Virna Catherine Fender v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00333-CR
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VIRNA CATHERINE FENDER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 19-338600
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ORDER
In a series of motions and notices filed after the parties filed their briefs for
the appeal, the appellant, Virna Catherine Fender, asked this Court: (1) to strike the
State’s brief as a fraud upon the court because the brief incorrectly stated that the
case was heard before a jury; (2) to allow her to “Amend the appeal”, which we
interpret to be a request to correct briefing deficiencies; (3) to take judicial notice of
her appeal from an administrative license suspension; and (4) to direct the trial court
to issue findings of fact and conclusions of law regarding her motion to suppress
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evidence. The State amended its brief but did not file a response to Fender’s other
motions.
In the interest of justice, we abate the appeal and remand the case to the trial
court for entry of written findings of fact and conclusions of law on the trial court’s
essential findings on Fender’s motion to suppress evidence. See State v. Cullen, 195
S.W.3d 696, 698-99 (Tex. Crim. App. 2006). A supplemental clerk’s record
containing the trial court’s findings of fact and conclusions of law shall be filed with
the Court of Appeals on or before September 10, 2020. The appeal will be reinstated
without further order of this Court when the supplemental clerk’s record is filed. The
parties may file supplemental briefs that address the trial court’s findings of fact and
conclusions of law. See Tex. R. App. P. 38.7. The appellant’s supplemental brief is
due thirty days after the supplemental clerk’s record is filed. The State’s
supplemental brief is due thirty days after the appellant files her supplemental brief.
This Court will take judicial notice of Appeal Number 09-19-00338-CV, but the
clerk’s record filed in that appeal is not a part of and will not be considered as the
record of this appeal. See State v. Clammer, 999 S.W.2d 903, 906 (Tex. App.—
Amarillo 1999, pet. ref’d) (the appellate court reviews the trial court’s judgment
based upon the evidence before the trial court at the time it made the decision
complained of.). All other requested pre-submission relief is denied.
ORDER ENTERED August 11, 2020.
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PER CURIAM
Before McKeithen, C.J., Kreger and Johnson, JJ.
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