the State of Texas v. Brandon James Cielencki

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 moves to abate and remand this cause to the trial court a second time for

entry of findings of fact and conclusions of law. The State has appealed from the trial court’s

November 18, 2022 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 on November 21, 2022, a request

for findings of fact and conclusions of law. The clerk’s record was filed in this Court on

December 1, 2022, and the reporter’s record was filed December 15, 2022.

The State moved to abate this appeal and remand the cause for filing of findings

and conclusions because the filing of the appellate record deprived the trial court of jurisdiction.

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.”). By order dated January 6, 2023, this Court granted the motion, abated the appeal, and remanded the cause to the trial court

to make findings of fact and conclusions of law. On January 11, 2023, the trial court clerk filed a

supplemental clerk’s record containing findings of fact and conclusions of law signed on

December 22, 2022.

The State filed a second motion to abate and remand in which it contends

correctly that, because the trial court signed the findings and conclusions after the original

appellate record was filed and before this Court abated this appeal, the findings and conclusions

were null and void. See Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995) (filing of

appellate record deprives trial court of jurisdiction); see also Berry v. State, 995 S.W.2d 699, 701

(Tex. Crim. App. 1999) (findings and conclusions made by trial court after appellate record filed

are null and void). The State requests another remand for the trial court to make findings and

conclusions while it has jurisdiction, plus time for the parties to object to the findings, and for the

court to make any additional findings and conclusions it deems appropriate.

We grant the motion. The trial court shall sign findings of fact and conclusions of

law on or before February 10, 2023. Consistent with the rules of civil procedure, the parties shall

file any objections to the findings and conclusions within ten days after the date the trial court

makes its findings and conclusions, and the trial court shall file any amended or additional

findings and conclusions within ten days after any objections and additional requests are filed.

See Tex. R. Civ. P. 298; see also State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006)

(using rules of civil procedure to guide timetables regarding findings and conclusions). The trial

court will retain plenary power over this cause until the time to file amended or additional

findings or conclusions in response to the parties’ objections and requests passes.

2 To avoid confusion over plenary power, this Court requests that the trial court’s

clerk not file a supplemental record until the date for the trial court to file any amended or

additional findings and conclusions has passed, which we calculate will be March 3, 2023. The

trial court’s clerk shall file the record no later than March 13, 2023, absent further order of

this Court.

Ordered January 31, 2023.

Before Chief Justice Byrne, Justices Triana and Theofanis

Abated and Remanded

Do Not Publish