Timothy Dynell George v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Timothy Dynell George v. The State of Texas
Appellate case number: 01-15-00128-CR
Trial court case number: 1431234
Trial court: 185th Judicial District Court of Harris County
Appellant, Timothy Dynell George, filed a notice of appeal on February 6, 2015,
only from the trial court’s denial of his motion to suppress evidence obtained by unlawful
search and seizure, signed on January 7, 2015. After a review of the clerk’s record, it
appears that the State had filed a notice of intent in the trial court, on November 25, 2014,
to use all evidence obtained from the appellant, including his statement. Although the
appellant’s motion, filed in the trial court on December 19, 2014, mainly sought to
suppress any physical evidence, his motion also sought to suppress any of his statements
or admissions, whether oral or written, claiming that they were involuntary. However, it
appears that neither party requested findings and the trial court failed to submit findings
of fact and conclusions of law on the voluntariness of appellant’s statements, if any,
which are required by Texas Code of Criminal Procedure Article 38.22.
Article 38.22, section 6 of the Texas Code of Criminal Procedure requires the trial
court to make written factual findings and conclusions of law as to whether a challenged
statement was made voluntarily, even if the appellant did not request them or object to
their absence. TEX. CODE CRIM. APP. PROC. ANN. art. 38.22 § 6 (West Supp. 2014); see
Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013) (vacating and remanding
for the trial court to make findings and conclusions regarding the voluntariness of the
appellant’s statements, even though neither party requested them). This statute makes
written findings mandatory in all cases where a question is raised as to the voluntariness
of a statement of an accused, and the proper procedure to correct the error is to abate and
direct the trial court to make the written factual findings and conclusions of law. See
TEX. R. APP. P. 44.4(b); Vasquez, 411 S.W.3d at 920.
Accordingly, we sua sponte abate the appeal and remand for the trial court to
enter written findings of fact and conclusions of law, separate and apart from any docket
sheet notations in this case, on the voluntariness of appellant’s statements and
admissions, if any, as well as whether any physical evidence seized from the appellant
was seized in violation of Article 38.23. See Vasquez, 411 S.W.3d at 920 (listing the
criteria for the trial court to determine voluntariness on remand); TEX. CODE CRIM. APP.
PROC. ANN. art. 38.23(a) (West Supp. 2014). The trial court shall make the appropriate
findings and conclusions and shall cause them to be filed with the trial court clerk within
30 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 30 days of the date of this order.
Furthermore, because the appellant failed to timely respond to the letter from the
Clerk of this Court, sent on March 18, 2015, notifying his counsel that the reporter’s
record was not timely filed because he had failed to request or pay for it, this Court may
set the briefing schedule after this case is reinstated without the reporter’s record. This
Court may require appellant to file his brief and may consider and decide those issues or
points that do not require a reporter’s record for a decision. See TEX. R. APP. P.
37.3(c)(2).
This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. This appeal will be reinstated on this Court’s active docket after a
supplemental clerk’s record that complies with this Order is filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Laura Carter Higley
 Acting individually
Date: June 23, 2015
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