Shakeitha Cartwright v. State

Opinion

ACCEPTED 12-14-00044-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/21/2015 11:17:44 AM Pam Estes CLERK

12-14-00044-CR

FILED IN 12th COURT OF APPEALS IN THE TWELFTH COURT OF APPEALS OF TEXAS TYLER, TEXAS 9/21/2015 11:17:44 AM TYLER, TEXAS PAM ESTES Clerk

SHAKEITHA CARTWRIGHT Appellant

v.

THE STATE OF TEXAS Appellee

On Appeal from Cause No. 13-CR-18,695

In the 273rd Judicial District Court of Shelby County, Texas

STATE’S OPPOSITION TO MOTION FOR REHEARING and OPPOSITION TO MOTION TO ABATE APPEAL

123rd JUDICIAL DISTRICT ATTORNEY’S OFFICE

Kenneth Florence, District Attorney Lead Counsel State Bar No. 00790698 200 San Augustine Street - Suite 12 Center, Texas 75935 (936) 598-2489 (936) 598-4106 Fax The State hereby opposes the Motion for Rehearing and Motion to Abate

Appeal.

Motion for Rehearing

Appellant has filed a Motion for Rehearing arguing that this Court failed to

consider the case Vasquez v. State, 411 S.W.3d 918 (Tex.Crim.App. 2013). This

Court has ruled properly in denying the Motion to Abate Appeal, and Vasquez

supports this Court’s prior ruling.

The legal principles quoted by Appellant from the Vasquez case support the

denial. (Quoted language at P.2-3 of Appellant’s currently pending motion.)

First, the trial court did enter a written order. (Supplemental Clerk’s Record

(filed April 17, 2015)(“Nunc Pro Tunc Findings of Fact and Conclusion [sic] of

Law Regarding Voluntariness of Written Confession and Oral Confession

Pursuant to Jackson v. Denno and TEX. CODE CRIM. PROC., ART. 38.22, SEC. 6").

Second, the trial judge did in fact actually issue written findings of fact and

conclusions of law at the time of trial, they simply were not properly filed into the

clerk’s record. Id. at ¶2. Vasquez has been satisfied.

Appellant then further re-urges the issues he raised in his original motion.

Therefore, the State will detail it’s opposition on the merits below. Motion to Abate Appeal

The argument that the trial judge could not read and rely on the prior

recorded testimony at the initial Jackson v. Denno (art. 38.22, TEX. CODE CRIM

PROC.) hearing was waived because defense trial counsel expressly consented to

the trial judge reading the prior record to make his voluntariness determination.

(RR, V. 4, P. 144-146 (agreement of parties); RR, V. 5, P. 9-10(defense attorney

inquiry to Court about whether the Court had finished reading prior Jackson v.

Denno record); RR, V. 5, P. 193(agreement of parties)).

Additionally, some new testimonial evidence was presented at the continued

hearing, not simply a cold record (RR., V. 5, P. 193-207 (Det. Nicole Faulkner

testifying). Portions of the video confessions germane to voluntariness were also

played. Id.

Finally, the Judge did in fact review the complained of video testimony and

written confession and did in fact timely sign written findings of fact and

conclusions of law as to both written and recorded confessions....the document just

did not make it into the written record due to a ministerial error. The trial judge

signed and filed written findings of fact and conclusions of law Nunc Pro Tunc,

identical to the original findings and conclusions, which relate back to the time

when the original findings and conclusions were made and were in fact originally

executed. (See Supplemental Clerk’s Record (filed April 17, 2015)(Nunc Pro Tunc at ¶2, passim); see also, RR, V. 5, P. 201, 205, 207(Judge’s in-court ruling).

Undersigned counsel also independently recalls Judge Mitchell signing Findings

and Conclusions at the time of trial.

Finally, in the Nunc Nunc Pro Tunc Findings and Conclusions the trial judge

noted that after watching all of the video confession and hearing all of the trial

testimony, nothing would have changed his opinion that the written and recorded

confessions were voluntary. Id. at ¶3.

Accordingly, no remand is necessary. Clearly, another evidentiary hearing is

not warranted under the unique circumstances of this case...the judge has already

heard all of the trial evidence and testimony and made a written ruling at the time of

trial...it just did not make it into the record somehow. The Nunc Pro Tunc Findings

of Fact and Conclusions of Law before the Court relate back to the filing date at the

time of trial, so therefore Vasquez v. State, 411 S.W.3d 918 (Tex.Crim.App. 2013)

has been satisfied and does not mandate a remand in this particular case.

///

/// PRAYER

WHEREFORE for the reasons set forth above, Appellant’s Motion for Rehearing

regarding the Motion to Abate Appeal should be DENIED. The Motion to Abate

Appeal was properly denied by this Court.

Respectfully submitted,

123rd JUDICIAL DISTRICT ATTORNEY

/S/ Kenneth B. Florence STATE’S ATTORNEY TB#00790698 200 San Augustine Street ~ Suite 12 Center, Texas 75935 (936) 598-2489 Fax (936) 598-4106

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the State’s Opposition to

Motion for Rehearing and Opposition to Motion to Abate Appeal, as related above,

was served upon, Seth Johnson, Attorney for Appellant, via e-file, on this 21st day

of September 2015.

/S/ Kenneth B. Florence