COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00501-CR

ROBERT RICHARDSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY

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DISSENTING OPINION

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I write yet again in dissent because, again, this court applies conflicting rules 

of procedure to trial courts’ rulings on motions to suppress, depending on whether 

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

It has been well established that when a trial 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 all 
2

requirements concerning the ruling and the findings of fact and conclusions of law,

1

and the defendant has preserved the complaint for appellate review.2

 But, as in 

State v. Cox,

3 the majority here confuses the criminal rules of procedure with the 

civil rules of procedure. When the State prevails in 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 these 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 legislature 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, 685 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 legislature 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 Appellant’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 signed 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 that the trial court does not enter an order 

granting a motion to suppress until formally signing 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 majority 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, 99–101 (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 when 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, we should hold that 

because there is no written 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.

LEE ANN DAUPHINOT 

JUSTICE

PUBLISH

DELIVERED: April 18, 2013

 8

Id. (citations omitted).

9

Cox, 235 S.W.3d at 285–87 (Dauphinot, J., dissenting).