### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00033- CR

Michael Mar rer o, Appellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 OF CO MAL CO UNTY NO. 201 3 CR 00 98, H ONO RAB LE CHARLES A. STEP HENS II , JUDGE P RESIDING

O R D E R A N D M E M O R A N D U M O P I N I O N P ER CURIAM

Following the denial o f h i s pretria l motion to suppress evidenc e, appellant Michae l Marr ero pleade d g uilty to the misdemeanor offe nse of dri ving while intox icated and

was place d on co mmunity supervision for 15 months. After filing his notice of appea l, Marr ero reque sted finding s of fac t and conclusions of law explaining the trial court’s g rounds for deny ing his motion to s uppress. Although the trial court gra nted t he request on Dec ember 4, 2013, the re cord does not contain any signe d finding s of fac t or conclusions of law. Marr ero has now filed with this 1 Court a motion to abate and rema nd this cause to the trial court for entry o f fi n dings of fac t and conclusions of law

.

The recor d cont ai n s p r o

p o s ed finding s of fact and conclusions of law that wer e filed by 1 Marr ero, but these have not be en sig ned by the trial cour

t.The Te x as Court of C riminal Appea ls has held that “ upon the re quest of the losing

party on a mot ion to suppress evidence, the trial court sha ll state its essential findings,” which the court define d as “finding s of fac t and conclusions of law adequate to provide an appellate court with a basis upon which to r eview the trial court’ s application of the law to the facts.” These findings 2 must be “ade quate and complete, cover ing ever y potentially dispositi ve issue that might rea sonably be said to have arisen in the course of the suppression proce eding s,” including “explicit cre dibilit y 3 deter mination[ s]” reg arding the witnesses who testified at the suppression hea ri ng . When the 4 trial court fails to make s u ch finding s and conclusions, we are require d to abate the appea l and

rema nd the ca use to the trial cour

t for entr y of its “essential f

indings.” 5 The State has filed a response in opposition to Marr ero’ s m o t i o n to abate , the g ist of which is that Marr ero waiv ed an y co m p laint reg arding the absenc e of finding s of fac t and conclusions of law by not comply i n g wi t h t h e require ments in civil case s for prese rving

err or reg arding the t ri al co urt’s failure to prepa re such finding s. Howeve r, the Texas Court of 6

State v. Cullen , 195 S.W .3d 696, 699 (Tex. Crim. App. 2006). 2 State v. Elias , 339 S.W .3d 667, 676 (Tex. Crim. App. 2011). 3 State v. Me ndoza , 365 S.W .3d 666, 673 (Tex. Crim. App. 2012). 4 See Elias , 339 S.W .3d at 676-77; Cullen , 195 S.W .3d at 698-700; see also Tex. R. App. 5 P. 44.4(a) (“A court of appe al s must not aff irm or reve rse a judgme nt
. . . if the trial court’s
. . . failure or ref

usal to act preve nts the proper prese ntation of a case to the court of appea ls; and the trial court can corr ect its action or failure to act.” ), (b) (“I f the circ umstances descr ibed in (a) exis t, the cour t of appe als must direct the trial c ourt to corr ect the e rror .”). See Tex. R. Civ. P. 296 (“[A]ny party may reque st the court to state in writing its finding s 6 of fac t and conclusions of law. Such reque st
. . . shall be filed within twenty day s afte r judgme nt is signe d

. . . .”), 297 (“I f the court fails to file timely finding s of fac t and conclusions of law, the party making the re quest shall, within thirty day s afte r fili ng the original request, file wit h the cler k and 2Criminal Appea ls has not conditioned t he trial court’s duty to prepa re su ch fi n dings on the l osing party ’s compliance with these require ments. Unles s an d u n t i l that court instructs us otherwise, neither w ill we.

Acc ording ly , we g rant Marr ero’ s motion. We abate the appea l and rema nd the cause t o the trial court for entry of its finding s of fac t and conclusions of law. A supplement al cl er k ’s

rec ord containing the finding s of fac t a nd conclusions of law shall be filed with this Court no later than October 6, 2014. This a ppeal will be reinstated onc e the suppleme ntal cler k’s rec ord is f

iled.

Be fore J ustices Pury ear , Pemberton, and F ield Abated a nd Remanded Filed: September

4, 2014 Do Not Publish

serve on all other parties in accor d an ce with Rule 21a a ‘Notice of P ast Due Findings of Fa ct and Conclusions of L aw’ which shall be immediately called to the attention of the court by the cler k.”). 3