Lola Danielle Cherry v. State

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-12-00080-CR

LOLA DANIELLE CHERRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 354th District Court Hunt County, Texas Trial Court No. 27792

Before Morriss, C.J., Carter and Moseley, JJ. ORDER

Lola Danielle Cherry has appealed her conviction for attempted capital murder. At trial,

Cherry attempted to demonstrate that she was not acting voluntarily when she gave investigators

two inculpatory statements—one oral, the other written—about two months after the events

alleged in the indictment. On appeal, Cherry contends her statements were not made voluntarily

and thus should have been excluded from evidence.

In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts on which the conclusion was based, which order shall be filed among the papers of the cause.

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West 2005). The requirements of Section 6 are

mandatory. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004). Section 6’s required

order and finding must be made as to each challenged statement, regardless of whether the

statement was given in a custodial or a noncustodial setting. State v. Terrazas, 4 S.W.3d 720,

727 (Tex. Crim. App. 1999); see also Oursbourn v. State, 259 S.W.3d 159, 171 (Tex. Crim. App.

2008).

Because the requirements of Article 38.22, Section 6 of the Texas Code of Criminal

Procedure have not been met in this case, we abate this appeal and remand it to the trial court.

See TEX. R. APP. P. 44.4. The trial court is instructed to enter an order stating its conclusion as to

whether Cherry’s written and oral statements were voluntarily made and, if so, detailing the

2 specific findings of fact on which those conclusions are based. See TEX. CODE CRIM. PROC.

ANN. art. 38.22, § 6.

The order shall be filed with this Court in the form of a supplemental clerk’s record

within twenty-one days of the date of this order. The abatement will terminate, and this Court’s

jurisdiction will resume, on the filing of the supplemental clerk’s record with those findings and

conclusions. All appellate timetables are hereby stayed and will resume on our receipt of that

supplemental clerk’s record.

IT IS SO ORDERED.

BY THE COURT

Date: August 6, 2013