## NUMBER 13

- 1 9

- 00 326

- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

OSCAR DAVILA RODRIGUEZ, Appellant,

v.
THE STATE OF TEXAS, Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.



## ORDER

Before Chief Justice Contreras and Justices Benavides and Tijerina Order Per Curiam

Appellant Oscar Davila Rodriguez appeals his conviction of murder. See T EX

.
P ENAL C ODE A NN

. § 19.02(b)(1). Appellant was first tried and convicted in 2006. The Hon.
Bobby Flores presided over the trial and granted appellant’s motion for new trial.
Appellant’s second trial, from which this appeal stems, commenced in 2008 and was
presided over by visiting judge, the Hon. Jaime Garza.2 Before both trial s , appellant filed a motion to suppress his statement o f accused.
In his motion, appellant argued, among other things, that any statements he made to the
McAllen Police Department investigators w ere not made voluntarily

. Both judges in both

trials held pre

- trial suppression hearings on appellant’s motion

. At the suppression
hearing s , appellant raised the issue of the voluntariness of his statement of accuse d and
objected to its entry into evidence on voluntariness grounds

. Both judges denied
appellant’s suppression motion, and neither filed findings of fact an d conclusions of law.

Because written findings and conclusions are required in any case concerning the

voluntariness of a defendant’s statement of accused, and because this appeal stems from
appellant’s second trial, we abated this appeal for Judge Garza’s findings and conclusion s
on February 7, 2022. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 38.22, § 6; Vasquez v. State

, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013) (“ [W] ritten findings are required in all cases
concerning voluntariness. [Article 38.22, § 6] has no exceptions.” )

. On March 4, 2022, the trial court informed this Court that it was seeking to
temporarily appoint Judge Garza “for the limited purpose of rendering findings of fact and
conclusions of law regarding” the voluntarine ss of appellant’s statement of accused. On

March 29, 2022, the trial court informed this Court that Judge Garza was unavailable and
thus unable to prepare the required findings and conclusions , and th at Judge Flores

would render the findings and conclusions in Judge Garza’s stead

. We received a supplemental clerk ’ s record on April 5, 2022, with findings and

conclusions prepared by Judge Flores based upon the transcript s and his recollection of
the suppression hearing in appellant’s first trial

— over which Judge F lores p resided.

However, in “peculiar circumstances,” such as in this case, where “ the judge who3 presided over a suppression hearing is unavailable or ineligible to be appointed to prepare
findings of fact and conclusions of law, the current trial judge may prepare findings and
conclusions based on the prior judge ’ s ruling on the record and the transcript of the
suppression hearing regarding whether a defendant ’ s statement was voluntarily made. ”

Velez v. State , No. AP

- 76,051, 2012 WL 2130890, at *13 (Tex. Crim. App. June 13, 2012)
(not designated for publication) cert. denied 569 U.S. 968 (2013). As applied here, w hile
Judge Flores may appropriately make findings of fact and conclusion s of law, they must

be based on the record and transcript s of the relevant suppression hearing in this case :
the hearing over which Judge Garza presided on June 1 6

– 1 7 , 2008. See i d. Th ose
relevant transcripts may be found in v olumes five and six of the reporter’s record
contained within the appellate record filed in this case

. Accordingly, we order t he trial court to make its finding s and conclusions as

ordered herein and cause a supplemental clerk’s record containing the findings and

conclusions to be filed with the Clerk of this Court within TEN days from the date of this

order. Th e appeal will be reinstated upon receipt of the supplemental clerk’s record and
upon further order of this Court.

PER CURIAM

D o n ot p ublish. T EX

. R. A PP

. P. 47.2(b)

.
D elivered and filed on the 6t h day of April , 20 22

.