Velez, Manuel ( 2015 )

AP-76,051
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
November 5, 2015 Transmitted 11/5/2015 8:26:01 AM
Accepted 11/5/2015 8:46:54 AM
ABEL ACOSTA
NO. AP-76,051 CLERK
MANUEL VELEZ § IN THE
VS. § COURT OF CRIMINAL APPEALS
STATE OF TEXAS § STATE OF TEXAS
STATE’S MOTION TO PUBLISH
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
The State, by and through its District Attorney, 268th Judicial District, Fort
Bend County, asks this Court to reconsider its decision to not publish its opinion in
the above-referenced case, Velez v. State, No. AP-76,051, 2012 WL 2130890 (Tex.
Crim. App. June 13, 2012).
In Velez, this Court distinguished Garcia v. State, 15 S.W.3d 533, 536 (Tex.
Crim. App. 2000), in which a de novo suppression hearing was ordered because a
judge, other than the judge who heard the hearing, made findings of fact and
conclusions of law on a cold record. Garcia, 15 S.W.3d at 534-35. In Garcia,
testimony was taken from the officer who took Garcia’s confession and from Garcia.
Id. at 535. “Thus, the trial court’s conclusion that [Garcia’s] statement was voluntary
was based on a direct evaluation of the witnesses’ credibility and demeanor.” Id.
In Velez, the judge who held the suppression hearing was succeeded by a new
trial judge. Velez, 2012 WL 2130890, at *13. The new trial judge prepared findings
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and conclusions based on the record of the suppression hearing and the prior judge’s
ruling that the statement was voluntarily made. Id. This Court distinguished Garcia,
“In Garcia, however, we did not specifically address the rare situation that presents
itself here, wherein the prior judge cannot be appointed to prepare findings of fact and
conclusions of law because of unavailability or ineligibility.” Id. This Court took
note of the “peculiar circumstances” of the case:
While the record does not include the reason the presiding judge of the
Fifth Administrative Region did not appoint the prior judge to prepare
findings and conclusions, we take note of the readily available public
information indicating that the prior judge is currently unavailable for
appointment. In such a situation, where the prior judge is unavailable or
ineligible for an appointment, we find it appropriate that there be an
exception to the rule laid out in Garcia. In the event that the judge who
presided over a suppression hearing is unavailable or ineligible to be
appointed to prepare findings of fact and conclusions of law, the current
trial judge may prepare findings and conclusions based on the prior
judge's ruling on the record and the transcript of the suppression hearing
regarding whether a defendant's statement was voluntarily made.
We recognize that the original trial judge, who is uniquely situated to
observe the demeanor of witnesses first-hand, is generally in the best
position to assess the credibility of witnesses. See Ex parte Reed, 271
S.W.3d 698, 727 (Tex. Crim. App. 2008). In this rare circumstance, the
trial judge making the findings and conclusions did not observe the
demeanor of the witnesses because she did not preside over the
suppression hearing. However, she refrained from making any explicit
credibility determinations. Thus, we will accept the new trial judge's
findings and conclusions, and we will review the record to determine if
they are supported by the evidence.
Velez, 2012 WL 2130890, at *13.
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If published, Velez could be cited as precedential authority for allowing a
successor trial judge to make findings of fact and conclusions of law when (1) the
judge who heard the suppression hearing is deceased or otherwise unavailable, and (2)
no explicit credibility determinations need be made.
In Luis Carlos Rodriguez v. State, No. 01-14-00774-CR, the trial judge who
heard the suppression hearing, Hon. Thomas Culver III, passed away in September
2015. Mr. Rodriguez did not testify at the suppression hearing, and the facts are
undisputed. No explicit credibility determinations need be made. The two Velez
factors that would allow a successor judge to make findings and conclusions are met.
However, as shown in the attached motion to abate the appeal, Mr. Rodriguez
is asking for a de novo suppression hearing because Judge Culver is deceased. [Mtn
at 2] The State would like to cite Velez as precedential authority in response.
However, Rule of Appellate Procedure 77.3 provides that this Court’s “[u]npublished
opinions have no precedential value and must not be cited as authority by counsel or
by a court.” Tex. R. App. P. 77.3. The Court’s holding in Velez has not been adopted
by this Court in a published opinion, and thus should not be cited.
This Court’s holding in Velez was applicable in at least one other case, Pavon-
Maldonado v. State, No. 14-13-00944-CR, 2015 WL 1456523, at *4 n.5 (Tex. App.--
Houston [14th Dist.] Mar. 26, 2015, no pet.) (mem. op. not designated for
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publication).
“The Court of Criminal Appeals may, at any time, order that a “do not publish”
notation be changed to “publish.” Tex. R. App. 47.2(b) (albeit with regard to opinions
of the courts of appeals). The State believes that Velez, established an exception to
Garcia that will save scarce state and judicial resources when a defendant has been
afforded a pre-trial hearing on his suppression motion, the trial judge passes away, or
is otherwise unavailable, and the facts adduced at the suppression hearing are
undisputed and no explicit credibility determinations need be made.
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WHEREFORE, PREMISES CONSIDERED, the State asks this Court to grant
its motion to publish that part of its opinion in this cause addressing Point of Error
Ten so that the opinion may be cited for its precedential value.
Respectfully submitted,
John F. Healey, Jr.
SBOT # 09328300
District Attorney, 268th Judicial District
Fort Bend County, Texas
/s/ Gail Kikawa McConnell
Gail Kikawa McConnell
SBOT # 11395400
Assistant District Attorney
301 Jackson Street, Room 101
Fort Bend County, Texas 77469
(281) 238-3205 / (281) 238-3340 (fax)
Gail.McConnell@fortbendcountytx.gov
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CERTIFICATE OF SERVICE
I hereby certify that on November 5, 2015, a copy of the State's motion to
publish was served on :
L.J. Rabb, Assistant District Attorney, Cameron County, by e-service or email
;
Brian W. Stull, Attorney for Manuel Velez, by first class mail, return receipt requested
# 7013 0600 0002 2111 7188, 201 W. Main St, Ste 402, Durham, N.C. 27701-3228;
Mr. Stephen Doggett, Attorney for Louis Carlos Rodriguez, by e-service or email
;
Ms. Lisa McMinn, State Prosecuting Attorney, by e-service or email,

/s/ Gail Kikawa McConnell
Gail Kikawa McConnell
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Velez v. State
Point of Error Ten