State v. Javier Terrazas

• Court: Court of Appeals of Texas
• Decided: April 23, 2013
• Docket: 08-12-00095-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

THE STATE OF TEXAS, § No. 08-12-00095-CR Appellant, § Appeal from the v. § County Court at Law No. 7 JAVIER TERRAZAS, § of El Paso County, Texas Appellee. § (TC# 20110C04803)

O R D E R

The Court on its own motion ORDERS the trial court to prepare supplemental findings of

fact and conclusions of law relating to the Motion to Suppress, as set out below.

We have reviewed the findings of fact and conclusions of law prepared by the trial court in

this matter. After reviewing these findings, we have determined that critical findings pursuant to

Section 724.012(b)(3)(B) of the Texas Transportation Code are missing. Thus, we remand this

case so that the trial court can make the critical findings. See TEX.R.APP.P. 44.4; State v. Elias,

339 S.W.3d 667, 676-77 (Tex.Crim.App. 2011).

Section 724.012(b)(3)(B) provides the following:

(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle . . . and the person refuses the officer's request to submit to the taking of a specimen voluntarily: . . .

(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:

. . .

(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04 [Driving While Intoxicated] . . . .

TEX.TRANSP.CODE ANN. § 724.012(b)(3)(B)(West 2011).

We conclude that under Section 724.012(b)(3)(B), critical findings are (1) whether at the

time of the arrest, the officer received reliable information and (2) whether the source of the

information was credible. In looking at the trial court’s findings of fact and conclusions of law,

we note that although the trial court made a finding that a DIMS clerk informed Officer Castaneda

that Mr. Terrazas had two previous convictions for driving while intoxicated, the trial court made

no finding as to whether at the time of the arrest this information was (1) reliable and (2) from a

credible source.

The trial court shall, within thirty (30) days after the date of this order, (1) produce written

findings of fact and conclusions of law pertinent to the ruling on the Motion to Suppress, including

the critical findings noted above and forward the same to the County Clerk of El Paso County; and

(2) the County Clerk of El Paso County shall prepare and file a supplemental clerk’s record

containing the written findings of fact and conclusions of law with the Clerk of this court within

forty-five (45) days after the date of this order.

IT IS SO ORDERED THIS 23RD DAY OF APRIL, 2013.

PER CURIAM