Joseph Thomas Gabay v. State

Opinion

The State of

Fourth Court of Appeals

San Antonio, Texas

November 20, 2015

No. 04-14-00783-CR

Joseph Thomas GABAY,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Kendall County, Texas Trial Court No. 5442

Honorable N. Keith Williams, Judge Presiding

ORDER

Without abating this appeal, we direct the trial court to prepare and file findings of fact and conclusions of law that state its conclusions and the specific findings of fact upon which the conclusions are based with respect to the following issues: (1) whether Mr. Gabay was in custody at the time his videotaped statement, State’s Exhibit 4, was taken; (2) whether he unequivocally invoked a right to counsel; (3) whether Mr. Gabay voluntarily signed the waiver of his rights; and (4) whether the statement was voluntarily made. See TEX. CODE CRIM. PROC. ANN. art. 38.22 §6 (West Supp. 2015); TEX. R. APP. P. 34.5(c)(2); see also, Andrus v. State, No. AP-76,936, 2015 WL 831664, at *1 (Tex. Crim. App. Feb. 25, 2015)(per curiam, not designated for publication); State v. Elias, 339 S.W.3d 667, 676 (Tex. Crim. App. 2011).

The trial court clerk must then prepare, certify, and file in this court a supplemental clerk’s record containing the findings and conclusions. The findings and conclusions must be made and filed within thirty days of the date of this order.

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Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of November, 2015.

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Keith E. Hottle Clerk of Court