Opinion
Appellate case number: 01-14-00279-CR
05-26-2016
Allen Bernard Gims v. The State of Texas
ORDER Trial court case number: 1262460 Trial court: 176th District Court of Harris County
On April 26, 2016, this court issued an order abating this case because appellant's appointed counsel failed to timely file a brief. See TEX. R. APP. P. 38.8(b). Among other things, the abatement order directed the trial court to determine whether good cause exists to relieve appointed counsel, "specifically addressing whether counsel's failure to file a brief after multiple extensions and over a year after the final extension ordered by this Court constitutes good cause for his removal." On April 27, 2016, appellant's counsel purported to file a brief along with a motion requesting that this court (1) extend the time to file appellant's brief to April 26, 2016 and (2) rescind the April 26, 2016 abatement order.
Despite its title, the substance of the document filed by appellant's counsel is a motion rather than a brief. Instead of identifying a ground that could support reversal or modification of the trial court's judgment (or alternatively satisfying the Anders standard for explaining why that is not possible), the document merely re-urged a procedural request that we abate the case to the trial court for findings of fact and conclusions of law.
A request to abate for additional findings previously was urged to this court in a motion filed on December 31, 2014 and denied by an order dated March 5, 2015 (which also noted that the appellant's brief was "long overdue" and ordered the filing of a brief or "a motion for brief extension of time" within 3 days). On March 6, 2015, appellant's counsel filed a motion for an extension of time along with a second motion to abate, re-arguing the same request denied by this Court. On the same day, this Court issued an order (1) granting an extension and ordering the brief filed by March 20, 2015 and (2) denying the second abatement request.
Over a year later, and only after the case was abated for a determination of whether new counsel should be appointed, counsel has urged a third request to abate for additional findings. The new filing specifically addresses for the first time the adequacy of the findings and conclusions that were dictated into the record on December 11, 2012, to the effect that the trial court found that appellant's statements "were made voluntarily" and that "the defendant was not in custody at the time that they were made since he left the police station after making the statements." Appellant contends that these findings were inadequate. See TEX. CODE CRIM. P. art. 38.22, § 6 ("the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based").
The only specific argument that appellate counsel suggests as a deficiency of the trial court's findings is that they "make no reference to any of the obvious questions concerning the aspect of appellant's mental [health] issues as they relate to the voluntariness of an incriminating statement given by him." But no argument is offered to suggest that appellant's mental capacity actually was at issue with respect to the voluntariness of his statement. There was no mention of that issue in either appellant's written pro se motion to suppress or the written motion to suppress filed by his trial lawyer. The record of the hearings on the motion to suppress are likewise devoid of any suppression argument based on mental incapacity.
Because appellant was represented by counsel and was not entitled to hybrid representation, the trial court was free to disregard the pro se motion. See, e.g., Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007).
The written motion to suppress filed by the trial lawyer argued that "Defendant was either under arrest or deprived substantially of his freedom by the attendant presence of the officers and surrounding circumstances." CR 125. It also argued that "Defendant was in custody, without the assistance of counsel, and without having been taken before a magistrate, and made certain statements which were legally involuntary." Id. The trial court's oral findings were directly responsive to these arguments, finding that appellant was not in custody at the time of his statements because he left the police station afterwards. --------
The appellant's mental health was not the basis for the motion to suppress. Moreover, in the absence of an explicit finding of fact on the issue of appellant's competency to voluntarily provide his statement, we may assume that the trial court made implicit findings of fact supported by the record. See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). As such, a remand is not justified for the purpose of obtaining an explicit finding of fact regarding appellant's mental state.
The Clerk is directed to strike the purported brief filed on April 27, 2016. The motion to extend time to file a brief and to withdraw the abatement order is denied.
It is so ORDERED. Judge's signature: /s/ Michael Massengale
[×] Acting individually Date: May 26, 2016