# NO. 12

- 19

- 00377

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS,

APPELLANT

V.

GEORGIA DONNELL,

APPELLEE §

§

§ APPEAL FROM THE 258T H

JUDICIAL DISTRICT COURT

TRINITY COUNTY, TEXAS

PER CURIAM ORDER

T he State of Texas appeals from an order granting a motion to suppress filed by Georgia

Donnell. On November 5, 2019, the trial court granted the motion and filed findings of fact and

conclusions of law

. On November 13, the State requested supplemental findings on grounds that

the trial court omitted several facts , from the testimony of Sergeant Jeremy Alexander of the

Trinity County Sheriff’s Office, that led to the stop. The trial court did not file any supplemental

findings. On February 5, 2020 , t he State filed a motion to abate with this Court , asking that we

direct the trial court to rule on the State’s motion for supplemental findings. The State notes that

it filed a second motion for supplemental findings on February 5 , in which it requested that the

trial court find the omitted facts from Alexander’s testimony to be credible or not credible

. We

abate and remand.

Upon the request of t he losing party on a motion to suppress, the trial court shall state its

essential findings, i.e., those findings of fact and conclusions of law adequate to provide an

appellate court with a basis upon which to review the trial court’s application of the l aw to the

facts. State v. Cullen , 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). The losing party may require

the trial judge to make explicit historical findings of fact and credibility determinations. State v.

Mendoza , 365 S.W.3d 666, 670 (Tex. Crim. App . 2012). Because an appellate court’s review of

the trial court’s ruling is restricted by an inadequate record of the basis for that ruling, it is

### necessary to require a trial court to express its findings of fact and conclusions of law when

requested by the losing party. Cullen , 195 S.W.3d at 700. T he prudent course is to remand the

case to the trial judge to make findings of fact with greater specificity if the original findings are

insufficient to resolve the legal question. Mendoza , 365 S.W.3d at 67 0.

The State charged Donnell with possession with intent to deliver methamphetamine in an

amount less than one gram. The charge arose from a stop of Donnell ’s vehicle after a confidential

informant (CI) told Alexander that she could purchase methamphetamine from Donnell . During

the stop, Donnell confessed to having drugs in her pocket.

T he trial court made numerous findings of fact , which we summarize as follows:

On November 28, 2018, Trinity County C hief Deputy Tommy Park was sitting in his vehicle in a n empty lot next to the Ha wg Heaven subdivision at the Trinity County/Polk Co unt y line because

Donnell was supposedly traveling from Onalaska, Polk County, Texas.

Park saw Donnell driving a blue GMC truck from Polk Co unty into Trinity County.

Park did not see Donnell do anything illegal or commit any traffic violations. Park relayed the information to Alexander who was waiting in Trinity County to arrest Donnell

. Alexander received information from an unidentified CI that she could purchase methamphetamine

from Donnell

. On November 28 , the CI said she arranged the buy with Donnell , who would obtain the narcotics in

Onalaska.

Alexander had never worked with the CI

, met the CI , or used the CI, and could not say the CI h ad been reliable in the past. Alexander admitted the CI had a drug criminal history and left the State of Texas.

The CI told Alexander that Donnell was using the CI ’s phone to text a drug supplier.

Alexander never saw the CI with Donnell on the date of the offense or at any other time. After Alexander arrested Donnell, the CI gave him copies of the text s from Donnell to the alleged supplier . He did not receive the text s to his phone and could not say who actually sen t the text s

. Alexander did not see a c opy of the texts until after arrest ing Donnell

. Alexander did not see Donnell at a location where she was allegedly obtaining drugs in Onalaska. Alexander positioned his vehicle in Trinity County at Cattle Line Bar on the c ounty line and

observed Donnell c ross from Polk County into Trinity County.

The text s have a phone number but no identifying numbers, who is texting whom, or a time stamp. Alexander did not stop Donnell for a traffic violation, see Donnell with drugs, or know who was

“ actually doing ” the text s

. Alexander stopped Donnell when she crossed into Trinity County ; she had committed no traffic violation and was not seen with drugs in plain view.

Donnell was not stopped in a high crime area where previous criminal activity was afoot.

Alexander stop ped Donnell and read her Miranda warnings.

Donnell state d the truck belonged to her son

- in

- law.

Alexander’s dash ca m was properly operating and record ed the stop, interview

, and arrest. Alexander’s “consent” to search resulted from the following excha nge: Alexander: You’re going to cooperate with me or you’re going to make me do this the hard way, all right? You got the dope. It’s either in the truck or it’s on your person. I’m either going to have a female come out here and search you or you can just hand it over and tell

me the truth? Donnell: I don’t have any dope. I’m working right up the road [

. ] Alexander: Georgia, listen to me, all right? Buddies over in Polk County

-- Don

-- we know all about this, okay? So here’s the deal, listen

-- look. I’m only going to give you oneopportunity to tell me the truth. I’ve already got probable cause to search your truck. So listen to me: If you make me tear that truck apart and you make me work for it, I’m not going to work with you at all, all right? I’m trying to give you the opportunity to tell me the truth and just hand it over. It’s a lot easier that way. I promise you. Donnell then admitted she had drugs in her pocket. A small amount of drugs was found on Donnell’s person.



### The trial court’s findings did not specify which portions of Alexander’s testimony, if any, it found

to be credible or not credible. In its conclusions of law, the trial court stated , in pertinent part :

The unnamed CI, (who m Alexander had never worked with

, met, or seen with Donnell

, he could not say had been reliable in the past, had a drug criminal history

, and left Te xas) did not provide reasonable suspicion to stop Donnell , especially considering it was not a high crime area, and

Donnell had not committed any traffic violations or other crimes witnessed by Alexander. There was no probable cause to search Donnell or he r vehicle.

Donnell’s confession was a product of an illegal stop. The confession was involuntary under the Fifth and Fourteenth Amendments to the United States Constitution, Miranda v. Arizona , 384 U.S. 436 (1966 ), Article s 38.21

, 38.22 §§ 2(b), 6, 38.23, and

1.04 of the c ode of c riminal p rocedure

, and Article I, §§ 13 and 19 of the Texas Constitution.



### T he State argues that the lawful basis for the stop can be found in Alexander’s testimony,

portions of which the trial court omitted from its findings. Specifically, in its motion for

supplemental findings, t he State identifie d the following omitted facts:

(1) The C.I. and Donnell were co

- workers and familiar with each other. ( 2) During the transaction, the C.I. kept Alexander updated on Donnell ’s movements and actions. ( 3) The C.I. advised Alexander that Donnell operat ed a blue GMC truck and would be headed in

their direction

... Alexander observed Donnell in a blue GMC truck. ( 4) The first time Alexander observed Donnell in the blue GMC , the C.I. had advised him that

Donnell was unsuccessful in purchasing methampheta m ine. ( 5) The C.I. advised Alexander that Donnell made a deal to purchase metha m pheta m ine from

another sou rce. ( 6) The C.I. sent Alexander a “ screen shot ,” a picture of a text message , before he stopped Donnell

, and confirm ed purchase of metha m pheta m ine from another source ... Alexande r did not have the

actual text m essage when he stopped Donnell

. ( 7) Alexander observed Donnell going to make the purchase of metha m pheta m ine in the direction

the C.I told him Donnell would be going to make the purchase. ( 8) Alexander stopped Donnell as she returned from the direction where she was supposed ly purchasing methamphetamine approximately 25 minutes after seeing her traveling in that direction

to purchase the methamphetamine.



### In response to the State’s motion, Donnell opposed numbers three, four, seven, and eight, agreed

to numbers one, two, and five, and agr eed to number six if amended to state, “ C.I. sent Alexander

a ‘ screenshot ’ which is essentially a picture of a text message after the stop was conducted.

### Alexander did not have the screenshot or the actual text message at the time he pulled Donnell

over, as indicated in his testimony and the contents of his report. ”

A trial court’s f indings and conclusions must be “ adequate and complete, covering every

potentially d ispositive issue that might reasonably be said to have arisen in the course of the

suppression proceedings. ” State v. Elias , 339 S.W.3d 667, 676 (Tex. Crim. App. 2011). An

appellate court “ should not be forced to make assumptions (or outright guesses) ab out a trial

court ’ s ruling on a motion to suppress evidence. ” Cullen , 195 S.W.3d at 698

. Because the items

the State identifies as being omitted from the trial court’s fact findings , especially credibility

determinations, are relevant to our determination of whether the trial court properly granted the

motion to suppress, we conclude that abatement is pr oper. See Mendoza , 365 S.W.3d at 667 , 673

( remand ing to appellate court with instructions to abate to trial court for supplemental findings

because written findings were ambiguous and there wa s no credibility determination ; trial court

was best positioned to evaluate officer ’ s credibility and was in best position to clarify ambiguous

findings and make explicit credibility determination ).

Accordingly,

It is ORDERED that the Honorable Travis E. Kitchens, Jr. shall rule on the State’s motion

for supplemental findings of fact, and prepare and file the court’s supplemental findings. Such

findings must be filed with the district clerk on or before March 19, 2020

. It is FURTHER ORDERED that a supplemental clerk’s record including the supplemental

findings be certified to this Court on or before March 26, 2020

.

WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12 th

Court of Appeals Distr ict of Texas, at Tyler.

GIVEN UNDER MY HAND AND SEAL OF SAID COURT , at my office this 26th day

of February 2020 , A.D.

KATRINAMCCLENNY , CLERK

12 th 

### Court of Appeals

By:_______________________________________