State v. Victoria Mari Velasquez

Opinion

ACCEPTED

04-15-00239-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/28/2015 5:05:23 PM

KEITH HOTTLE

CLERK

No. 04-15-00239-CR

STATE of TEXAS, § IN THE FOURTHFILED DISTRICT

IN

Appellant § 4th COURT OF APPEALS SAN ANTONIO, TEXAS

§

4/28/2015 5:05:23 PM

v. § COURT OF APPEALS KEITH E. HOTTLE

§ Clerk VICTORIA VELASQUEZ, § Appellee § SAN ANTONIO, TEXAS

STATE’S MOTION TO ABATE APPEAL AND REMAND CASES TO TRIAL COURT WITH ORDERS TO ENTER FINDINGS OF FACT AND CONCLUSIONS OF LAW

TO THE HONORABLE COURT OF APPEALS:

NOW COMES the State of Texas, by and through Nicholas “Nico” LaHood,

Criminal District Attorney of Bexar County, Texas, and the undersigned assistant

criminal district attorney, with the filing of this motion to abate. The State

respectfully moves this Court to abate these appellate proceedings and remand this

case to the trial court with orders to enter findings of fact and conclusions of law.

I. Statement of the Case

Victoria Mari Velasquez, hereinafter referred to as Appellee, was charged by

information with intentionally or knowingly possessing a usable quantity of

marihuana (C.R. at 7). See TEX. HEALTH & SAFETY CODE § 481.121(a). The trial

court signed an order suppressing evidence on April 13, 2015 (C.R. at 63). On

April 14, 2015, the State requested findings of fact and conclusions of law (II R.R.

at 2). The appellate record currently contains no findings of fact or conclusions of

law.

II. Relief Requested

A trial court is obligated to enter findings of fact and conclusions of law

upon a timely request from the nonprevailing party. State v. Cullen, 195

S.W.3d 696, 699 (Tex. Crim. App. 2006). When a timely request is made and a

trial court fails to enter findings of fact and conclusions of law, an appellate court

must abate the appeal and remand the case back to the trial court. State v. Elias,

339 S.W.3d. 667, 680 (Tex. Crim. App. 2011); TEX. R. APP. P. 44.4(a). The State

requested findings of fact and conclusions of law; however, the appellate record

does not contain any findings or conclusions. Accordingly, the State requests that

this appeal be abated and remanded to the trial court to enter findings of fact and

conclusions of law.

To the trial court’s credit, it appears from the clerk’s record that it placed a

sticky note on the file with instructions for “Brooke to prepare FOF + Con’s of

Law” (C.R. at 6). Brooke Bauman is a staff attorney for the Bexar County Courts

at Law. The undersigned counsel believes that the trial court and its staff only

require additional time for preparation and compliance with the State’s request.

3

III. Prayer

WHEREFORE, PREMISES CONSIDERED, the State prays the Court abate

this appeal and remand this case to the trial court with orders to enter findings of

fact and conclusions of law.

Respectfully submitted,

NICHOLAS “NICO” LAHOOD Criminal District Attorney Bexar County, Texas

/s/ Nathan E. Morey

NATHAN E. MOREY Assistant Criminal District Attorney State Bar No. 24074756 101 West Nueva, Suite 370 San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 Email: nathan.morey@bexar.org Attornesy for the State of Texas

4

CERTIFICATE OF SERVICE

I, Nathan E. Morey, Assistant Criminal District Attorney, Bexar County,

Texas, hereby certify that a true copy of the above and foregoing Motion was

mailed to Neil A. Calfas on Wednesday, April 29, 2015.

/s/ Nathan E. Morey

NATHAN E. MOREY Assistant Criminal District Attorney State Bar No. 24074756 101 West Nueva Street, Suite 370 San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 Email: nathan.morey@bexar.org Attorney for the State of Texas

cc: NEIL A. CALFAS Attorney at Law State Bar No. 50511505 540 South St. Mary’s Street San Antonio, Texas 78205 Voice: (210) 212-7766 Fax: (210) 212-6969 Attorney for the Defendant/Appellee