in Re Benny Wayne Stewart

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00713-CR

Dionisio Balderas Moreno, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 07-469-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant has filed a motion to abate the appeal and to remand the cause to the trial

court for entry of findings of fact and conclusions of law related to the voluntariness of a statement

given to the police.1 See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West 2005). The State opposes

the motion, arguing that appellant’s issues concern his right to counsel, not the voluntariness

of the statement.

Appellant sought to suppress his statement, arguing that it was taken in violation of

his right to counsel, which is one of the rights enumerated in article 38.22. See Tex. Code

1 Two statements were introduced, and appellant sought to suppress both. The first was introduced during guilt/innocence, and the trial court made appropriate findings and conclusions on the record. The second statement was introduced at the punishment phase and related to another offense. When the trial court considered appellant’s motion to suppress the second statement, it stated only that the motion was denied without explaining its conclusion. It is the second statement with which we are concerned here. Crim. Proc. Ann. art. 38.22, § 2. Unless appellant voluntarily waived his Miranda rights,2 the

statement was not admissible under article 38.22. See id. Miranda rights are intended to protect

against “inherent compulsion” generated in a custodial interrogation. Moran v. Burbine, 475 U.S.

412, 420 (1986). Thus, the voluntariness of the statement is implicated in appellant’s argument

related to his right to counsel. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2; Moran, 475 U.S. at

420-22 (in considering admissibility of statement related to waiver of right to counsel, court held that

“respondent validly waived his right to remain silent and to the presence of counsel. The

voluntariness of the waiver is not at issue.”). We grant appellant’s motion and remand the cause to

the trial court for entry of findings and conclusions regarding the voluntariness and admissibility of

appellant’s statement related to his sexual contact with a minor and introduced into evidence in the

punishment phase. A supplemental clerk’s record containing the court’s certification shall be

tendered for filing no later than thirty days from the date of this opinion. See Tex. R. App. P.

25.2(d), 34.5(c)(2), 37.1.

___________________________________________

David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Abated

Filed: October 3, 2008

Do Not Publish

2 See generally Miranda v. Arizona, 384 U.S. 436, (1966).