Rafael Trevino v. State

Opinion

NUMBER 13-14-00747-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RAFAEL TREVINO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 379th District Court of Bexar County, Texas.

ORDER ABATING APPEAL

Before Justices Rodriguez, Garza and Longoria Order Per Curiam

During trial, appellant Rafael Trevino orally moved to suppress a statement

he made to police officers before his arrest. He cited articles 38.22 and 38.23

of the Texas Code of Criminal Procedure as a basis for his motion to suppress

and argued that the officer’s failure to read him his statutory rights negated the voluntariness of his statement. See T EX . C ODE C RIM . P ROC . A NN . arts. 38.22, .23

(West, Westlaw through 2015 R.S.). The trial court heard Trevino’s motion to

suppress outside of the presence of the jury and subsequently denied the motion.

No findings of fact or conclusions of law regarding the voluntariness of Trevino’s

statement were entered by the trial court.

Under article 38.22 of the Texas Code of Criminal Procedure, in all cases

where a question is raised as to the voluntariness of a statement of an accused,

the trial court must enter an order stating whether or not the statement was

voluntarily made, along with the specific finding of fact upon which the trial court’s

conclusion was based. Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App.

2013) (determining that there are no exceptions to article 38.22’s requirement

that written findings are required in all cases concerning voluntariness). The

trial court’s failure to make specific factual findings regarding the voluntariness

of Trevino’s statement require this Court to abate the appeal and remand for an

evidentiary hearing on the voluntariness issue. See TEX. CODE CRIM. PROC. ANN.

art. 38.22, § 6; Vasquez, 411 S.W.3d at 920; Douglas v. State, 900 S.W.2d 760, 762

(Tex. App.—Corpus Christi 1995, pet. ref’d).

We ABATE the appeal, and REMAND the case to the trial court, and order the

judge of the 379th District Court of Bexar County to conduct a hearing in accordance

with Texas Code of Criminal Procedure article 38.22, section 6, to determine the

voluntariness of any statement or confession made by appellant which was introduced

into evidence at trial. The hearing shall be conducted within thirty days of the issuance

2 of this order, or the trial court shall inform this Court within thirty days of the issuance of

this order of the hearing date. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6;

Douglas, 900 S.W.2d at 762. It is further ordered that the judge of the 379th District

Court thereafter: (1) prepare written findings of fact and conclusions of law in

compliance with article 38.22, section 6 of the code of criminal procedure; (2) cause

them to be included in a supplemental clerk’s record, (3) cause the hearing to be

transcribed and included in a supplemental reporter’s record; (4) and forward the

supplemental record to the Clerk of this Court within twenty days of the hearing. See

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6.

Upon receipt of the supplemental record, this cause will be resubmitted for

further consideration by the Court upon the original briefs filed by the parties, unless

prior permission for supplementation of the same is requested and granted.

IT IS SO ORDERED.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 5th day of October, 2015.