Lola Danielle Cherry v. State ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00080-CR
LOLA DANIELLE CHERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court No. 27792
Before Morriss, C.J., Carter and Moseley, JJ.
ORDER
Lola Danielle Cherry has appealed her conviction for attempted capital murder. At trial,
Cherry attempted to demonstrate that she was not acting voluntarily when she gave investigators
two inculpatory statements—one oral, the other written—about two months after the events
alleged in the indictment. On appeal, Cherry contends her statements were not made voluntarily
and thus should have been excluded from evidence.
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 on 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 2005). The requirements of Section 6 are
mandatory. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004). Section 6’s required
order and finding must be made as to each challenged statement, regardless of whether the
statement was given in a custodial or a noncustodial setting. State v. Terrazas, 4 S.W.3d 720,
727 (Tex. Crim. App. 1999); see also Oursbourn v. State, 259 S.W.3d 159, 171 (Tex. Crim. App.
2008).
Because the requirements of Article 38.22, Section 6 of the Texas Code of Criminal
Procedure have not been met in this case, we abate this appeal and remand it to the trial court.
See TEX. R. APP. P. 44.4. The trial court is instructed to enter an order stating its conclusion as to
whether Cherry’s written and oral statements were voluntarily made and, if so, detailing the
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specific findings of fact on which those conclusions are based. See TEX. CODE CRIM. PROC.
ANN. art. 38.22, § 6.
The order shall be filed with this Court in the form of a supplemental clerk’s record
within twenty-one days of the date of this order. The abatement will terminate, and this Court’s
jurisdiction will resume, on the filing of the supplemental clerk’s record with those findings and
conclusions. All appellate timetables are hereby stayed and will resume on our receipt of that
supplemental clerk’s record.
IT IS SO ORDERED.
BY THE COURT
Date: August 6, 2013
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