Shakeitha Cartwright v. State ( 2015 )

ACCEPTED
12-14-00044-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
2/16/2015 11:41:41 AM
CATHY LUSK
CLERK
______________________________________________________________________
In The Twelfth Court Of Appeals
FILED IN
Tyler, Texas 12th COURT OF APPEALS
______________________________________________________________________
TYLER, TEXAS
2/16/2015 11:41:41 AM
No. 12-14-00044-CR CATHY S. LUSK
Clerk
Shakeitha Cartwright, Appellant,
v.
The State of Texas, Appellee.
______________________________________________________________________
On Appeal from the 273rd District Court, Shelby County, Texas
Trial Court Cause No. 2013-CR-18695
______________________________________________________________________
APPELLANT’S MOTION TO ABATE APPEAL AND FOR A DE NOVO HEARING IN THE
TRIAL COURT UNDER ART. 38.22, § 6, TEXAS CODE OF CRIMINAL PROCEDURE
______________________________________________________________________
Seth T. Johnson, Tex. Bar No. 24082212
222 North Mound St., Suite #1
Nacogdoches, Texas 75961
Telephone: (936) 205-6775
Fax: (936)715-3022
Email:johnsondefenselaw@gmail.com
Attorney for Appellant
APPELLANT’S MOTION TO ABATE APPEAL AND FOR A DE NOVO HEARING IN THE
TRIAL COURT UNDER ART. 38.22, § 6, TEXAS CODE OF CRIMINAL PROCEDURE
TO THE HONORABLE JUDGES OF THE TWELFTH COURT OF APPEALS:
COMES NOW, the Appellant, Shakeitha Cartwright, by and through her attorney
of record, Seth T. Johnson, and respectfully makes this motion.
Appellant moves this Honorable Court for an order abating this appeal, an order
directing the trial court to hold de novo a hearing under Art. 38.22, § 6, Tex. Code Crim.
Proc., and following said hearing, to prepare and file findings of fact and conclusions of
law as to the voluntariness of Appellant’s statements to law enforcement, and to file in
the Appellate Court a supplemental clerk’s record containing those findings, and for an
order staying the briefing schedule until the foregoing is accomplished.
Only if Appellant’s first motion is denied, then Appellant alternatively moves this
Honorable Court for an order, pursuant to Tex. Rule App. Proc. 34.5(c)(2), directing the
trial court to prepare and file findings of fact and conclusions of law as to the
voluntariness of Appellant’s statements to law enforcement, and to file in the Appellate
Court a supplemental clerk’s record containing those findings, in accordance with Art.
38.22, § 6, Tex. Code Crim. Proc.
In support, Appellant would show as follows:
I. STATEMENT OF FACTS
On May 7, 2013 Appellant’s trial counsel filed a pre-trial “Motion to Suppress
Statement of Defendant”, alleging inter alia, that her statements to law enforcement
were involuntary in violation of Art. 38.22, Tex. Code Crim. Proc., and U.S. Const.
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Amend. 5 & 14. (CR, Vol.1, p. 23)1. Specifically, said motion alleged that the
statements were made under “extreme duress” while Appellant was in a “state of shock”
and “severely depressed”, and that Appellant was mentally incompetent at the time. Id.
Said motion explicitly requested that the trial Judge enter “specific findings of fact and
conclusions of law”. Id. As discussed infra, the reporter’s record shows that the District
Attorney and the Judge both clearly understood that Ms. Cartwright’s was moving to
suppress her statements on the basis of claimed involuntariness and that she was
invoking the procedures outlined in Art. 38.22, § 6, of the Tex. Code of Crim. Proc.
On July 8, 2013 said motion came on to be heard before the Hon. Charles
Dickerson, 123rd District Court. (RR. Vol.3, p.1). The three law enforcement officers
responsible for questioning Ms. Cartwright and taking her statements all testified at the
hearing. (RR. Vol.3, p.11-74). Also, Ms. Cartwright’s videotaped statements (State’s
exhibits no. 1-3) and her written statement (State’s exhibits no. 4) were admitted into
evidence for the limited purposes of the suppression hearing. (RR. Vol.3, p. 3, 7-8, 40).
It was understood by both parties that Judge Dickerson would watch the admitted
videos on his own. (RR.Vol.3, p.9; RR.Vol 5, p.193).
The suppression hearing was then recessed by agreement of the parties without
any findings or rulings made by Judge Dickerson. (RR. Vol.3, p. 74). The reason for
doing so was defense counsel’s stated intent to have defendant evaluated by a mental
health expert and then to present evidence about that evaluation prior to the conclusion
of the suppression hearing. (RR. Vol.3, p. 5). The trial court approved funding for said
evaluation. (RR. Vol.3, p. 79).
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The
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record
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“CR”
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volume
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number.
The
reporter’s
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“RR”
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For unknown reasons, the mental evaluation was not conducted. The
suppression hearing was never resumed at any time prior to the jury trial. Judge
Dickerson did not issue any orders ruling on the voluntariness issue or making findings
of fact or conclusions of law. (RR. Vol.4, p.145).
On January 13, 2014 Defendant’s jury trial commenced. The trial was presided
over by a second judge, the Hon. Charles Mitchell, in the 273rd District Court. (RR.
Vols.4-10). Following jury selection, but prior to the presentation of evidence, there is a
discussion on the record between the parties and Judge Mitchell about the lack of a
ruling under Denno and 38.22 and the need for written findings regarding the
voluntariness of Ms. Cartwright’s statements. (RR. Vol. 4 p.143-146). Based on the
agreement of the parties, Judge Mitchell agreed to read the reporter’s transcript of the
July 8, 2013 suppression hearing. Id.
Trial continued on January 14, 2014. (RR. Vol.5). Out of the presence of the
jury, the suppression hearing was briefly resumed on this date. (Id., p.193-207). Judge
Mitchell indicated for the record that he had read the transcript of the suppression
hearing presided over by Judge Dickerson. (Id., p.195, 202). None of the witnesses
who testified on July 8, 2013 were recalled to testify anew. (Id., p.193-207). Some new
evidence was heard. The state played the portion of each video (State’s Exhibits #1 &
#3) showing the Miranda admonishments. (Id., p.198-199). Judge Mitchell did not
watch the videos in their entirety (approximately 7 hours long) prior to ruling. There is
no evidence in the record that Judge Dickerson watched the videos either, although
they had been tendered for that purpose on July 8, 2013. (Id., p.193) The state also
admitted two Miranda warning cards signed by the Defendant. (Id., p.200). Judge
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Mitchell ruled that the videotaped statements were voluntary and admissible. (Id.,
p.205). No ruling was made at all concerning the voluntariness of Ms. Cartwright’s
written statement. Id. Following the suppression hearing, there was another discussion
on the record about the necessity of written findings and conclusions under 38.22.
Judge Mitchell agreed to file the requisite order, and it appears that one was in the
process of being drafted by the District Attorney. (Id., p.205-207). However the clerk’s
record does not contain any written findings.
II. AUTHORITIES AND ARGUMENT – ABATEMENT OF APPEAL AND REMAND TO
TRIAL COURT FOR DE NOVO 38.22 § 6 HEARING REQUIRED
In most cases, a remand order pursuant to Tex. Rule App. Proc. 34.5(c)2
directing the trial court to prepare and file findings and conclusions as to the
voluntariness of a defendant’s statements will satisfy the mandatory requirements of Art.
38.22 § 6 Tex. Code Crim. Proc.
“When the voluntariness of a statement is challenged, Art. 38.22, § 6, of the
Texas Code of Criminal Procedure requires the trial court to make written fact
findings and conclusions of law as to whether the challenged statement was
made voluntarily. It is well settled that Art. 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 regarding the voluntariness of a confession whether or not the
defendant objects to the absence of such omitted filing." Wicker v. State, 740
S.W.2d 779, 783 (Tex.Crim.App.1987), cert. denied, 485 U.S. 938 (1988). See
also McKittrick v. State, 535 S.W.2d 873, 876 (Tex.Crim.App.1976).
Our review of the record reflects that the trial court did not issue the requisite
written findings of fact and conclusions of law. Thus, the court of appeals made
its decision without the benefit of the requisite findings and conclusions. The
proper procedure is that the trial judge be directed to make the required written
findings of fact and conclusions of law. Wicker, supra. We remand this cause to
the court of appeals with instructions to require compliance by the trial court with
the provisions of Art. 38.22, § 6, and reconsider the voluntariness of Appellant's
confession in light of those findings of fact and conclusions of law.”
Urias v. State, 155 S.W.3d 141 (Tex.Cr.App. 2004).
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But the uncommon procedural history of the instant case presents problems that
cannot be remedied by the ordinary measure. 1) Judge Mitchell’s ruling during trial that
Ms. Cartwright’s statements were voluntary and admissible was based almost entirely
on his reading of a “cold transcript” from the July 8, 2013 hearing. Said transcript
contained all of the testimony from the three officers responsible for questioning Ms.
Cartwright. 2) In making his ruling Judge Mitchell was unable to rely on a ruling from
Judge Dickerson containing findings of fact and conclusions of law concerning
voluntariness. 3) Due to the bifurcated nature of the suppression hearing, neither Judge
actually heard all of the evidence in the form of live testimony. 4) It appears from the
record that neither Judge actually watched the videotaped statements in their entirety
before ruling on their admissibility.
A trial judge may not make statutorily-mandated findings of fact and conclusions
of law based on a reporter's record of a hearing over which he did not preside, unless
the judge who heard the evidence has previously filed findings of fact and conclusions
of law. Garcia v. State, 15 S.W.3d 533, 535-36 (Tex. Crim. App. 2000). The only
remedy in the instant case is a de novo Art. 38.22 § 6 hearing.
“The determination of whether a statement is voluntary is a mixed question of law
and fact, i.e., an application of law to a fact question. . . . In the instant case, the
trial court held a hearing pursuant to Appellant's motion to suppress his statement
on the basis that it was involuntary. At the hearing, testimony was taken from
Abdon Rodriguez, the police officer who took Appellant's confession, and from
Appellant. Thus, the trial court's conclusion that Appellant's statement was
voluntary was based on a direct evaluation of the witnesses' credibility and
demeanor.
Recently, we stated that "appellate courts ... should afford [almost total] deference
to trial courts' rulings on 'application of law to fact questions,' also known as
'mixed questions of law and fact,' if the resolution of those ultimate questions
turns on an evaluation of credibility and demeanor." Guzman v. State, 955
S.W.2d 85, 89 (Tex.Crim.App.1997). This is the proper standard of review
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because the trial judge viewing the witnesses and hearing their testimony is in a
better position to evaluate their credibility and demeanor than is an appellate
judge who must rely on only a written transcript of the hearing. See id. at 87. For
the same reason, it is not appropriate for the second judge in the instant case to
make findings of fact based solely on the written transcript of the initial hearing. It
is inconsistent to restrict an appellate court's review of such findings because it
has nothing to review but a "cold" record, yet allow a trial judge to make such
findings based on nothing but that same "cold" record.
Garcia v. State, 15 S.W.3d 533, 535 (Tex.Cr.App. 2000)(emphasis added).
Almost all of evidence presented concerning the alleged voluntariness of Ms.
Cartwright’s statements was presented during the July 8, 2013 hearing over which
Judge Mitchell did not preside. The only new evidence presented at the second hearing
was that Miranda admonishments were given and that Ms. Cartwright allegedly
understood those rights. The second hearing did not delve into any of the issues
surrounding threats or inducements by officers, the officers demeanor during
questioning, or any other circumstances attendant to the interrogation.
The only exception to the holding of Garcia occurs when the first Judge, who was
in a position to evaluate the testifying witnesses’ credibility, actually issued findings of
fact and conclusions of law that the second Judge could rely on in conjunction with the
reporter’s transcript:
“As this statement makes clear, it was permissible for the second trial judge in
Bass to decline to hold a hearing on the voluntariness of the confession because
such a hearing had already been held and findings of fact and conclusions of law
had previously been entered by the trial judge who presided over that hearing.
That is, both the second trial judge and the appellate court could rely on written
findings of fact and conclusions of law made by the judge who presided over the
hearing and evaluated the credibility and demeanor of the witnesses. In the
instant case, however, an order containing such an evaluation does not exist, and
the only order which does exist was not based on a direct evaluation of the
credibility and demeanor of the witnesses by the judge who made the written
findings.”
Garcia v. State, 15 S.W.3d 533, 536 (Tex.Cr.App. 2000).
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Ms. Cartwright’s case simply does not satisfy that criterion. Therefore, Judge
Mitchell is not in a position to rule on the voluntariness of Ms. Cartwright’s statements
without conducting a de novo 38.22 hearing.
Appellant Cartwright seeks the same relief ordered in the case Dronet v. State,
Appellee No. 09-11-00444-CR, Ct. of App. - Beaumont, May 2, 2013.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant, Shakeitha Cartwright,
prays for an order abating this appeal, an order directing the trial court to hold de novo a
hearing under Art. 38.22, § 6, Tex. Code Crim. Proc., and following said hearing, to
prepare and file findings of fact and conclusions of law as to the voluntariness of
Appellant’s statements to law enforcement, and to file in the Appellate Court a
supplemental clerk’s record containing those findings, and for an order staying the
briefing schedule until the foregoing is accomplished.
Only if Appellant’s first motion is denied, then Appellant alternatively prays for an
order, pursuant to Tex. Rule App. Proc. 34.5(c)(2), directing the trial court to prepare
and file findings of fact and conclusions of law as to the voluntariness of Appellant’s
statements to law enforcement, and to file in the Appellate Court a supplemental clerk’s
record containing those findings, in accordance with Art. 38.22, § 6, Tex. Code Crim.
Proc.
Respectfully submitted,
__________________________
Seth T. Johnson, #24082212
ATTORNEY FOR DEFENDANT
222 North Mound St. #1
Nacogdoches, TX 75961
8
(P) 936-205-6775
(F) 936-715-3022
johnsondefenselaw@gmail.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion, was delivered via
electronic filing service to: Kenneth Florence, Shelby County District Attorney, on
February 16, 2015.
__________________________
Seth T. Johnson, #24082212
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