Eric Dewayne Small v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF CONTINUING ABATEMENT
Appellate case name: Eric Dewayne Small v. The State of Texas
Appellate case number: 01-14-00421-CR
Trial court case number: 0985103
Trial court: 209th District Court of Harris County
Appellant, Eric Dewayne Small, appeals from the trial court’s denial of his motion to
suppress his oral statement made to a law enforcement officer. He states that his statement was
involuntary because a law enforcement officer “promised leniency” to a third person, Brandz
Anderson, in exchange for appellant’s statement. Appellant also asserts that his statement was
rendered involuntary by “the totality of the circumstances,” namely that his interview with a law
enforcement officer last four hours but only a portion of the interview was recorded, he was
subjected to “intimidation tactics” by a law enforcement officer at the beginning of the interview,
and a discussion between him and a law enforcement officer “about justice and mercy . . . lead[]
to [his] incriminating statements.”
The record shows that the trial court held a hearing outside the presence of the jury, at
which the parties litigated the issue of whether appellant’s statement was involuntary.
Afterwards, on the record, the trial court denied appellant’s motion to suppress.
The record does not reflect that the trial court made findings of fact or conclusions of law
related to appellant’s motion to suppress as required. Texas Code of Criminal Procedure article
38.22, section 6, provides in pertinent part:
If [a] statement has been found to have been voluntarily made and held admissible
as a matter of law and fact by the court in a hearing in the absence of the jury, the
court must enter an order stating its conclusion as to whether or not the statement
was voluntarily made, along with the specific finding of facts upon which the
conclusion was based, which order shall be filed among the papers of the cause.
TEX. CODE CRIM. PROC. art. 38.22, § 6 (Vernon Supp. 2015) (emphasis added); Urias v. State,
155 S.W.3d 141, 142 (Tex. Crim. App. 2005) (“It is well settled that Article 38.22, § 6 ‘is
mandatory in its language and that it requires a trial court to file its findings of fact and
conclusions of law’” without regard to whether defendant objects to their absence). It is not
necessary that the findings be made “with minute specificity as to every alleged and hypothetical
possibility for physical or mental coercion. But the trial court must make findings of fact and
conclusions of law adequate to provide an appellate court with a basis upon which to review the
trial court’s application of the law to the facts.” Wicker v. State, 740 S.W.2d 779, 783 (Tex.
Crim. App. 1987).
A trial court may satisfy the requirements of article 38.22 by dictating its findings and
conclusions into a reporter’s record that is included in the appellate record. Mbugua v. State, 312
S.W.3d 657, 668 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Murphy v. State, 112
S.W.3d 592, 601–02 (Tex. Crim. App. 2003)). Here, the parties have not directed us to, and we
have not found, any specific findings or conclusions as to voluntariness of appellant’s statement
in either the clerk’s record or reporter’s record.
When a trial court fails to make findings of fact and conclusions of law in compliance
with article 38.22, section 6, we must abate the appeal and remand the cause to permit
compliance with the statute. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6; Urias, 155
S.W.3d at 142 (remanding to court of appeals with instructions to require compliance); Wicker,
740 S.W.2d at 784.
On October 2, 2015, the Court abated this appeal and remanded the case to the trial court
to enter written findings of fact and conclusions of law, separate and apart from any docket sheet
notations in this case, in conjunction with its denial of appellant’s motion to suppress. We have
received no indication that the trial court entered the required findings of fact and conclusions of
law and have not received a supplemental clerk’s record containing such items.
Accordingly, the trial court is again ORDERED to enter written findings of fact and
conclusions of law, separate and apart from any docket sheet notations in this case, in
conjunction with its denial of appellant’s motion to suppress. The trial court may review the
reporter’s record to refresh its recollection of the reasons for its rulings on the issue of
voluntariness. Wicker, 740 S.W.2d at 784. The trial court shall cause its findings and
conclusions to be filed with the trial court clerk within 10 days of the date of this order. We
further order the trial court clerk to file a supplemental clerk’s record containing the trial court’s
findings of fact and conclusions of law with this Court within 15 days of the date of this order.
This appeal remains abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket without further order
of the Court when the supplemental clerk’s record is filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Terry Jennings
 Acting individually  Acting for the Court
Date: November 24, 2015