State v. Tina Froid ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-340-CR
THE STATE OF TEXAS APPELLANT
V.
TINA FROID APPELLEE
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FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY
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OPINION
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Introduction
The State appeals the trial court’s order suppressing the evidence
obtained during a stop by police while appellee was driving. The State
contends that the trial court’s findings of fact and conclusions of law are
insufficient to comport with the dictates of State v. Cullen and requests that we
remand this appeal for additional findings and conclusions. 195 S.W.3d 696
(Tex. Crim. App. 2006). We decline this request and affirm the order of the
trial court.
Background Facts
An Arlington police officer followed appellee as she left a bar at about
5:30 one evening turning onto East Abram Street. At the suppression hearing,
the officer and appellee both testified, and the trial court took its ruling under
advisement because it wanted an opportunity to review the videotape from the
officer’s dashboard camera, which captured the officer following appellee and
stopping her. The officer testified to some of appellee’s driving conduct that
led him to believe that she was possibly driving while intoxicated, including the
following: some swerving within her lane, nearly hitting the curb, and delaying
in stopping for the officer. Appellee testified to the many potholes in the street
and her need to avoid running into them, along with the narrowness of the
street and curb. At the suppression hearing, the State and defense argued over
whether the officer had reasonable suspicion to make the stop. See Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).
Trial Court Findings
After the suppression hearing, and presumably after the review of the
video from the officer’s dashboard camera, the trial court entered the following
findings, conclusions, and order:
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After reviewing the evidence and judging the credibility of the
witnesses, the Court finds that the police officer lacked reasonable
suspicion or probable cause to stop the Defendant’s vehicle. The
Court finds the Defendant was not stopped pursuant to any
warrant. The Court finds that the Defendant did not commit any
law violations prior to the stopping of her vehicle by the police
officer. Therefore, all evidence gained after the stopping of the
vehicle is not admissible. The Defense motion to suppress is
granted.
Sole Point on Appeal
The State appeals from this order, contending that the trial court failed
to “convey specific findings of fact and conclusions of law to provide the State
or this Court with sufficient information in order to prosecute a meaningful
appeal or conduct a meaningful review of the trial court’s findings.”
The Law: State v. Cullen
More specifically, the State contends that the trial court’s order does not
comply with the Court of Criminal Appeals’s mandate set forth in Cullen, in
which that court held that a trial court must grant a party’s timely request for
findings of fact and conclusions of law related to its ruling on a motion to
suppress. 195 S.W.3d at 698. The court agreed with Judge Womack’s
concurring opinion in Ross, in which she said appellate courts should not be
forced to ”make unjustified and incorrect assumptions” regarding trial court
rulings on motions to suppress. Id.; State v. Ross, 32 S.W.3d 853, 859 (Tex.
Crim. App. 2000) (Womack, J. concurring). The Cullen court further held that
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a trial court should make essential 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.” Cullen,195 S.W.3d at
699. The court analogized to code of criminal procedure article 38.22, section
six, which requires a trial court to set forth the basis of its order of admissibility
regarding the voluntariness of an accused’s statement. Id. (citing Tex. Code
Crim. Proc. Ann. art. 38.22 § 6 (Vernon 2008)). Furthermore, the court cited
with approval and applied rule of civil procedure 297, which requires a trial
court to file findings of fact and conclusions of law within twenty days of a
timely filed request. Id. (citing Tex. R. Civ. P. 297). The Cullen court also
discussed the appropriate solution, citing appellate rule 44.4, which directs the
court of appeals to direct the trial court to correct remedial error when the trial
court can. Id. at 698 (citing Tex. R. App. P. 44.4). The court remanded the
case to the court of appeals so that the intermediate court could order the trial
court to enter findings of fact and conclusions of law. Id. at 700.
Analysis
Here, however, we have a different fact pattern. The trial court granted
the motion to suppress on September 10, 2008. The State timely filed a
motion requesting findings of fact and conclusions of law. The trial judge filed
written findings and conclusions in its order granting the defense suppression
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motion, whereas in Cullen, the trial court simply refused to do so. But in this
case, the State is dissatisfied with those findings and conclusions, claiming
they are insufficient and that they do not provide the “essential” findings
required by the Cullen court. The State asks us to now remand this
interlocutory appeal of the suppression order to direct the trial court to file
additional findings of fact and conclusions of law. At oral argument, the State
argued that rules 43.6 and 44.4 authorize, if not mandate, this court to abate
for further findings and conclusions. Tex. R. App. P. 43.6 (authorizing court of
appeals to make appropriate order that law and nature of case require), 44.4
(directing court of appeals to have trial court correct remedial error). We
disagree, especially so in this particular circumstance: the State voiced no
objection to the adequacy of the trial court’s findings of fact or the
appropriateness of its conclusions of law in the trial court.
As a threshold matter, a fundamental prerequisite for preservation of
appellate issues on appeal is the corresponding duty to first ask the trial court
to correct a perceived error before challenging the ruling on appeal. See Tex.
R. App. P. 33.1(a)(1). Only if the trial court refuses to correct its error after
being directed to it, is the error preserved. Webb v. State, 275 S.W.3d 22, 25
(Tex. App.—San Antonio 2008, no pet.); see Mendez v. State, 138 S.W.3d
334, 338 (Tex. Crim. App. 2004); Stephenson v. State, 255 S.W.3d 652, 661
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n. 42 (Tex. App.—Fort Worth 2008, pet. ref’d). Because the State did not first
give the trial court an opportunity to address its concern, it has waived this
complaint on appeal. 1 Sanchez v.State, 120 S.W.3d 359, 365–67 (Tex. Crim.
App. 2003) (for explanation of distinction of types of error). For these reasons,
we deny the State’s request to abate this appeal for entry of additional findings
of fact and conclusions of law. We affirm the order of the trial court.
TERRIE LIVINGSTON
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
PUBLISH
DELIVERED: November 25, 2009
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 We also note that our holding comports with rule of civil procedure
298, which requires any party who desires additional findings of fact and
conclusions of law to file a request for same within ten days of the court’s filing
of its original findings and conclusions. Tex. R. Civ. P. 298. The State did not
timely request additional findings of facts and conclusions of law.
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