### 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 Dust in Grier Hart ley , who was arrested for the offense of d riving
while into x icated following a traf fic stop

. The trial court granted the motion based on its
conclu sion that the traffic stop was unlawful and not supported by reasonable suspicion

. Upon
the State ’ s request, t he trial court made written findings of fact and conc lus i ons 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 de sig n ated 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 shal l state its es s ential 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 adequat e to provide a n appellate co u rt 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
inade quate basis upon which to m ake 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. C rim. App. 2 006 ) ). 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 l egal deter mination.” 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 le vel]
rath er than on [ap p ellate] 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 suppr ess 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. T he officer who initiated the stop did not testify at the suppression hearing

. 1 Consequent ly , the State r elied 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 w itness to testify at the hearing.3 observed Hartley driving recklessly on the road (State ’ s Exhibit 1) , and police video recordings
of th e 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 ent irety at the hearing , which was conducted via Zoom, and it is unclear which portions of the recordi ngs the trial court considered
when making its findings. 2 Although the prosecutor at the hearing s pecified the times when she started and stopped the recordings , 3 the recordings were admitted in their ent irety, and some of the trial court’s findings sugge st t hat 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 th is appeal a second time and remand for a ddi t ional findings related to the recordings. On remand , the trial court should specify , using time markers , which portions of each recording it considered . Th is includes State ’ s Exhibit 1, the 911 cal l. Although the trial court already made some findin gs r elated 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 sho uld expressly s tate that in its findings

.

2 The trial court granted the motion to suppress at the conclusion of the hearing but made its find ings of fact and conclusions of law later

.
3 At the hearing, t he prosecutor stated that she started playing S tat e’s Ex h ibit 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 m ark , paus e d it at the 15:39 minute mark, resumed it at the 18:59 minute mark, and stoppe d 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 rec ord ing fo r the purpose of showing Hartley’s performance on the walk

- and

- turn test, which b egan 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 W e abate the appeal and remand the ca se 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

- 7 7; see also Tex. R. App. 44.4. A supp lem ent al 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.

B efore Justices Go odwin, Baker , and Triana
Abate d a nd Remanded
Filed: March 9, 2022
Do Not Publish