Kevin Scott Kellerby v. State

• Court: Court of Appeals of Texas
• Decided: August 8, 2013
• Docket: 11-13-00027-CR
• Status: Published

Opinion

Order filed August 8, 2013

In The

Eleventh Court of Appeals __________

No. 11-13-00027-CR __________

KEVIN SCOTT KELLERBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 104th District Court Taylor County, Texas Trial Court Cause No. 18509B

ORDER Kevin Scott Kellerby, Appellant, has filed in this court a motion requesting that we direct the trial court to prepare and enter findings of fact and conclusions of law and that we grant an extension of the filing deadline on Appellant’s brief until thirty days after the findings and conclusions have been filed in this court. The motion is granted, and the appeal is abated. The record shows that Appellant filed a motion to suppress an oral statement made by Appellant during interrogation by a detective at the Taylor County Law Enforcement Center. The trial court held a hearing on the motion to suppress and denied the motion, but it did not enter findings of fact and conclusions of law. In his motion to suppress, Appellant alleged that his statement was involuntary and was made in violation of his rights. When the voluntariness of a statement is challenged, the trial court is required to make written findings of fact and conclusions of law as to whether the statement was made voluntarily. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West 2005). It is well settled that the language of Article 38.22, section 6 is mandatory whether or not the defendant objects to the trial court’s failure to make such findings and conclusions. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004). The appropriate remedy on appeal is for the appellate court to 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 Bonham v. State, 644 S.W.2d 5, 8 (Tex. Crim. App. 1983). Accordingly, we abate the appeal. 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 on or before September 19, 2013. Appellant’s Second Motion to Extend Time to File Appellant’s Brief and Request for Findings of Fact and Conclusions of Law is granted. This appeal is abated and will be reinstated upon the filing of the supplemental clerk’s record.

August 8, 2013 PER CURIAM Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Willson, J.