NO. 07-10-0131-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D FEBRUARY 2, 2011

__________________ ____________ CHRISTOPHER JAMES HARPER, APPELLANT V. THE STATE OF TEXAS, APPELLEE

__________________ _______________ FROM THE 54 TH DISTRICT COURT OF MCLENNAN COUNTY;

NO. 2009-1389-C2; HONORABLE MATT JOHNSON, JUDGE

__________________ _____________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

ABATEMENT AND REMAND Following a plea of guilty , Appellant, Christopher James Harper, was convicted of possession of marihuana in an amount of more than four ounces but less than five pounds, a state jail felony. 1 By a sole point of error, he challenges the trial court's order denying his motion to suppress.

1 Tex. Health & Safety Code Ann. § 481.121(b)(3) (West 2010).2 Background Appellant was a passenger in a vehicle that was st opped for a defective brake light by Corporal Bouse, an officer with the City of Woodway. He testified that he immediately detected the odor of an alcoholic beverage emanating from the vehicle. He assured the driver that if everything checked out, he would only issue a warning. The driver was asked to exit the vehicle and Corporal Bouse then conducted a warrants check on the driver and his passenger, the A ppellant. He discovered the driver was operating a vehicle with an expired and susp ended license and that Appellant's license was also expired and he had a history of drug charges. Backup was called and Appellant was also remo ved from the vehicle. According to Corporal Bouse, Appellant admitted consuming approximately five beers, and there was an open cont ainer beside the passenger seat. When threatened with a probable cause search of the vehicle and asked by Corporal Bouse if anything else would be found, Appellant admitted there was marihuana in the vehicle. At this point, Appellant was placed in handcuffs. A fter a cursory search of the vehicle for contraband which could possibly injure the drug detection canine, Corporal Bouse ran the dog around the car and it al erted under the passenger sea t. A large bag containing marihuana was discovered as well as a small marihuana cigarette. Appellant was charged with intentionally and know ingly possessing a usable quantity of marihuana. A motion to suppress a ll evidence was filed a lleging an unlawful, warrantless search and seizure. The only witness to testif y at the hearing was Corporal Bouse. The trial court denied the motion to suppress and Appellant pleaded guilty to3 the offense, was convicted, and sentenced to fi fteen months in a state jail facility. The trial court gave Appellant permissi on to appeal the pretrial ruling. The order denying the motion to suppr ess was signed on January 22, 2010, and Appellant timely filed a Request for Findi ngs of Fact and Conc lusions of Law on February 8, 2010. 2 None, however, were ever filed. Analysis

In Cullen v. State , 195 S.W.3d 696, 699 (Tex.Cri m.App. 2006), the Court held that "upon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings." Those findings of fact and conclusions of law must be adequate to provide an appellate cour t with a basis upon which to review the trial court's application of the law to the facts. Id. The findings need to be recorded in some way, whether written and f iled or stated on the record. Id. The reporter's record of the suppression hearing in the underlying case does not contain any statements on the re cord that could be considered findings by the trial court. Consequently, we abate this appeal and remand the c ause to the trial court for the filing of findings of fact and c onclusions of law as required by Cullen . We direct the Honorable Matt Johnson, Pr esiding Judge of the 54th District Court of McLennan County, to make and file his findings on or before March 1, 2011. Those findings and conclusions shall be included in either a supplemental reporter's record or a supplemental clerk's record to be filed with t he Clerk of this Court on or before March

2 In Cullen v. State , 195 S.W.3d 696, 699 (Tex.Crim.App. 2006), the Court looked to Rule 297 of the Texas Rules of Civil Procedure for guidance.4 15, 2011. On the filing of this supplemental record, the appellate record will be complete. If Appellant determines, after reviewing t he trial court’s findings and conclusions, that he should amend or supplement his brie f, his amended or supplemental brief will be due thirty days after the supplemental record is filed. Tex. R. App. P. 38.6(a). If Appellant files an amended or supplementa l brief, the State will have thirty days thereafter to file a responsive brief.

Per Curiam Do not publish.