Blocker v. State , 2007 Tex. App. LEXIS 6714 ( 2007 )

ABATEMENT ORDER

PER CURIAM.

Appellant Derek Blocker, upon pleading guilty, appeals with permission the trial court’s denial of his motion to suppress, which occurred on August 22, 2006. At the conclusion of the suppression hearing, the following colloquy occurred:

THE COURT: The Motion to Suppress — Defendant’s Motion to Suppress is denied. Are y’all ready to proceed?

MR. SHAW: We’ve worked something out.

THE COURT: What have y’all worked out? I’m in the dark here.

MR. SHAW: Aplea.

THE COURT: With right of appeal?

MR. SHAW: Right. And we’re going to ask for Findings of Fact and Conclusions of Law.

THE COURT: Okay. Let’s do this— have y’all already got the paperwork?

MR. SHAW: No.

MS. BURNETT: I need to fill it out.

THE COURT: Why don’t y’all get that

done....

[Emphasis added].

After a recess, Blocker pled guilty with the right to appeal the denial of his motion to suppress.

When the losing party on a motion to suppress requests findings of fact and conclusions of law, the trial court is required to make them. State v. Cullen, 195 S.W.3d 696, 698-99 (Tex.Crim.App.2006). The “efficient administration of justice will be served by a requirement that trial judges respond to a request for findings of fact and conclusions of law.” Id. at 699. The Court of Criminal Appeals recently explained more clearly the reason why from then on it required such findings and conclusions: “so that the appellate courts can better review the decision of the trial court without speculating about the reasons for the trial court’s decision.” Castro v. State, 227 S.W.3d 737, 743 (Tex.Crim.App.2007). We can better review the trial court’s decisions because we are not “forced to make assumptions (or outright guesses) about a trial court’s ruling on a motion to suppress evidence.”¹ Cullen, 195 S.W.3d at 698.

“The [trial court’s] findings and conclusions need to be recorded in some way, whether written out and filed by the trial court, or stated on the record at the hearing.” Cullen, 195 S.W.3d at 699. Cullen did not mandate the form for a request for findings and conclusions. Based on Cullen’s statement that the findings and conclusions need to be recorded some way — either written or orally made on the record — we hold that a request can likewise be timely written or orally made on the record.² See State v. Oages, 210 S.W.3d 643, 644 n. 3 (Tex.Crim.App.2006) (“Such a request is best accomplished by a formal motion for findings of fact and conclusions of law, made either on the record in open court or by written motion and timely presentation to the trial court.”).

We next consider the meaning of the following statement by Blocker’s attorney in the context that it was made: “And we’re going to ask for Findings of Fact and Conclusions of Law.” A narrow construction (such as the dissent’s) leads one to conclude that Blocker’s attorney was telling the trial court that he was going to make a request for findings and conclusions in the future. But with the suppression hearing at issue coming just seven weeks after Cullen was issued, and with a guilty plea to take place imminently, we can easily construe the statement to have been a passively respectful way to request the trial court to do something that it was only recently required to do on a losing party’s request.³

We reject the dissent’s narrow construction of Blocker’s attorney’s statement.⁴ The principal reason behind the requirement of findings and conclusions is so that we can “better review” a trial court’s suppression ruling. Castro, 227 S.W.3d at 743. We should thus endeavor to do so, and when a possibly ambiguous yet bona fide request is presented, we should construe it in favor of performing a better appellate review of the trial court’s ruling at issue.⁵

We hold that Blocker adequately requested findings of fact and conclusions of law. Because the trial court did not make the required findings and conclusions, we abate this appeal for the trial court to enter findings of fact and conclusions of law regarding the denial of the motion to suppress. See Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App.2004); Norton v. State, 156 S.W.3d 668, 669 (Tex.App.-Waco 2005, order); see also In re Graves, 217 S.W.3d 744, 754 (Gray, C.J., dissenting) (“The Court of Criminal Appeals has recently held that when required findings have not been made, we must first abate the appeal so that the required findings can be made.”); In re K.K., 180 S.W.3d 681, 686-88 (Tex.App.-Waco 2005, order) (abating appeal and remanding for eviden-tiary hearing on ineffective assistance claim in parental rights termination case); Jack v. State, 42 S.W.3d 291, 293-94 (Tex.App.-Houston [1st Dist.] 2001, order) (abating appeal and remanding for hearing and findings and conclusions on whether appellant had counsel and whether he received effective assistance of counsel during 30-day period for fifing motion for new trial).

The trial court shall, within thirty days after the date of this order: (1) make appropriate orders and findings of fact and conclusions of law; and (2) deliver any orders and findings of fact and conclusions of law to the trial court clerk.

The trial court clerk shall: (1) prepare a supplemental clerk’s record containing all orders and findings of fact and conclusions of law that the trial court renders or makes; and (2) file the supplemental clerk’s record with the Clerk of this Court within forty-five days after the date of this order.

Appellant’s supplemental brief, if any, will be due twenty days after the supplemental clerk’s record is filed. The State’s supplemental brief, if any, will be due twenty days after Appellant’s supplemental brief is due or is filed, whichever occurs earliest.

Chief Justice GRAY dissenting.

1 . When the trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit find-tags of fact that support its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 859 (Tex.Crim.App.2000).

2 . In Cullen, the Court of Criminal Appeals looked to a rule of civil procedure (Rule 297) only for a time period in which the trial court must make its findings and conclusions. See Cullen, 195 S.W.3d at 699. We do not believe that Cullen intended any importation of the civil procedure rules relating to requesting findings of fact and conclusions of law, and the Court’s more recent statement in Oages confirms our belief.

3 . In his brief, Blocker asserts that he requested findings and conclusions: "Appellant requested Findings of Fact and Conclusions of Law, but none were made available. [R.Vol.1-109].” We construe this as a complaint about the trial court’s failure to make findings and conclusions.

4 . And we note that trial judges and attorneys commonly speak like this in court. See, e.g., Ex parte Wheeler, 203 S.W.3d 317, 321 (Tex.Crim.App.2006) ("I am going to grant the motion for mistrial.”); City of Port Isabel v. Pinnell, 207 S.W.3d 394, 419 n. 31 (Tex.App.Corpus Christi 2006, no pet.) ("I’m going to grant the attorneys’ fees as requested by Pin-nell and the Town of South Padre.”); Aguilar v. State, 202 S.W.3d 840, 843 (Tex.App.-Waco 2006, pet. ref’d) ("I’m going to grant the State’s motion to have the sentences run consecutively.”); Donnell v. State, 191 S.W.3d 864, 867 (Tex.App.-Waco 2006, no pet.) ("You are going to hear testimony that is not consistent. Let me tell you what the actual truth is of that evening and what witnesses were there, and I’m going to ask that each one of you listen carefully for detail because that’s the only way you’ll be able to determine the truthfulness.”); Harrison v. State, 2005 WL 2665421, at *11 (Tex.App.-Waco Oct.19, 2005, pet. granted) (mem.op.) (not designated for publication) ("Q. Ms. Evans, I’m going to ask you to state your name please, for us? A. Hazel Marie Evans.”); Allen v. Albin, 97 S.W.3d 655, 662 (Tex.App.-Waco 2002, no pet.) (finding that trial court made an express ruling by stating, “so I’m going to grant the motion for summary judgment.... I hate to do it, but I’m going to grant the motion for summary judgment”); Glivens v. State, 2001 WL 1047534, at *12 (Tex.App.-Houston [1st Dist.] Aug. 31, 2001, pet. ref’d) (not designated for publication) ("[Prosecutor]: I am going to ask that defense counsel stop from clearly and totally interrupting d[ur]ing the argument.”); Slaughter v. State, 2001 WL 193767, at *6 (Tex.App.-Austin Feb.28, 2001, pet. ref’d) (not designated for publication) ("DEFENSE COUNSEL: I’m going to ask the jury to disregard the question and the answer. THE COURT: Okay. The jurors will disregard the last question and answer.”).

5 . We have previously abated an appeal sua sponte and remanded the case to the trial court for further proceedings so that we could better review the issue on appeal. See, e.g., In re K.K., 180 S.W.3d 681, 686-88 (Tex.App.Waco 2005, order) (in parental rights termination case, abating appeal and remanding for evidentiary hearing on ineffective assistance claim); see also In re T.N.F., 191 S.W.3d 329, 332 (Tex.App.-Waco 2006, order) (same).