2015 12:01:57 PM __________________________________________________________________ DEBBIE AUTREY Clerk DAVID SYLVESTER CHAMBERS, Appellant

v.

THE STATE OF TEXAS

APPELLANT’S MOTION TO ABATE APPEAL DUE TO THE ABSENCE OF FINDINGS OF FACT AND CONCLUSIONS OF LAW ON A DENIED MOTION TO SUPPRESS EVIDENCE AND MOTION FOR EXTENSION OF TIME TO FILE APPELLANT’S BRIEF PENDING FILING OF FINDINGS AND CONCLUSION IN A SUPPLEMENTAL CLERK’S RECORD __________________________________________________________________

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

Comes now, David Sylvester Chambers, Appellant in the above styled and

numbered cause and would show this honorable Court the following:

I.

Chambers was convicted in the above cause of theft of property with a value

over $1500.00 and under $20,000.00. Punishment, enhanced by two prior felony

convictions, was assessed at 15 years of imprisonment. Notice of appeal was

timely filed and the appeal docketed in this Court after transfer from the Tenth

Court of Appeals. The clerk’s record was filed on July 22, 2015. The reporter’s record was filed on August 20, 2015. Chambers’ brief is due on September 21,

2015.

II.

Before trial, Chambers filed a motion to suppress evidence recovered

following his warrantless stop and arrest (CR 22-25). A hearing on the motion to

suppress was held (6 RR 155-184). The trial court denied the motion to suppress

(6 RR 184). Within his motion to suppress, Chambers requested the trial court

enter findings of fact and conclusions of law if the motion to suppress was denied

(CR 23). The record on appeal does not contain the findings and conclusions as

requested.

III.

Evidence subject to the suppression motion was admitted at trial. Chambers

intends to challenge the trial court’s denial of his motion to suppress on appeal. As

the non-prevailing party on the motions to suppress, Chambers timely sought for

the trial court to make findings of fact and conclusions of law which would provide

this Court with a basis upon which to review the trial court’s application of the law

to the facts upon denying any motion to suppress.

IV.

The requirement to make such findings and conclusions upon request of the

non-prevailing party is recognized in State v. Cullen, 195 S.W.3d 696, 699

2 (Tex.Crim.App. 2006). Upon request of the non-prevailing party, a trial court has

twenty days to enter findings and conclusions. Cullen, 195 S.W.3d at 699. The

failure to enter requested findings and conclusions will result in abatement by the

appellate court to the trial court for entry of the findings and conclusions. Blocker

v. State, 231 S.W.3d 595, 598 (Tex. App. – Waco 2007, no pet.). When required

findings have not been made, the appellate court must first abate the appeal so that

the required findings can be made. In re Graves, 217 S.W.3d 744, 754 (Tex. App.

– Waco 2007) (Gray, C.J., dissenting).

Counsel cannot prepare Chambers’ brief without the trial court first entering

the requested findings and conclusions. This is Chambers’ first request for an

extension to file his brief. Chambers seeks to have the Court reset the briefing

schedule in this case pending the filing of the requested findings and conclusions

from the trial court on the denied motion to suppress.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Chambers respectfully

requests the entry of an order of abatement directing the trial court to enter written

findings and conclusions on any motion to suppress evidence denied by the trial

court in the litigation of the above styled and numbered cause. Chambers further

requests that such findings and conclusions be provided to this Court by way of a

3 supplemental clerk’s record. Finally, Chambers prays the briefing schedule be

reset pending receipt of the findings and conclusions from the trial court.

Respectfully submitted,

/s/Richard E. Wetzel Richard E. Wetzel State Bar No. 21236300

1411 West Ave., Suite 100 Austin, Texas 78701

(512) 469-7943 (512) 474-5594 wetzel_law@1411west.com

Attorney for Appellant David Sylvester Chambers

CERTIFICATE OF SERVICE

This is to certify a true and correct copy of this pleading was emailed to Counsel for the State of Texas, Doug Howell, Assistant District Attorney, at his email address maintained in Brazos County at dhowell@co.brazos.tx.us on this the 11th day of September, 2015.

/s/Richard E. Wetzel Richard E. Wetzel State Bar No. 21236300