COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-340-CR

THE STATE OF TEXAS APPELLANT

V.

TINA FROID APPELLEE

------------

FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY

------------

OPINION

------------

Introduction

The State appeals the trial court’s order suppressing the evidence

obtained during a stop by police while appellee was driving. The State

contends that the trial court’s findings of fact and conclusions of law are

insufficient to comport with the dictates of State v. Cullen and requests that we

remand this appeal for additional findings and conclusions. 195 S.W.3d 696
(Tex. Crim. App. 2006). We decline this request and affirm the order of the

trial court.

Background Facts

An Arlington police officer followed appellee as she left a bar at about

5:30 one evening turning onto East Abram Street. At the suppression hearing,

the officer and appellee both testified, and the trial court took its ruling under

advisement because it wanted an opportunity to review the videotape from the

officer’s dashboard camera, which captured the officer following appellee and

stopping her. The officer testified to some of appellee’s driving conduct that

led him to believe that she was possibly driving while intoxicated, including the

following: some swerving within her lane, nearly hitting the curb, and delaying

in stopping for the officer. Appellee testified to the many potholes in the street

and her need to avoid running into them, along with the narrowness of the

street and curb. At the suppression hearing, the State and defense argued over

whether the officer had reasonable suspicion to make the stop. See Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).

Trial Court Findings

After the suppression hearing, and presumably after the review of the

video from the officer’s dashboard camera, the trial court entered the following

findings, conclusions, and order:

2
After reviewing the evidence and judging the credibility of the

witnesses, the Court finds that the police officer lacked reasonable

suspicion or probable cause to stop the Defendant’s vehicle. The

Court finds the Defendant was not stopped pursuant to any

warrant. The Court finds that the Defendant did not commit any

law violations prior to the stopping of her vehicle by the police

officer. Therefore, all evidence gained after the stopping of the

vehicle is not admissible. The Defense motion to suppress is

granted.

Sole Point on Appeal

The State appeals from this order, contending that the trial court failed

to “convey specific findings of fact and conclusions of law to provide the State

or this Court with sufficient information in order to prosecute a meaningful

appeal or conduct a meaningful review of the trial court’s findings.”

The Law: State v. Cullen

More specifically, the State contends that the trial court’s order does not

comply with the Court of Criminal Appeals’s mandate set forth in Cullen, in

which that court held that a trial court must grant a party’s timely request for

findings of fact and conclusions of law related to its ruling on a motion to

suppress. 195 S.W.3d at 698. The court agreed with Judge Womack’s

concurring opinion in Ross, in which she said appellate courts should not be

forced to ”make unjustified and incorrect assumptions” regarding trial court

rulings on motions to suppress. Id.; State v. Ross, 32 S.W.3d 853, 859 (Tex.

Crim. App. 2000) (Womack, J. concurring). The Cullen court further held that

3
a trial court should make essential 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 law to the facts.” Cullen,195 S.W.3d at

699. The court analogized to code of criminal procedure article 38.22, section

six, which requires a trial court to set forth the basis of its order of admissibility

regarding the voluntariness of an accused’s statement. Id. (citing Tex. Code

Crim. Proc. Ann. art. 38.22 § 6 (Vernon 2008)). Furthermore, the court cited

with approval and applied rule of civil procedure 297, which requires a trial

court to file findings of fact and conclusions of law within twenty days of a

timely filed request. Id. (citing Tex. R. Civ. P. 297). The Cullen court also

discussed the appropriate solution, citing appellate rule 44.4, which directs the

court of appeals to direct the trial court to correct remedial error when the trial

court can. Id. at 698 (citing Tex. R. App. P. 44.4). The court remanded the

case to the court of appeals so that the intermediate court could order the trial

court to enter findings of fact and conclusions of law. Id. at 700.

Analysis

Here, however, we have a different fact pattern. The trial court granted

the motion to suppress on September 10, 2008. The State timely filed a

motion requesting findings of fact and conclusions of law. The trial judge filed

written findings and conclusions in its order granting the defense suppression

4
motion, whereas in Cullen, the trial court simply refused to do so. But in this

case, the State is dissatisfied with those findings and conclusions, claiming

they are insufficient and that they do not provide the “essential” findings

required by the Cullen court. The State asks us to now remand this

interlocutory appeal of the suppression order to direct the trial court to file

additional findings of fact and conclusions of law. At oral argument, the State

argued that rules 43.6 and 44.4 authorize, if not mandate, this court to abate

for further findings and conclusions. Tex. R. App. P. 43.6 (authorizing court of

appeals to make appropriate order that law and nature of case require), 44.4

(directing court of appeals to have trial court correct remedial error). We

disagree, especially so in this particular circumstance: the State voiced no

objection to the adequacy of the trial court’s findings of fact or the

appropriateness of its conclusions of law in the trial court.

As a threshold matter, a fundamental prerequisite for preservation of

appellate issues on appeal is the corresponding duty to first ask the trial court

to correct a perceived error before challenging the ruling on appeal. See Tex.

R. App. P. 33.1(a)(1). Only if the trial court refuses to correct its error after

being directed to it, is the error preserved. Webb v. State, 275 S.W.3d 22, 25

(Tex. App.—San Antonio 2008, no pet.); see Mendez v. State, 138 S.W.3d

334, 338 (Tex. Crim. App. 2004); Stephenson v. State, 255 S.W.3d 652, 661

5
n. 42 (Tex. App.—Fort Worth 2008, pet. ref’d). Because the State did not first

give the trial court an opportunity to address its concern, it has waived this

complaint on appeal.

1 Sanchez v.State, 120 S.W.3d 359, 365–67 (Tex. Crim.

App. 2003) (for explanation of distinction of types of error). For these reasons,

we deny the State’s request to abate this appeal for entry of additional findings

of fact and conclusions of law. We affirm the order of the trial court.

TERRIE LIVINGSTON

JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

PUBLISH

DELIVERED: November 25, 2009

1 We also note that our holding comports with rule of civil procedure

298, which requires any party who desires additional findings of fact and

conclusions of law to file a request for same within ten days of the court’s filing

of its original findings and conclusions. Tex. R. Civ. P. 298. The State did not

timely request additional findings of facts and conclusions of law.

6