Opinion
Appellate case number: 01-17-00142-CR
07-11-2017
Joseph Dwayne Gibbs v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 1270510 Trial court: 176th District Court of Harris County
A jury convicted appellant, Joseph Dwyane Gibbs, of the non-death penalty capital offense of capital murder, and the trial court, the Honorable Leslie Yates, assessed his punishment at life confinement without parole on February 17, 2017. On February 17, 2017, appellant filed a notice of appeal and the trial court appointed the Harris County Public Defender's Office as appellant's new counsel on appeal. The trial court certified that this is not a plea-bargain case and that appellant has the right to appeal in the above trial court case.
On June 29, 2017, appellant's appointed counsel filed this motion to abate the appeal and remand the cause to the trial court to enter findings of fact and conclusions of law, as required by Texas Code of Criminal Procedure Article 38.22 § 6. Appellant claims that, although the trial judge had conducted a pretrial hearing on appellant's motion to suppress his statements based on his claim that they were not voluntarily made, the trial judge did not enter findings of fact and conclusions of law at that time, as required by Texas Code of Criminal Procedure Article 38.22 § 6. Appellant further contended that, while the State agreed that the entire transcript of the first interrogation was inadmissible, the trial judge made many rulings on the record regarding appellant's specific objections, granting some and denying others, that it will be difficult for this Court to extract from the reporter's record.
After a review of the clerk's record, it appears that neither party requested findings, but that the trial court failed to submit findings of fact and conclusions of law on the voluntariness of appellant's statements, which are required by Article 38.22 § 6. Article 38.22, section 6 of the Texas Code of Criminal Procedure requires the trial court to make written factual findings and conclusions of law as to whether a challenged statement was made voluntarily, even if the appellant did not request them or object to their absence. TEX. CODE CRIM. APP. PROC. ANN. art. 38.22 § 6 (West Supp. 2016); see Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013) (vacating and remanding for the trial court to make findings and conclusions regarding the voluntariness of the appellant's statements, even though neither party requested them). This statute makes written findings mandatory in all cases where a question is raised as to the voluntariness of a statement of an accused, and the proper procedure to correct the error is to abate and direct the trial court to make the written factual findings and conclusions of law. See TEX. R. APP. P. 44.4(b); Vasquez, 411 S.W.3d at 920.
Accordingly, the Court grants the appellant's motion, abates the appeal, and remands for the trial court to enter written findings of fact and conclusions of law, separate and apart from any docket sheet notations in this case, on the voluntariness of appellant's statements and admissions, if any. See Vasquez, 411 S.W.3d at 920 (listing the criteria for the trial court to determine voluntariness on remand); TEX. CODE CRIM. APP. PROC. ANN. art. 38.22 § 6. The trial court shall make the appropriate findings and conclusions and shall cause them to be filed with the trial court clerk within 30 days of the date of this order. We further order the trial court clerk to file a supplemental clerk's record containing the trial court's findings of fact and conclusions of law with this Court within 30 days of the date of this order.
This appeal is abated, treated as a closed case, and removed from this Court's active docket. This appeal will be reinstated on this Court's active docket after a supplemental clerk's record that complies with this Order is filed in this Court.
It is so ORDERED. Judge's signature: /s/ Evelyn V. Keyes
[v] Acting individually [ ] Acting for the Court Date: July 11, 2017