Abatement Order filed January 16, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-00154-CR

THE STATE OF TEXAS, Appellant

V.

JOHN WESLEY BALDWIN, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1527611

ABATEMENT ORDER

This case comes to us after conflicting rulings from two different trial 

judges.

The first judge, the Honorable Denise Collins, presided over an evidentiary 

hearing on a motion to suppress. At that hearing, the defense sought to suppress the 

statements of appellee John Baldwin, as well as certain cellphone evidence that had 

been obtained pursuant to a search warrant. The defense argued, among other 

points, that all of this evidence should be suppressed because it was the fruit of an 
2

unlawful traffic stop. The defense further argued that, even if the traffic stop had 

been lawful, the cellphone evidence should be suppressed because the affidavit in 

support of the search warrant was legally insufficient to establish probable cause.

After considering the evidence and arguments of counsel, Judge Collins 

orally found that the traffic stop was lawful but that the affidavit was insufficient. 

Judge Collins accordingly granted the motion to suppress in part, but she did not 

reduce her ruling to writing. Without a written order, the State was precluded from 

filing an interlocutory appeal. See State v. Sanavongxay, 407 S.W.3d 252, 258–59 

(Tex. Crim. App. 2012).

While the case remained pending, Judge Collins was succeeded by the 

Honorable Greg Glass, who issued a written order on the motion to suppress. In 

that written order, Judge Glass granted the motion in full, rather than in part as 

Judge Collins had previously ruled. Judge Glass did not enter any findings of fact 

and conclusions of law along with his written order. And though his written order 

contains recitals indicating that he considered the evidence and arguments of 

counsel, our record does not reflect that Judge Glass ever presided over a hearing.

The State filed an interlocutory appeal of Judge Glass’s written order, and 

now raises two issues in its appellate brief. First, the State argues that Judge Glass 

should not have suppressed the cellphone evidence because, when viewed in the 

light most favorable to the magistrate’s decision, the affidavit actually supports a 

determination of probable cause. Second, the State argues that Judge Glass should 

not have suppressed Baldwin’s statements because Judge Collins had previously 

found that the traffic stop was lawful, and that finding was supported by evidence 

adduced at the hearing.

We cannot address the sufficiency of the affidavit without first addressing 

the lawfulness of the traffic stop, because if the traffic stop were unlawful, then all 
3

of the evidence would need to be suppressed as fruit of the poisonous tree—unless 

an exception applied, which the State has not suggested. See Utah v. Strieff, 136 S. 

Ct. 2056, 2061 (2016) (recognizing three exceptions to the exclusionary rule).

Judge Glass did not make any express findings as to the lawfulness of the 

traffic stop, but if we were to presume that he made all implied findings in support 

of his ruling, as our standard of review requires, then we would have to conclude 

that he implicitly found that the traffic stop was unlawful, as that was the only 

ground offered for suppressing Baldwin’s statements. See Johnson v. State, 414 

S.W.3d 184, 192 (Tex. Crim. App. 2013) (“In reviewing a trial court’s ruling on a 

motion to suppress, appellate courts must view the evidence in the light most 

favorable to the trial court’s ruling. When the trial court does not make explicit 

findings of fact, the appellate court infers the necessary factual findings that 

support the trial court’s ruling if the record evidence (viewed in the light most 

favorable to the ruling) supports these implied fact findings.”).

The implied finding from Judge Glass conflicts with the express finding 

from Judge Collins, but Judge Glass was not necessarily bound by his predecessor. 

A pretrial ruling on a motion to suppress is an interlocutory ruling that “a trial 

court may revisit at its discretion at any time during the course of a trial.” See 

Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012). And under Article 

28.01 of the Code of Criminal Procedure, Judge Glass could have revisited the 

motion to suppress and determined that the traffic stop was unlawful, based solely 

on the motion itself. See Tex. Code Crim. Proc. art. 28.01, § 1(6) (providing that 

“the court may determine the merits of said motion on the motions themselves, or 

upon opposing affidavits, or upon oral testimony, subject to the discretion of the 

court”); Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002) (“Appellant’s 

motion to suppress asserted that the traffic stop and search were done without a 
4

warrant. By providing for a determination of the merits of such a motion on the 

motion itself, Art. 28.01, § 1(6), established the motion to suppress as the basis for 

an allegation of a Fourth Amendment violation.”).

But at the very least, Judge Glass would have needed to conduct a hearing 

under Article 28.01, even if no evidence was taken. See Tex. Code Crim. Proc. art. 

28.01, § 1(6) (providing that the trial court may determine the merits of a motion 

using the motion itself “when a hearing on the motion to suppress is granted”). 

And a record of the hearing should have been prepared. See Tex. Code Crim. Proc. 

art. 28.01, § 2 (“The record made at such pre-trial hearing, the rulings of the court 

and the exceptions and objections thereto shall become a part of the trial record of 

the case upon its merits.”). We do not have a record of a hearing. Moreover, the 

State has represented on appeal that no hearing occurred, and the defense has not 

challenged that representation.

In certain situations, a successor judge may adopt the findings of a 

predecessor judge without having to conduct a de novo hearing, provided that the 

predecessor judge presided over a procedurally and substantively adequate hearing. 

See, e.g., Bass v. State, 626 S.W.2d 769, 774–75 (Tex. Crim. App. 1982) 

(addressing voluntariness issues under Article 38.22). But we are not aware of any 

authority that would permit a successor judge to reject the findings of a 

predecessor judge without having conducted any hearing at all.

Given the conflicting rulings and the absence of a hearing transcript from 

Judge Glass, the State has suggested that an abatement may be required, and we 

agree. Under our rules, we must abate an appeal “if (1) the trial court’s erroneous 

action or failure or refusal to act prevents the proper presentation of a case to the 

court of appeals; and (2) the trial court can correct its action or failure to act.” See 

Tex. R. App. P. 44.4.
5

The erroneous action here is that Judge Glass issued a ruling on the motion 

to suppress that departed from the ruling of his predecessor, and he did so without 

any sort of hearing. That conflict is preventing the proper presentation of the 

appeal because we cannot determine whether Judge Glass believed that the traffic 

stop was unlawful (which is the implication of his ruling), or whether he intended 

to adopt his predecessor’s finding that the traffic stop was lawful but he 

inadvertently granted more relief instead (which might explain why he did not 

conduct a hearing in the first place). If the former is true, Judge Glass could 

express that intent at a recorded hearing and cure any error under Article 28.01. 

And if the latter is true, Judge Glass could remedy the conflict by issuing a 

corrected order. See Henery v. State, 364 S.W.3d 915, 919 (Tex. Crim. App. 2012) 

(ordering the abatement of an appeal and holding that the trial judge could correct 

an order if the judge determined that the order was the result of clerical error).

We therefore remand this case for a hearing where Judge Glass can clarify 

the scope of his ruling. In his discretion, Judge Glass may choose to revisit the 

motion to suppress de novo by ordering the live presentation of witnesses. See Tex. 

R. App. P. 43.6 (“The court of appeals may make any other appropriate order that 

the law and the nature of the case require.”). A record of the hearing shall be 

included in a supplemental reporter’s record and any rulings or related documents 

shall be included in a supplemental clerk’s record, and both supplemental records 

shall be filed with the Clerk of our court on or before February 18, 2020.

Without expressing any opinion on the merits of this interlocutory appeal, 

we abate the appeal, treat it as a closed case, and remove it from this court’s active 

docket. The appeal will be reinstated on this court’s active docket when the 

supplemental records are filed or as this court may otherwise order. 
6

PER CURIAM

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.