ACCEPTED 03-15-00153-CR 5294072 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/14/2015 5:35:08 PM JEFFREY D. KYLE CLERK NO. 03-15-00153-CR
THE STATE OF TEXAS § IN THE THIRD FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS v. § DISTRICT 5/14/2015 COURT5:35:08 OF PM JEFFREY D. KYLE FRANCES ANITA ROBINSON § APPEALS OF TEXAS Clerk
STATE’S VERIFIED MOTION TO ABATE AND REMAND
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes the State of Texas, Appellant in the above styled and numbered
cause, and files this verified motion to abate and remand the instant cause to the
trial court so that it may file its findings of fact and conclusions of law for
inclusion in the appellate record, and would show unto the Court the following:
I.
Appellee was indicted by a grand jury on June 5, 2013 for the charge of
Intoxication Manslaughter in CR2013-267. After Appellee’s motion to suppress
evidence was granted by the trial court on February 18, 2015, the State timely
appealed pursuant to article 44.01 of the Code of Criminal Procedure. The State
timely filed its request for findings of fact and conclusions of law with the trial
court on March 10, 2015. See Tex. R. Civ. P. 296.
The Clerk’s Record in the instant cause was quickly filed with the Court on
March 13th, while the Reporter’s record was filed on March 20th, the same day the
Court of Appeals granted the State’s motion to stay proceedings in the trial court.
1 Although not required in criminal cases, out of an abundance of caution, the State
timely filed a notice of past due findings of fact and conclusions of law on April 9,
2015, along with the State’s proposed findings for the trial court. See Tex. R. Civ.
P. 297.
On May 6, 2015, the State discovered that the trial court had filed findings
and conclusions on April 17, 2015. The State had no notice or actual knowledge of
the findings until May 6, 2015. The State confirmed on May 6th that neither the
trial court’s findings and conclusions nor any notice of the entry of said findings
was sent to the parties in the instant cause. But see id. (“[t]he court shall cause a
copy of its findings and conclusions to be mailed to each party in the suit.”); see
also Tex. R. Civ. P. 298 (giving parties 10 days from the filing of the court’s
findings to request additional or amended findings). As proof of the foregoing, the
State directs the Court’s attention to the attached State’s Affidavit, verifying the
facts set forth in the instant motion are true and correct.
II.
The State is entitled to findings of fact and conclusions of law in the instant
appeal. In State v. Cullen, the Court of Criminal Appeals held that:
[e]ffective from the date of this opinion … upon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings. By “essential findings,” we mean that the trial court must make findings of fact and conclusions of law adequate
2 to provide an appellate court with a basis upon which to review the trial court’s application of the law to the facts.
195 S.W.3d 696, 699 (Tex. Crim. App. 2006). In the instant case, the trial court did
file findings on April 17, 2015. However, the Court of Criminal Appeals has held
that findings entered after a trial court is deprived of jurisdiction are void. Green v.
State, 906 S.W.2d 937, 940 (Tex. Crim. App. 1995). A trial court in a criminal case
is deprived of jurisdiction when the trial record is filed. Id. at 939; see also Tex. R.
App. P. 25.2(g). Green added that Rule of Appellate Procedure 55(b) “does not
provide authority or jurisdiction for the trial court to make written findings which
did not previously exist.” 906 S.W.2d at 940 n.3. In that case, the appeal was
abated and remanded so the trial court’s findings could be included in the record.
Id. at 940.
In the instant case, because the clerk’s record was filed almost immediately
after the notice of appeal on March 13th – and the reporter’s record was filed days
later on the 20th – the trial court was unable to include its findings and conclusions
in the appellate record. Under Green, the findings and conclusions which were
filed on April 17th – after the trial court was divested of jurisdiction – are void. Id.
To ensure the record contains the findings to which it is entitled, the State
respectfully requests that this Court abate and remand the instant appeal with the
direction to re-file the trial court’s findings, and to allow the State time to object or
request additional findings. See id.; see also Blocker v. State, 231 S.W.3d 595, 598
3 (Tex. App.—Waco 2007, no pet.); Marrero v. State, 03-14-00033-CR, 2014 WL
4400771, at *1 (Tex. App.—Austin Sept. 4, 2014, no pet.) (mem. op., not
designated for publication); cf. McShan v. Pitts, 538 S.W.2d 266 (Tex. Civ. App.—
San Antonio 1976, no writ) (“Here the findings of fact and conclusions of law were
made, but not in time for appellant to have any opportunity to request additional
findings. We conclude that instead of reversing the judgment, the proper order is
one directing the trial court to file its findings of fact and conclusions of law so as
to give appellant the opportunity to request further, additional, or amended findings
in accordance with Rule 298, Tex. R. Civ. P.”).
III.
WHEREFORE, PREMISES CONSIDERED, the State’s counsel
respectfully prays that the Honorable Court of Appeals abate and remand the
instant appeal, and direct the trial court to re-file its findings. Further, the State
prays that the Court direct that any supplemental clerk’s record not be filed until
the State has been afforded the opportunity to request additional or amended
findings under Tex. R. Civ. P. 298, and the trial court in turn has time to file such
findings.
4 Respectfully submitted,
/s/ Daniel Palmitier Daniel Palmitier SBN: 24062984 palmid@co.comal.tx.us Comal Criminal District Attorney’s Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Ph: (830) 221-1300 / Fax: (830) 608-2008
5 THE STATE OF TEXAS § COUNTY OF COMAL §
STATE'S VERFICATION AFFIDAVIT
BEFORE ME, the undersigned authority, on this day personally appeared
Daniel Palmitier, who being by me duly sworn, upon oath states that he is above
the age of 18, of sound mind and capable of making this affidavit, that he is an
attorney for the State ofTexas in the above and foregoing cause- 03-15-00153-CR
in the Court of Appeals, trial court cause number CR2013-267, The State ofTexas
v. Frances Anita Robinson in the 207 1h District Court of Comal County, Texas-
and that the facts stated in the foregoing State's Verified Motion to Abate and
Remand are true and correct.
SUBSCRIBED AND SWORN to before me, this, the 1/1 1h day of May, 2015, to certify which witness my hand and seal of office.
e ELVAA. BRENNER Notary Public. Stale of Texas My CommiSSIOn Exp1res SEPTEMBER 19,2016 Notary Public in and for the State of Texas ~ My Commission Expires:~/~ liJI~
6 CERTIFICATE OF SERVICE
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ACCEPTED 03-15-00153-CR 5294072 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/14/2015 5:35:08 PM JEFFREY D. KYLE CLERK NO. 03-15-00153-CR
THE STATE OF TEXAS § IN THE THIRD FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS v. § DISTRICT 5/14/2015 COURT5:35:08 OF PM JEFFREY D. KYLE FRANCES ANITA ROBINSON § APPEALS OF TEXAS Clerk
STATE’S VERIFIED MOTION TO ABATE AND REMAND
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes the State of Texas, Appellant in the above styled and numbered
cause, and files this verified motion to abate and remand the instant cause to the
trial court so that it may file its findings of fact and conclusions of law for
inclusion in the appellate record, and would show unto the Court the following:
I.
Appellee was indicted by a grand jury on June 5, 2013 for the charge of
Intoxication Manslaughter in CR2013-267. After Appellee’s motion to suppress
evidence was granted by the trial court on February 18, 2015, the State timely
appealed pursuant to article 44.01 of the Code of Criminal Procedure. The State
timely filed its request for findings of fact and conclusions of law with the trial
court on March 10, 2015. See Tex. R. Civ. P. 296.
The Clerk’s Record in the instant cause was quickly filed with the Court on
March 13th, while the Reporter’s record was filed on March 20th, the same day the
Court of Appeals granted the State’s motion to stay proceedings in the trial court.
1 Although not required in criminal cases, out of an abundance of caution, the State
timely filed a notice of past due findings of fact and conclusions of law on April 9,
2015, along with the State’s proposed findings for the trial court. See Tex. R. Civ.
P. 297.
On May 6, 2015, the State discovered that the trial court had filed findings
and conclusions on April 17, 2015. The State had no notice or actual knowledge of
the findings until May 6, 2015. The State confirmed on May 6th that neither the
trial court’s findings and conclusions nor any notice of the entry of said findings
was sent to the parties in the instant cause. But see id. (“[t]he court shall cause a
copy of its findings and conclusions to be mailed to each party in the suit.”); see
also Tex. R. Civ. P. 298 (giving parties 10 days from the filing of the court’s
findings to request additional or amended findings). As proof of the foregoing, the
State directs the Court’s attention to the attached State’s Affidavit, verifying the
facts set forth in the instant motion are true and correct.
II.
The State is entitled to findings of fact and conclusions of law in the instant
appeal. In State v. Cullen, the Court of Criminal Appeals held that:
[e]ffective from the date of this opinion … upon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings. By “essential findings,” we mean that the trial court must make findings of fact and conclusions of law adequate
2 to provide an appellate court with a basis upon which to review the trial court’s application of the law to the facts.
195 S.W.3d 696, 699 (Tex. Crim. App. 2006). In the instant case, the trial court did
file findings on April 17, 2015. However, the Court of Criminal Appeals has held
that findings entered after a trial court is deprived of jurisdiction are void. Green v.
State, 906 S.W.2d 937, 940 (Tex. Crim. App. 1995). A trial court in a criminal case
is deprived of jurisdiction when the trial record is filed. Id. at 939; see also Tex. R.
App. P. 25.2(g). Green added that Rule of Appellate Procedure 55(b) “does not
provide authority or jurisdiction for the trial court to make written findings which
did not previously exist.” 906 S.W.2d at 940 n.3. In that case, the appeal was
abated and remanded so the trial court’s findings could be included in the record.
Id. at 940.
In the instant case, because the clerk’s record was filed almost immediately
after the notice of appeal on March 13th – and the reporter’s record was filed days
later on the 20th – the trial court was unable to include its findings and conclusions
in the appellate record. Under Green, the findings and conclusions which were
filed on April 17th – after the trial court was divested of jurisdiction – are void. Id.
To ensure the record contains the findings to which it is entitled, the State
respectfully requests that this Court abate and remand the instant appeal with the
direction to re-file the trial court’s findings, and to allow the State time to object or
request additional findings. See id.; see also Blocker v. State, 231 S.W.3d 595, 598
3 (Tex. App.—Waco 2007, no pet.); Marrero v. State, 03-14-00033-CR, 2014 WL
4400771, at *1 (Tex. App.—Austin Sept. 4, 2014, no pet.) (mem. op., not
designated for publication); cf. McShan v. Pitts, 538 S.W.2d 266 (Tex. Civ. App.—
San Antonio 1976, no writ) (“Here the findings of fact and conclusions of law were
made, but not in time for appellant to have any opportunity to request additional
findings. We conclude that instead of reversing the judgment, the proper order is
one directing the trial court to file its findings of fact and conclusions of law so as
to give appellant the opportunity to request further, additional, or amended findings
in accordance with Rule 298, Tex. R. Civ. P.”).
III.
WHEREFORE, PREMISES CONSIDERED, the State’s counsel
respectfully prays that the Honorable Court of Appeals abate and remand the
instant appeal, and direct the trial court to re-file its findings. Further, the State
prays that the Court direct that any supplemental clerk’s record not be filed until
the State has been afforded the opportunity to request additional or amended
findings under Tex. R. Civ. P. 298, and the trial court in turn has time to file such
findings.
4 Respectfully submitted,
/s/ Daniel Palmitier Daniel Palmitier SBN: 24062984 palmid@co.comal.tx.us Comal Criminal District Attorney’s Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Ph: (830) 221-1300 / Fax: (830) 608-2008
5 THE STATE OF TEXAS § COUNTY OF COMAL §
STATE'S VERFICATION AFFIDAVIT
BEFORE ME, the undersigned authority, on this day personally appeared
Daniel Palmitier, who being by me duly sworn, upon oath states that he is above
the age of 18, of sound mind and capable of making this affidavit, that he is an
attorney for the State ofTexas in the above and foregoing cause- 03-15-00153-CR
in the Court of Appeals, trial court cause number CR2013-267, The State ofTexas
v. Frances Anita Robinson in the 207 1h District Court of Comal County, Texas-
and that the facts stated in the foregoing State's Verified Motion to Abate and
Remand are true and correct.
SUBSCRIBED AND SWORN to before me, this, the 1/1 1h day of May, 2015, to certify which witness my hand and seal of office.
e ELVAA. BRENNER Notary Public. Stale of Texas My CommiSSIOn Exp1res SEPTEMBER 19,2016 Notary Public in and for the State of Texas ~ My Commission Expires:~/~ liJI~
6 CERTIFICATE OF SERVICE
I, Daniel Palmitier, Assistant District Attorney for Appellant, the State of Texas, hereby certify that a true and correct copy of the above and foregoing State’s Verified Motion to Abate and Remand was sent to Defendant/Appellee FRANCES ANITA ROBINSON’s attorney of record in this matter:
Mr. Charles Sullivan csullivan@lawcsullivan.com 308 Campbell Dr. Canyon Lake, TX 78133 Fax: 210-579-6448 Attorney for Appellee on Appeal
By electronic service to the above-listed email address on this the 14th day of May, 2015.
/s/ Daniel Palmitier Daniel Palmitier