Opinion
No. 07-16-00058-CR
03-10-2017
THOMAS DIXON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court Lubbock County, Texas
Trial Court No. 2012-435 ,942, Honorable Jim Bob Darnell, Presiding
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Thomas Michael Dixon has appealed his conviction for capital murder and sentence of life in prison without the possibility of parole. Appellant has filed his brief and the State its response.
Our preliminary review of the parties' briefs reveals two matters we now address on our own motion. Both concern findings of fact and conclusions of law.
Issues Alleging Exclusion of the Public from Trial
In his brief, appellant's issues 11 through 16 deal with his contention the trial court excluded the public from his trial, on three occasions. His brief argues in part that the court failed to make findings of fact that justified closing the trial. See, e.g., Lilly v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012); Steadman v. State, 360 S.W.3d 499 (Tex. Crim. App. 2012). See also Peyronel v. State, 465 S.W.3d 650 (Tex. Crim. App. 2015).
We have been unable to locate in the record findings addressing the allegations the public was excluded from appellant's trial on the three occasions. We find in the record, however, indications the trial court intended to make findings and began the process of doing so. At the conclusion of the motion for new trial hearing, it appears, the State presented proposed findings of fact on the public trial issue. Appellant objected to the State's proposed findings. The court stated that appellant would be permitted to submit his own proposed findings and it would "probably modify one or both of yours into one." The record contains appellant's proposed findings, but does not include findings signed by the trial court. Considering the statement in appellant's brief asserting the failure of the court to make findings justifying closure and the absence of any claim by the State that the court made such findings, and because we have not located signed findings in the voluminous record, we conclude that findings were not completed, signed and filed, even though the process of their preparation was begun.
Issue Attacking Denial of Motion to Suppress Evidence
In his forty-eighth issue, appellant argues the trial court erred by failing to make findings of fact and conclusions of law concerning its order denying his motion to suppress historic cell site data. At the conclusion of the suppression hearing, appellant requested preparation of findings of fact and conclusions of law should the court deny his motion to suppress. By written order signed October 14, 2015, the trial court denied the suppression motion. The record does not contain corresponding findings of fact and conclusions of law. In his brief, appellant asks that we abate the appeal and remand the case to the trial court for preparation of findings of fact and conclusions of law. On the timely request of the party losing a motion to suppress, a trial court must issue essential findings of fact and conclusions of law justifying its ruling. State v. Cullen, 195 S.W.3d 696, 698-99 (Tex. Crim. App. 2006).
Order
For these reasons, the appeal is abated and the case remanded to the trial court. On remand the trial court shall use whatever means it deems appropriate to: (1) complete its findings on the public-trial matter, see Steadman, 360 S.W.3d at 501 (remand by court of appeals), TEX. R. APP. P. 44.4(a),(b); and (2) prepare findings of fact and conclusions of law supporting its order on appellant's motion to suppress cell site evidence. See Cullen, 195 S.W.3d at 698-99 (applying appellate rule 44.4 as a remedy for absence of requested findings and conclusions). Once the findings, and the findings and conclusions, are signed they shall be filed with the district clerk who shall include them in a supplemental clerk's record to be filed with the clerk of this Court as soon as is feasible, and in any event by April 10, 2017. If the trial court is unable to complete its findings, and findings and conclusions, and cause the record to be filed here by April 10, the court shall file a status report by that date.
The Court previously granted appellant until April 7, 2017, to file his reply brief. That deadline is not altered by this order.
It is so ordered.
Per Curiam Do not publish.