Shakeitha Cartwright v. State ( 2015 )

ACCEPTED
12-14-00044-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/21/2015 11:17:44 AM
Pam Estes
CLERK
12-14-00044-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS OF TEXAS TYLER, TEXAS
9/21/2015 11:17:44 AM
TYLER, TEXAS PAM ESTES
Clerk
SHAKEITHA CARTWRIGHT
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause No. 13-CR-18,695
In the 273rd Judicial District Court of Shelby County, Texas
STATE’S OPPOSITION TO MOTION FOR REHEARING and
OPPOSITION TO MOTION TO ABATE APPEAL
123rd JUDICIAL DISTRICT ATTORNEY’S OFFICE
Kenneth Florence, District Attorney
Lead Counsel
State Bar No. 00790698
200 San Augustine Street - Suite 12
Center, Texas 75935
(936) 598-2489
(936) 598-4106 Fax
The State hereby opposes the Motion for Rehearing and Motion to Abate
Appeal.
Motion for Rehearing
Appellant has filed a Motion for Rehearing arguing that this Court failed to
consider the case Vasquez v. State, 411 S.W.3d 918 (Tex.Crim.App. 2013). This
Court has ruled properly in denying the Motion to Abate Appeal, and Vasquez
supports this Court’s prior ruling.
The legal principles quoted by Appellant from the Vasquez case support the
denial. (Quoted language at P.2-3 of Appellant’s currently pending motion.)
First, the trial court did enter a written order. (Supplemental Clerk’s Record
(filed April 17, 2015)(“Nunc Pro Tunc Findings of Fact and Conclusion [sic] of
Law Regarding Voluntariness of Written Confession and Oral Confession
Pursuant to Jackson v. Denno and TEX. CODE CRIM. PROC., ART. 38.22, SEC. 6").
Second, the trial judge did in fact actually issue written findings of fact and
conclusions of law at the time of trial, they simply were not properly filed into the
clerk’s record. Id. at ¶2. Vasquez has been satisfied.
Appellant then further re-urges the issues he raised in his original motion.
Therefore, the State will detail it’s opposition on the merits below.
Motion to Abate Appeal
The argument that the trial judge could not read and rely on the prior
recorded testimony at the initial Jackson v. Denno (art. 38.22, TEX. CODE CRIM
PROC.) hearing was waived because defense trial counsel expressly consented to
the trial judge reading the prior record to make his voluntariness determination.
(RR, V. 4, P. 144-146 (agreement of parties); RR, V. 5, P. 9-10(defense attorney
inquiry to Court about whether the Court had finished reading prior Jackson v.
Denno record); RR, V. 5, P. 193(agreement of parties)).
Additionally, some new testimonial evidence was presented at the continued
hearing, not simply a cold record (RR., V. 5, P. 193-207 (Det. Nicole Faulkner
testifying). Portions of the video confessions germane to voluntariness were also
played. Id.
Finally, the Judge did in fact review the complained of video testimony and
written confession and did in fact timely sign written findings of fact and
conclusions of law as to both written and recorded confessions....the document just
did not make it into the written record due to a ministerial error. The trial judge
signed and filed written findings of fact and conclusions of law Nunc Pro Tunc,
identical to the original findings and conclusions, which relate back to the time
when the original findings and conclusions were made and were in fact originally
executed. (See Supplemental Clerk’s Record (filed April 17, 2015)(Nunc Pro Tunc
at ¶2, passim); see also, RR, V. 5, P. 201, 205, 207(Judge’s in-court ruling).
Undersigned counsel also independently recalls Judge Mitchell signing Findings
and Conclusions at the time of trial.
Finally, in the Nunc Nunc Pro Tunc Findings and Conclusions the trial judge
noted that after watching all of the video confession and hearing all of the trial
testimony, nothing would have changed his opinion that the written and recorded
confessions were voluntary. Id. at ¶3.
Accordingly, no remand is necessary. Clearly, another evidentiary hearing is
not warranted under the unique circumstances of this case...the judge has already
heard all of the trial evidence and testimony and made a written ruling at the time of
trial...it just did not make it into the record somehow. The Nunc Pro Tunc Findings
of Fact and Conclusions of Law before the Court relate back to the filing date at the
time of trial, so therefore Vasquez v. State, 411 S.W.3d 918 (Tex.Crim.App. 2013)
has been satisfied and does not mandate a remand in this particular case.
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PRAYER
WHEREFORE for the reasons set forth above, Appellant’s Motion for Rehearing
regarding the Motion to Abate Appeal should be DENIED. The Motion to Abate
Appeal was properly denied by this Court.
Respectfully submitted,
123rd JUDICIAL DISTRICT ATTORNEY
/S/ Kenneth B. Florence
STATE’S ATTORNEY TB#00790698
200 San Augustine Street ~ Suite 12
Center, Texas 75935
(936) 598-2489 Fax (936) 598-4106
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the State’s Opposition to
Motion for Rehearing and Opposition to Motion to Abate Appeal, as related above,
was served upon, Seth Johnson, Attorney for Appellant, via e-file, on this 21st day
of September 2015.
/S/ Kenneth B. Florence