the State of Texas v. Brandon James Cielencki

• Court: Court of Appeals of Texas
• Decided: January 6, 2023
• Docket: 03-22-00742-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00742-CR

The State of Texas, Appellant

v.

Brandon James Cielencki, Appellee

FROM THE 433RD DISTRICT COURT OF COMAL COUNTY, NO. CR2017-097, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

The State has appealed from the trial court’s order granting Brandon James

Cielencki’s motion to suppress. After filing a notice of appeal in this Court, the State filed in the

trial court a request for findings of fact and conclusions of law on November 21, 2022. The

clerk’s record and reporter’s record were filed in this Court before the trial court filed any

findings or conclusions. The State moves to abate and remand the cause to the trial court for

entry of findings of fact and conclusions of law. The State asserts that in an abundance of

caution it filed a notice of past due findings and conclusions in the trial court.

The State contends that the filing of the appellate record deprived the trial court of

jurisdiction to make findings and conclusions. See Tex. R. App. P. 25.2(g) (“Once the record has

been filed in the appellate court, all further proceedings in the trial court—except as provided

otherwise by law or by these rules—will be suspended until the trial court receives the appellate- court mandate”). In addition to abatement and remand, the State requests that the parties have

the opportunity to object and request additional findings and conclusions as necessary and the

trial court have the opportunity to reconsider its decision on the motion to suppress in light of its

findings and conclusions.

Cielencki responds that abatement and remand is unnecessary because the trial

court timely filed its findings and conclusions on December 22, 2022. He contends that the rules

for the timely filing of findings and conclusion provide the exception to the general rule that the

filing of the appellate record deprives the trial court of jurisdiction. See Tex. R. App. P. 25.2(g).

The Texas Rules of Civil Procedure have guided the time periods for filing findings and

conclusions. State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (citing Tex. R. Civ.

P. 297). Cielencki asserts that the trial court retained jurisdiction because it was obligated by

rule to make findings and conclusions, and it made them within the extended period triggered by

the State’s timely notice of past-due findings and conclusions. See Tex. R. Civ. P. 297.

The Court of Criminal Appeals has held, however, that when the trial record has

been filed with the court of appeals the trial court loses jurisdiction to make findings and

conclusions. Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995) (interpreting former

Tex. R. App. P. 40(b)(2) (“In the appeal of a criminal case when the record has been filed in the

appellate court all further proceedings in the trial court, except as provided by law or by these

rules, shall be suspended and arrested until the mandate of the appellate court is received by the

trial court”)). If the trial court has lost jurisdiction because the record has been filed in the court

of appeals but findings and conclusion have been requested timely, the proper way to revive the

trial court’s jurisdiction is to abate and remand the cause. Id. at 939-40 & n.4; See also State

v. Minatra, No. 03-20-00160-CR, 2020 WL 1932909, at *1 (Tex. App.—Austin Apr. 21, 2020,

2 order). Findings and conclusions made by the trial court after the record was filed in the court of

appeals are null and void if made before abatement and remand to the trial court. Berry v. State,

995 S.W.2d 699, 701 (Tex. Crim. App. 1999); see also State v. Garrett, No. 03-17-00333-CR,

2017 WL 3044379, at *1 (Tex. App.—Austin July 14, 2017, order).

The trial court had no jurisdiction to make findings and conclusions after the

appellate record was filed in this Court on December 15, 2022.

We grant in part the State's motion. We abate the appeal and remand the cause to

the trial court to make findings of fact and conclusions of law based on previously admitted

evidence. We otherwise overrule the motion. A supplemental clerk’s record containing the

findings of fact and conclusions of law made while the trial court has jurisdiction shall be filed

with this Court no later than February 7, 2023. This appeal will be reinstated once the

supplemental clerk's record is filed.

Ordered January 6, 2023.

Before Chief Justice Byrne, Justices Triana and Theofanis

Abated and Remanded

Do Not Publish