1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________ NO. 09

- 11

- 00 073

- CR



### _________________
EDSON HEDIVALDO OLVERA

- GARZA SR. , Appellant

V.

THE STATE OF TEXAS , Appellee

________________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 10

- 08

- 09235

- CR

________________________________________________________________________ ORDER
The appellant, Edson Hedivaldo Olvera

- Garza Sr. , has challenged the trial court’s
ruling denying his motion seeking to suppress the oral and written statements he gave to
the police

. One of Olvera ’s issues argues that the trial court erred by failing to make
written findings regarding its ruling on his motion to suppress.
The Code of Criminal Procedure anticipates that a trial court will make written
findings in response to a defendant’s motion challenging the voluntariness of a statement.

See Tex. Co de Crim. Proc. Ann. art. 38.22, § 6 (West 2005). U pon finding that a2

defendant’s statement was made voluntarily , “ 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. ” Id

. At the conclusion of the suppression hearing in Olvera’s case, the trial court stated
the following findings and conclusions on the record:

“the defendant was not in custody at the time that he gave his statement to the police[;]”
“a person is brought into contact with the police, acting only upon a request or urging the police [;] ”

“ there is no threat expressed or implied that a statement w as gonna be taken forcibly[,] when the statement’s taken[,] that the statement is valid[;]”
“the statement was voluntary when it was given based upon the evidence of Detective Haas and of the defendant [;] ” [ and ]

“ [s] o the statement [is] gonna be all owed into evidence.”
These findings address one of the argument s Olvera has made, that he was in
custody before being provided with his Miranda 1 warnings ; however, the findings are not

sufficient to allow an adequate review of each of the issues Olvera has raised in his
appeal

. See State v. Cullen , 195 S.W.3d 696, 698

- 99 (Tex. Crim. App. 2006); Hester v.

State , 535 S.W.2d 354, 356 (Tex. Crim. App. 1976 ). The findings that should be made

1 Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).3

explicit in written findings include those that relate to the factors discussed by the Court
of Criminal Appeals in Dowthitt v. State , including:

w hether and when Olvera was physically deprived of his freedom of action in any significant way, and what objective circumstances the trial court considered in determining whether Olvera’s freedom of movement was restricted to the degree associated with an arrest;

w hether and when a law enforcement officer told Olvera he could leave, or told him that he could not leave;

w hether an d when law enforcement officers created a situation that would have made a reasonable person believe his freedom of movement was signifi cantly restricted, identifying the objective circumstances the trial court considered in mak ing that determination; and

t he point at which the law enforcement officers developed probable cause for Olvera’s arrest, when that knowledge was communicated to Olvera or Olvera communicated evidence of probable cause to the officers, and whether Olvera was told he was free to leav e after that point

. 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) ; see also State v. Ortiz , No. PD

- 1181

- 11,
2012 WL 5348503, at *3 (Tex. Crim. App. Oct. 31, 2012)

. The trial court’s findings are also insufficient to allow adequate review of Olvera’s

claim that the officers deliberately delayed providing him with a Miranda warning. See
Missouri v. Seibert, 542 U.S. 600, 608

- 12 , 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004)
(plurality opinion) ; Carter v. State , 309 S.W.3d 31, 37

- 42 (Tex. Crim. App. 2010)

. The
trial court’s written finding s should make explicit its findings regarding :

w hether Detective Haas deliberately employed a “question first, warn later” approach , identifying the objective circumstances the trial court considered in mak ing that determination ;4 w hether Detective Echols deliberately employed a “question first, warn later” approach
, identifying the objective circumstances the trial court considered in mak ing that determination ; and

w h ether law enforcement officers employed an y curative measures to protect Olvera’s Fifth Amendment rights before taking Olvera’s written statement , identifying the objective circumstances the trial court considered in mak ing that determination

. It is, therefore, ORDERED that the case is remanded to the trial court to allow the

trial court to make the written findings of fact and conclusions of law necessary to

resolve Olvera’s appellate issues . In addition to the trial court’s findings on the iss ues that

we have identified , the trial court may make such other findings as it finds are proper.

We abate t he appeal while the case is before the trial court. The trial court’s
findings and conclusions must be reduced to writing and filed in a supplement al clerk’s
record within thirty days. The appeal will be reinstated without further order of the Court
when the supplemental clerk’s record is filed.
The appellant may file a supplemental brief addressing the trial court’s findings.
The appellant’s supple mental brief is due thirty days after the supplemental record is
filed. If the appellant files a supplemental brief, the State may file a supplemental brief in
response, due thirty days after the appellant files his supplemental brief.

ORDER ENTERED Decemb er 1 3 , 2012.

PER CURIAM
Before Gaultney, Kreger, and Horton, JJ.