NO. AP-76,051 MANUEL VELEZ § IN THE VS. § COURT OF CRIMINAL APPEALS STATE OF TEXAS § STATE OF TEXAS STATE’S MOTION TO PUBLISH TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: The State, by and through its District Attorney, 268th Judicial District, Fort Bend County, asks this Court to reconsid er its decision to not publish its opinion in the above-referenced case, Velez v. State, No. AP-76,051, 2012 WL 2130890 (Tex. Crim. App. June 13, 2012). In Velez , this Court distinguished Garcia v. State , 15 S.W.3d 533, 536 (Tex. Crim. App. 2000), in which a de novo suppression hearing was ordered because a judge, other than the judge who heard th e hearing, made findings of fact and conclusions of law on a cold record. Garcia , 15 S.W.3d at 534-35. In Garcia , testimony was taken from the officer who t ook Garcia’s confessi on and from Garcia. Id. at 535. “Thus, the trial c ourt’s conclusion that [Garcia’s] statement was voluntary was based on a direct evaluation of the witnesses’ credibility and demeanor.” Id. In Velez , the judge who held the suppression hearing was succeeded by a new trial judge. Velez , 2012 WL 2130890, at *13. The new trial judge prepared findings

1 AP-76,051 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 11/5/2015 8:26:01 AM Accepted 11/5/2015 8:46:54 AM

ABEL ACOSTA CLERKand conclusions based on the record of the suppression hearing and the prior judge’s ruling that the statement was voluntarily made. Id. This Court distinguished Garcia , “In Garcia , however, we did not specifically address the rare situation that presents itself here, wherein the prior judge cannot be appointed to prepare findings of fact and conclusions of law because of unavailability or ineligibility.” Id. This Court took note of the “peculiar circ umstances” of the case: While the record does not include th e reason the presiding judge of the Fifth Administrative Region did not appoint the prior judge to prepare findings and conclusions, we take note of the readily available public information indicating that the prio r judge is currently unavailable for appointment. In such a situation, where the prior judge is unavailable or ineligible for an appointment, we find it appropriate that there be an exception to the rule laid out in Garcia . In the event that the judge who presided over a suppression hearing is unavailable or ineligible to be appointed to prepare findings of factand conclusions of law, the current trial judge may prepare findings and conclusions based on the prior judge's ruling on the record and the tr anscript of the suppression hearing regarding whether a defendant's statement was voluntarily made. We recognize that the original tria l judge, who is uniquely situated to observe the demeanor of witnesses fi rst-hand, is generally in the best position to assess the credibility of witnesses. See Ex parte Reed , 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). In this rare circumstance, the trial judge making the findings and conclusions did not observe the demeanor of the witnesses becau se she did not preside over the suppression hearing. However, sh e refrained from making any explicit credibility determinations. Thus, we will accept the new trial judge's findings and conclusions, and we will review the record to determine if they are supported by the evidence. Velez , 2012 WL 2130890, at *13.

2If published, Velezcould be cited as precedential authority for allowing a successor trial judge to make findings of fact and conclusions of law when (1) the judge who heard the suppression hearing is deceased or otherwise unavailable, and (2) no explicit credibility determinations need be made. In Luis Carlos Rodriguez v. State , No. 01-14-00774-CR, the trial judge who heard the suppression hearing, Hon. Thomas Culver III, passed away in September 2015. Mr. Rodriguez did not testify at th e suppression hearing, and the facts are undisputed. No explicit credibility determinations need be made. The two Velez factors that would allow a successor judge to make findings and conclusions are met. However, as shown in the attached motion to abate the appeal, Mr. Rodriguez is asking for a de novo suppression hearing because Judge Culveris deceased. [Mtn at 2] The State would like to cite Velezas precedential authority in response. However, Rule of Appellate Procedure 77.3 provides that this Court’s “[u]npublished opinions have no precedential value and must not be cited as authority by counsel or by a court.” Tex. R. App. P. 77.3. The Court’s holding in Velezhas not been adopted by this Court in a published opinion, and thus should not be cited. This Court’s holding in Velezwas applicable in at least one other case, PavonMaldonado v. State , No. 14-13-00944-CR, 2015 WL 1456523, at *4 n.5 (Tex. App.-- Houston [14th Dist.] Mar. 26, 2015, no pet.) (mem. op. not designated for

3publication). “The Court of Criminal Appeals may, at any time, order that a “do not publish” notation be changed to “publish.” Tex. R. App. 47.2(b) (albeit w ith regard to opinions of the courts of appeals) . The State believes that Velez , established an exception to Garcia that will save scarce state and judici al resources when a defendant has been afforded a pre-trial hearing on his suppre ssion motion, the trial judge passes away, or is otherwise unavailable, and the facts adduced at the suppression hearing are undisputed and no explicit credibility determinations need be made.

4WHEREFORE, PREMISES CONSIDERED, the State asks this Court to grant its motion to publish that part of its opini on in this cause addr essing Point of Error Ten so that the opinion may be cited for its precedential value. Respectfully submitted, John F. Healey, Jr. SBOT # 09328300 District Attorney, 268th Judicial District Fort Bend County, Texas /s/ Gail Kikawa McConnell Gail Kikawa McConnell SBOT # 11395400 Assistant District Attorney 301 Jackson Street, Room 101 Fort Bend County, Texas 77469 (281) 238-3205 / (281) 238-3340 (fax) Gail.McConnell@fortbendcountytx.gov

5CERTIFICATE OF SERVICE I hereby certify that on November 5, 2015, a copy of the State's motion to publish was served on : L.J. Rabb, Assistant District Attorney, Cameron County, by e-service or email <lrabb@co.cameron.tx.us>; Brian W. Stull, Attorney for Manuel Velez, by first class mail, return receipt requested # 7013 0600 0002 2111 7188, 201 W. Main St , Ste 402, Durham, N.C. 27701-3228; Mr. Stephen Doggett, Attorney for Louis Carlos Rodriguez, by e-service or email < office@doggett-law.com >; Ms. Lisa McMinn, State Prosecuting Attorney, by e-service or email, <Lisa.McMinn@SPA.texas.gov>

/s/ Gail Kikawa McConnell Gail Kikawa McConnell

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# Velez v. State Point of Error Ten