Jose Fernando Cervantes v. State ( 2014 )

NUMBER 13-14-00134-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE FERNANDO CERVANTES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court
of Hidalgo County, Texas.
ORDER OF ABATEMENT
Before Chief Justice Valdez and Justices Garza and Longoria
Order Per Curiam
Appellant, Jose Fernando Cervantes, was convicted of murder, a first-degree
felony, see TEX. PENAL CODE ANN. § 19.02(b)(1) (West, Westlaw through 2013 3d C.S.),
and was sentenced to thirty years’ imprisonment. He argues on appeal that the trial court
erred by, among other things, failing to provide findings of fact and conclusions of law in
connection with a motion to suppress custodial statements made to law enforcement. In
response to this issue, the State contends that Cervantes failed to preserve the issue for
appeal because defense counsel did not request findings of fact and conclusions of law
in the trial court.
Article 38.22, section 6 of the Texas Code of Criminal Procedure states in relevant
part:
In all cases where a question is raised as to the voluntariness of a statement
of an accused, the court must make an independent finding in the absence
of the jury as to whether the statement was made under voluntary
conditions. If the 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. ANN. art. 38.22, § 6 (West, Westlaw through 2013 3d C.S.). Here,
though Cervantes raised the issue of whether his police statements were involuntarily
made, defense counsel did not request findings and conclusions, nor did counsel object
at any time to the trial court regarding the absence of findings and conclusions. However,
the Texas Court of Criminal Appeals has held that the entry of such findings and
conclusions are mandatory even when “neither party requested written findings at any
level of the proceedings, and the issue was not considered by the lower court . . . .”
Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013).1 Section 6 of article
38.22 is “‘mandatory in its language and . . . it requires a trial court to file its findings of
1 Vasquez overruled the prior rule, established in State v. Terrazas, that “[t]he ‘right’ to findings and
conclusions [under section 6, article 38.22] is a statutory ‘right’ which is forfeited by a party’s failure to insist
upon its implementation.” 4 S.W.3d 720, 728 (Tex. Crim. App. 1999); accord Mar v. State, No. 13-08-
00731-CR, 2011 WL 61834, at *9 (Tex. App.—Corpus Christi Jan. 6, 2011, no pet.) (mem. op., not
designated for publication) (finding appellant forfeited issue regarding absence of findings and conclusions
on motion suppress ruling because record contained neither a request for findings and conclusions nor an
objection to their absence); Scott v. State, No. 13-08-00315-CR, 2009 WL 5730570, at *6 (Tex. App.—
Corpus Christi Aug. 13, 2009, pet. ref’d) (mem. op., not designated for publication) (same).
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fact and conclusions of law regarding the voluntariness of a confession whether or not
the defendant objects to the absence of such omitted filing.’” Id. at 920 n.14.
In light of the Texas Court of Criminal Appeals’ holding in Vasquez, we hereby
ABATE the appeal and REMAND the cause to the trial court for entry of findings of fact
and conclusions of law pursuant to article 38.22, section 6 of the Texas Code of Criminal
Procedure. The trial court shall make its findings and conclusions, as ordered herein,
within THIRTY days from the date of this order. Furthermore, the trial court shall cause
a supplemental clerk’s record containing the findings and conclusions to be filed with the
Clerk of this Court within SIXTY days from the date of this order. The appeal will be
reinstated upon receipt of the supplemental clerk’s record and upon further order of this
Court.
PER CURIAM
Do Not Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
5th day of September, 2014.
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