State v. Tw Lee Nelson ( 2013 )

NUMBER 13-13-00085-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
STATE OF TEXAS, Appellant,
v.
T.W. LEE NELSON, Appellee.
____________________________________________________________
On appeal from the 28th District Court
of Nueces County, Texas.
____________________________________________________________
Order of Abatement
Before Justices Benavides, Perkes, and Longoria
Order Per Curiam
This case is before this Court on the State’s appeal of the trial court’s order
granting appellee’s motion to suppress. See TEX. CODE CRIM. PRO. ANN. art. 44.01(a)(5)
(West Supp. 2011). For the reasons set forth below, we abate.
A. Applicable Law
Upon the timely request of the losing party in a motion to suppress, the trial court is
required to issue 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.”
State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing State v. Cullen, 195
S.W.3d 696, 699 (Tex. Crim. App. 2006)).
B. Standard of Review
We give almost total deference to the trial court’s finding of historical fact so long
as the record supports them, especially when the findings “are based on an evaluation of
credibility and demeanor.” Id. at 673. The Texas Court of Criminal Appeals has
explained that when the trial court’s findings of historical fact are ambiguous, instead of
assuming that the trial court found a certain way, the better course is to remand to the trial
court for supplemental findings of fact. State v. Mendoza, 365 S.W.3d 666, 673 (Tex.
Crim. App. 2012) (“Just as the trial judge was best positioned to evaluate the officer’s
credibility at the hearing, so she is in the best position to clarify her ambiguous factual
findings.”).
C. Discussion
The trial judge found that Nelson was detained at the time Officer Saldana stopped
his patrol vehicle. On appeal, the State challenges this ruling. However, the trial judge
did not articulate the rationale for her ruling. Specifically, she did not explain how Officer
Saldana’s conduct in stopping his patrol vehicle caused Nelson, a pedestrian who was
walking on a sidewalk, to be detained.
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We note that “a person has been seized when a reasonable person in his position
would believe he is not free to leave.” Johnson v. State, 912 S.W.2d 227, 234 (Tex.
Crim. App. 1995) (en banc). “A show of authority, without an application of physical
force, to which a suspect does not yield is not a seizure under the Fourth Amendment.”
Id. “[A] person has not been seized until he has yielded to a law enforcement officer's
show of authority or when officers physically limit his movement.” Id.
With the foregoing in mind, we respectfully request that the trial judge issue
supplemental findings of fact and conclusions of law to clarify the basis for her ruling with
respect to how and when Officer Saldana detained Nelson. In doing so, we recognize
that the trial judge heard conflicting testimony from Officer Saldana and Nelson about
what happened on the night in question.
For instance, Officer Saldana testified that he stopped his patrol vehicle—and with
his window rolled down—merely asked Nelson the question, “Hey man, you okay?” If
the trial judge accepted this version of events, it is unclear how a detention could have
been effectuated, unless the judge found that Nelson submitted to the officer’s authority
because the officer made such a showing of authority that, given the totality of the
circumstances, a reasonable person in Nelson’s position would believe he is not free to
leave. But again, it is unclear how Officer Saldana made such a showing or if Nelson
yielded to it. However, we recognize that the trial judge did not necessarily accept
Officer Saldana’s testimony—specifically, that he asked the question, “Hey man, you
okay?” She could have found that Officer Saldana said something else or that he asked
a question that was actually more of a command, such as “Hey man, come on up here
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and talk to me up here,” as Officer Saldana also testified that he asked later. Again, the
judge’s findings and conclusions are silent on these points, and the more prudent
approach is to seek clarification from the judge rather than base our decision on
assumptions that could be entirely incorrect.
In contrast, Nelson testified that Officer Saldana exited his patrol vehicle,
approached Nelson, asked him if he was walking home, and then physically limited
Nelson’s movement by grabbing his wrist. If the trial judge accepted this version of
events, then we trust that she will enter findings stating that Officer Saldana physically
limited Nelson’s movement. But we recognize that in this scenario, the detention would
have occurred after Officer Saldana stopped his patrol vehicle, not contemporaneously
with it as the trial court originally found. Again, if the trial judge accepted Nelson’s
version of events in this regard, we trust that she will amend her findings to state that the
detention occurred when Officer Saldana physically limited Nelson’s movement.
We recognize that the trial judge is the sole finder of fact in the hearing on a motion
to suppress. Mendoza, 365 S.W.3d at 669. She is free to accept or reject all or any part
of a witness’s testimony. Id. It is her role to resolve conflicts in the testimony and to
determine the weight to be given to the evidence. Id. We also note that the conflicting
testimony pertains to historical facts, which form the totality of the circumstances. And
we will give virtually total deference to the trial court’s findings of historical facts as long as
the record supports them, especially when they are based on an evaluation of credibility
and demeanor. Elias, 339 S.W.3d at 674. However, we are required to seek
clarification from the trial judge regarding the basis for her ruling since the rationale is
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ambiguous or unclear, the evidence was conflicting, and we are uncertain about whether
the judge found that the detention occurred when Officer Saldana stopped his patrol
vehicle or subsequently, after other events occurred.
Accordingly, we abate the case and remand to the trial court for the entry of
supplemental findings and conclusions on these issues. See TEX. R. APP. P. 44.4(b).
The supplemental findings and conclusions should be included in a supplemental clerk’s
record and filed with this Court within thirty days of the date of this order. If the judge
cannot comply with this order within the time specified, we respectfully request that she
advise this Court regarding the amount of additional time needed to comply.
It is so ORDERED
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of November, 2013.
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