Terri Leann Jones Dronet v. State

• Court: Court of Appeals of Texas
• Decided: February 28, 2013
• Docket: 09-11-00444-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00444-CR ____________________

TERRI LEANN DRONET, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR26673 ________________________________________________________ _____________

ORDER

In this appeal Terri Leann Dronet has challenged the voluntariness of her

confession. On submission of the appeal, it became apparent that the judge who

heard the motion to suppress did not make findings of fact and conclusions of law.

See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West 2005). At the Court’s

request, the parties stated their positions regarding whether the appeal must be

abated and the case remanded to the trial court for a new suppression hearing and

findings of fact and conclusions of law. See Garcia v. State, 15 S.W.3d 533, 536-

1 37 (Tex. Crim. App. 2000). The State contends that the appellant procedurally

defaulted by failing to request written findings. See State v. Terrazas, 4 S.W.3d

720, 728 (Tex. Crim. App. 1999). In the alternative, the State argues that because

the judge who heard the motion to suppress is deceased, the present trial judge may

prepare findings of fact and conclusions of law without explicit credibility

determinations. Appellant notes that she has not requested findings of fact and

conclusions of law; moreover, she has not requested a new suppression hearing

before the present trial judge.

The most recent published opinion of the Court of Criminal Appeals on this

issue states that article 38.22, § 6 is mandatory and requires that findings be made

without regard to whether the defendant has objected to the absence of the omitted

findings. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004); see also

Tex. Code. Crim. Proc. Ann. art. 38.22, § 6. It appears the Court of Criminal

Appeals considers entry of findings a duty of the court that arises whether or not

the parties request findings. The Court of Criminal Appeals has held that it is not

appropriate for a judge, over the objection of the appellant, to make findings of fact

and conclusions of law that require an evaluation of credibility and demeanor

based solely upon a record of a previous hearing at which a different judge

presided. Garcia, 15 S.W.3d at 535-36. Neither an objection to the lack of findings

2 nor a request for a new suppression hearing has been made by the appellant;

consequently we are presented only with the necessity of complying with the

statute and obtaining findings sufficient to conduct an appellate review of the

voluntariness of the confession.

It is, therefore ORDERED that the appeal is abated and the case is remanded

to the trial court for further proceedings relating to a determination of the

voluntariness of the appellant’s confession. See Tex. R. App. P. 44.4. At the

appellant’s request, the trial court may conduct a new suppression hearing. The

trial court shall make findings of fact and conclusions of law. See Tex. Code Crim.

Proc. Ann. art. 38.22, § 6. A supplemental clerk’s record, containing the trial

court’s findings of fact and conclusions of law, together with a supplemental

reporter’s record of any hearing conducted by the trial court, shall be filed with the

Court of Appeals by April 1, 2013. The appeal will be reinstated without further

order of the Court when the supplemental record is filed.

The appellant may address the trial court’s findings in a supplemental brief,

which must be filed within thirty days after the supplemental record is filed. If the

appellant files a supplemental brief, the State may file a supplemental brief in

response, due thirty days after the appellant files her supplemental brief.

3 ORDER ENTERED February 28, 2013.

PER CURIAM

Before Gaultney, Kreger, and Horton, JJ.