TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00230-CR

The State of Texas, Appellant

v.

Dustin Grier Hartley, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY

NO. 2020CR0749, THE HONORABLE RANDAL C. GRAY, JUDGE PRESIDING

O R D E R A N D M E M O R A N D U M O P I N I O N

PER CURIAM

The State of Texas appeals from an order of the trial court granting a motion to 

suppress filed by appellee Dustin Grier Hartley, who was arrested for the offense of driving 

while intoxicated following a traffic stop. The trial court granted the motion based on its 

conclusion that the traffic stop was unlawful and not supported by reasonable suspicion. Upon 

the State’s request, the trial court made written findings of fact and conclusions of law, and it 

later made additional findings and conclusions after this Court abated the appeal on the State’s 

motion. See State v. Hartley, No. 03-21-00230-CR, 2021 WL 2483790 (Tex. App.—Austin 

June 18, 2021) (per curiam order) (mem. op., not designated for publication). For the following 

reasons, we must again abate the appeal and remand the case to the trial court for

additional findings.
2

“‘[U]pon the request of the losing party on a motion to suppress evidence, the trial

court shall state its essential findings.’” State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim. App. 2013) 

(quoting State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011)). “‘[E]ssential findings’ mean 

‘findings of fact and conclusions of law adequate to provide an appellate court with a basis upon 

which to review the trial court’s application of the law to the facts.’” Id. An appellate court may not 

“presume factual findings that may be dispositive in a case when a trial court’s findings are an 

inadequate basis upon which to make a legal conclusion and when those findings have been properly 

requested by a losing party.” Id. (citing Elias, 339 S.W.3d at 674; State v. Mendoza, 

365 S.W.3d 666, 673 (Tex. Crim. App. 2012); State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. 

App. 2006)). Instead, “an appellate court must abate for additional findings of fact when a party has 

requested findings of fact and the findings that are made by a trial court are so incomplete that an 

appellate court is unable to make a legal determination.” Id. (citing Elias, 339 S.W.3d at 674; 

Mendoza, 365 S.W.3d at 673; Cullen, 195 S.W.3d at 699). “This requirement assures that appellate 

resolution of the suppression issue ‘is based on the reality of what happened [at the trial court level] 

rather than on [appellate] assumptions that may be entirely fictitious.’” Elias, 339 S.W.3d at 674 

(quoting Cullen, 195 S.W.3d at 699). “[C]ourts of appeals should not be forced to make assumptions 

(or outright guesses) about a trial court’s ruling on a motion to suppress evidence.” Cullen, 

195 S.W.3d at 698.

In this case, the issue is whether the arresting officer had reasonable suspicion to 

initiate a traffic stop on Hartley. The officer who initiated the stop did not testify at the 

suppression hearing.

1 Consequently, the State relied on other evidence to prove reasonable 

suspicion, specifically an audio recording of a 911 call in which the caller reported that he had 

1 Instead, the State called an officer who did not observe the stop but arrived at the scene 

shortly after the stop had been made. This officer was the sole witness to testify at the hearing.
3

observed Hartley driving recklessly on the road (State’s Exhibit 1), and police video recordings 

of the traffic stop and arrest of Hartley (State’s Exhibits 2, 3, and 4). However, the record

reflects that the State did not play these exhibits in their entirety at the hearing, which was 

conducted via Zoom, and it is unclear which portions of the recordings the trial court considered

when making its findings.2 Although the prosecutor at the hearing specified the times when she 

started and stopped the recordings,

3 the recordings were admitted in their entirety, and some of 

the trial court’s findings suggest that it might have considered portions of the recordings that 

were not played at the hearing.

To avoid having to make assumptions as to which portions of the recordings the 

trial court considered, we must abate this appeal a second time and remand for additional 

findings related to the recordings. On remand, the trial court should specify, using time markers,

which portions of each recording it considered. This includes State’s Exhibit 1, the 911 call. 

Although the trial court already made some findings related to the call when the appeal was 

abated the first time, it did not specify which portions of State’s Exhibit 1 it considered in 

making those findings. If it considered State’s Exhibit 1 (or any other exhibit) in its entirety, the 

trial court should expressly state that in its findings.

2 The trial court granted the motion to suppress at the conclusion of the hearing but made 

its findings of fact and conclusions of law later.

3 At the hearing, the prosecutor stated that she started playing State’s Exhibit 1 at “zero 

minutes and zero seconds” and stopped it at the 1:07 minute mark. She started playing State’s 

Exhibit 2 at the 7:00 minute mark and stopped it at the 10:01 minute mark. She started playing 

State’s Exhibit 3 at the 13:30 minute mark, paused it at the 15:39 minute mark, resumed it at the 

18:59 minute mark, and stopped it at the 21:55 minute mark. It is unclear from the record 

precisely when the prosecutor began playing State’s Exhibit 4, but she stated that she was 

playing the recording for the purpose of showing Hartley’s performance on the walk-and-turn 

test, which began at approximately the 15:00 minute mark. The prosecutor stated that she 

stopped playing State’s Exhibit 4 at the 17:59 minute mark.
4

We abate the appeal and remand the case to the trial court to make additional fact 

findings and conclusions of law consistent with this order. See Elias, 339 S.W.3d at 676-77; see 

also Tex. R. App. 44.4. A supplemental clerk’s record containing the additional findings shall be 

filed with this Court by April 8, 2022. This appeal will be reinstated after the supplemental 

clerk’s record is filed.

Before Justices Goodwin, Baker, and Triana

Abated and Remanded

Filed: March 9, 2022

Do Not Publish