Virna Catherine Fender v. State

• Court: Court of Appeals of Texas
• Decided: August 11, 2020
• Docket: 09-19-00333-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00333-CR __________________

VIRNA CATHERINE FENDER, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the County Court at Law No. 5 Montgomery County, Texas Trial Cause No. 19-338600 __________________________________________________________________

ORDER

In a series of motions and notices filed after the parties filed their briefs for

the appeal, the appellant, Virna Catherine Fender, asked this Court: (1) to strike the

State’s brief as a fraud upon the court because the brief incorrectly stated that the

case was heard before a jury; (2) to allow her to “Amend the appeal”, which we

interpret to be a request to correct briefing deficiencies; (3) to take judicial notice of

her appeal from an administrative license suspension; and (4) to direct the trial court

to issue findings of fact and conclusions of law regarding her motion to suppress

1 evidence. The State amended its brief but did not file a response to Fender’s other

motions.

In the interest of justice, we abate the appeal and remand the case to the trial

court for entry of written findings of fact and conclusions of law on the trial court’s

essential findings on Fender’s motion to suppress evidence. See State v. Cullen, 195

S.W.3d 696, 698-99 (Tex. Crim. App. 2006). A supplemental clerk’s record

containing the trial court’s findings of fact and conclusions of law shall be filed with

the Court of Appeals on or before September 10, 2020. The appeal will be reinstated

without further order of this Court when the supplemental clerk’s record is filed. The

parties may file supplemental briefs that address the trial court’s findings of fact and

conclusions of law. See Tex. R. App. P. 38.7. The appellant’s supplemental brief is

due thirty days after the supplemental clerk’s record is filed. The State’s

supplemental brief is due thirty days after the appellant files her supplemental brief.

This Court will take judicial notice of Appeal Number 09-19-00338-CV, but the

clerk’s record filed in that appeal is not a part of and will not be considered as the

record of this appeal. See State v. Clammer, 999 S.W.2d 903, 906 (Tex. App.—

Amarillo 1999, pet. ref’d) (the appellate court reviews the trial court’s judgment

based upon the evidence before the trial court at the time it made the decision

complained of.). All other requested pre-submission relief is denied.

ORDER ENTERED August 11, 2020.

2 PER CURIAM

Before McKeithen, C.J., Kreger and Johnson, JJ.