Bradley Alan Depoy v. State ( 2014 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Bradley Alan Depoy v. The State of Texas
Appellate case number: 01-13-00288-CR
Trial court case number: 12-277402
Trial court: County Court of Montgomery County
Appellant, Bradley Alan Depoy, appeals from the trial court’s denial of his motion to
suppress his oral statements “made at the scene” to law enforcement, and his “Motion for Video
Redactions,” seeking to suppress the “oral questioning and interview that begins at 11:49 and
ends at 16:23” of the videotape admitted at trial as State’s Exhibit 3A. He asserts that his
statements “were taken without the safeguards required by and in violation” of Texas Code of
Criminal Procedure article 38.22 and “were involuntary” and “coerced.”
The record shows that the trial court held a hearing outside the presence of the jury, at
which the parties litigated the issue of whether appellant was “in custody” at the time he made
the statements at issue to the law enforcement officer in this case. Afterwards, the trial court
signed an “Order on Motion in Limine,” on which a handwritten notation appears, “See Motion
to Suppress/Motion to Redact.” There are no rulings on the Motion to Suppress. The “Motion
for Video Redactions” contains a handwritten notation, “Denied,” apparently pertaining to the
challenged portion of the video beginning at 11:49 and ending at 16:23.
The record does not reflect that the trial court made findings of fact or conclusions of law
related to appellant’s motion to suppress as required. Texas Code of Criminal Procedure article
38.22, section 6, provides in pertinent part:
If [a] 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. art. 38.22, § 6 (Vernon Supp. 2013); Urias v. State, 155 S.W.3d 141,
142 (Tex. Crim. App. 2005) (“It is well settled that Article 38.22, § 6 ‘is mandatory in its
language and that it requires a trial court to file its findings of fact and conclusions of law’”
without regard to whether defendant objects to their absence). It is not necessary that the
findings be made “with minute specificity as to every alleged and hypothetical possibility for
physical or mental coercion. But the trial court must make 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.” Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim. App.
1987).
A trial court may satisfy the requirements of article 38.22 by dictating its findings and
conclusions into a reporter’s record that is included in the appellate record. Mbugua v. State, 312
S.W.3d 657, 668 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Murphy v. State, 112
S.W.3d 592, 601–02 (Tex. Crim. App. 2003)). Here, although the trial court’s apparent ruling
follows extensive argument on these issues, the parties have not directed us to, and we have not
found, any specific findings or conclusions as to voluntariness.
When a trial court fails to make findings of fact and conclusions of law in compliance
with article 38.22, section 6, we must abate the appeal and remand the cause to permit
compliance with the statute. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6; Urias, 155 S.W.3d
at 142 (remanding to court of appeals with instructions to require compliance); Wicker, 740
S.W.2d at 784. Accordingly, we abate the appeal and remand the case 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, in conjunction with its denial of appellant’s motion to suppress. The trial
court may review the reporter’s record to refresh its recollection of the reasons for its rulings on
the issue of voluntariness. Wicker, 740 S.W.2d at 784. The trial court shall cause its findings and
conclusions to be filed with the trial court clerk within 20 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.
This appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket without further order of the
Court when the supplemental clerk’s record is filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Terry Jennings
 Acting individually  Acting for the Court
Date: June 6, 2014