## COURT OF APPEALS
SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02

- 11

- 00501

- CR

ROBERT RICHARDSON APPELLANT

V.

THE STATE OF TEXAS STATE

----------
FROM COUNTY CRIMINAL COUR T NO. 4 OF DENTON COUNTY

---------- 

### DISSENTING OPINION

---------- I write y et again in dissent because, again, this court applies conflicting rules
of procedure to trial courts’ ruling s on motions to suppress, depending on whether

the trial court rules for the State or for the defense.

It ha s been well established that when a tri al court rules against a defendant
on a motion to suppress, and the trial court rules orally on the record and states its
findings of fact and conclusions of law on the record, the trial court has satisfied all2 requirements concerning the ruling and the fi ndings of fact and conclusions of law
, 1

and t he defendant has preserve d the complaint for appellate review. 2 But, as in

State v. Cox
, 3 the majority here confuses the criminal rules of procedure wit h the
civil rules of procedure. W hen the State prevails i n defeating a defendant’s motion
to suppress, the trial court is not required to enter a separate written order apart

from that dictated into the record. 4 When, however, the defense prevails, someone
must draft a written order, which the trial judge must then sign and file in the record

of the case. 5

The effect of th ese schizophrenic rules of procedure is to substantially extend
the appellate timetable for the State in appealing the ruling on a motion to suppress
in which the defense prevails. Had the leg islature intended for the State’s timeline
for appealing the granting of a motion to suppress to be substantially longer , the
legislature would have provided for a different timeline by statute. As it is, this court

1 See, e.g.
, Gaston v. State , 435 S.W.2d 858, 860 (Tex. Crim. App. 1969); Horn v. State , 699 S.W.2d 714, 716 (Tex. App.

— Fort Worth 1985, no pet.).

2 See Tex. R. Evid. 103(a)(1); Gearing v. State
, 6 85 S.W.2d 326, 329 (Tex. Crim. App. 1985) (op. on reh’g) (“It is settled that when a pre

- trial motion to suppress evidence is overruled, the accused need not subsequently object to the admission of the same evidence at trial in order to preserve error.”), overruled on other grounds by Woods v. State
, 956 S.W.2d 33 (Tex. Crim. App. 1997).

3 235 S.W.3d 283 (Tex. App.

— Fort Worth 2007, no pet.) (en banc majority op.)

.

4 See, e.g.
, Gaston , 435 S.W.2d at 860 ; Horn , 699 S.W.2d at 716.

5 See Cox , 235 S.W.3d at 284

– 85.3 has usurped the province of the legisla ture by creating a measure that extends the
State’s appellate timeline without approval of the legislature by the simple expedient
of applying civil rather than criminal law. 6

I reiterate what I stated in Bracken v. State
, 7
The trial court orally denied Ap pellant’s motions to suppress but did not enter a written order. In his first point, Appellant argues that the trial court erred by denying his motions to suppress. This court has held that there is no appealable ruling on a motion to suppress unless the trial judge enters a written order. As noted in Cox
, “[W]e notified the State of our concern that we lacked jurisdiction over the appeal because there is no appealable written order.” We concluded in the opinion that we indeed lacked jurisdiction based on the absence of a written order.
Following the Rosenbaum court, we interpreted “entered by the court” to mean the signing of a written order. We recognized that Rosenbaum dealt with former appellate rule 41(b)(1), which required an appealable order sign ed by the trial court, and which has been superseded by appellate rule 26.2(b) , which does not. And we did not address the fact that although article 44.01(d) of the code of criminal procedure and appellate rule 26.2(b) speak of a sentence to be appealed, the appellate timetable runs not from the signing of the written judgment and sentence but from the pronouncement of sentence in open court.
By holding in Cox t hat the trial court does not enter an order granting a motion to suppress until formally signin g a written order, even though the ruling and findings of fact and conclusions of law have been pronounced on the record in open court, we allowed the State more than six extra months to perfect its appeal. Yet, in the case now before this court, the majo rity holds that the trial court enters an order denying a motion to suppress when the trial court pronounces its ruling

6 See Getts v. State
, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (quoting Lamie v. U.S. Tr

. , 540 U.S. 526, 542, 124 S. Ct. 1023, 1034 (2004))

.

7 282 S.W. 3d 94, 9 9

– 101 (Tex. App.

— Fort Worth 2009 , pet. ref’d) (Dauphinot, J., dissenting).4 orally. The majority states that the appeal lies because after a trial is concluded, the appellant is appealing from “a final judgment of conviction.” But the majority confuses the criminal rules of procedure with the civil rules of procedure. While the appellate timetable in a civil case runs from the signing of the judgment, the appellate timetable in a criminal case begins to run whe n the sentence is pronounced orally in open court. The judgment may be signed days or even weeks later in a criminal case and has no effect on the appellate timetable.

To remain consistent with the rule of Cox , w e should hold that because there is no writ ten order denying Appellant’s motions to suppress, there is nothing to appeal from the suppression ruling

. . . . The majority, however, holds that when a defendant appeals from a ruling on the motion to suppress, no written order is necessary. 8
Again, as in Bracken , I must respectfully dissent and would hold that we must
be consistent with our ruling in Cox , erroneous though I believe it to be and in direct
conflict with the clear mandate and intent of the legislature, 9 and hold that a trial

court must go to the additional and unnecessary inconvenience of entering a written
order and written findings of fact and conclusions of law apart from those already
entered in the written record when ruling on a motion to suppress, no matter which
side prevails.

LE E ANN DAUPHINOT JUSTICE

PUBLISH

DELIVERED: April 18, 2013

8 Id. (citations omitt ed).

9 Cox , 235 S.W.3d at 285

– 87 (Dauphinot, J., dissenting).