Opinion
05-19-01137-CR
06-14-2022
NICHOLAS RYAN NADEAU, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-83228-2018
Before Justices Myers, Carlyle, and Goldstein
ORDER
LANA MYERS JUSTICE
Appellant Nicholas Ryan Nadeau appeals his conviction for possession of methamphetamine. Both appellant and the State have filed their responsive briefs. One of appellant's four issues concerns the apparent conflict in the record between a written order signed by trial court granting appellant's pretrial motion to suppress, and, later, an oral denial of the motion to suppress.
According to the record, on August 7, 2019, approximately nineteen days before the start of trial, appellant filed a pretrial motion to suppress arguing that the stop of appellant by the Frisco Police Department was unlawful and violated appellant's constitutional and statutory rights. The following day, on August 8, the trial court signed a written order granting the motion to suppress. Seven days later, on August 15, the trial court held a suppression hearing at which evidence was heard. At the conclusion of that hearing, the trial court announced, "[T]he motion to suppress is denied."
Appellant argues that the entry of a written order suppressing the evidence and, later, an oral denial of the motion to suppress requires this case to be abated for a finding by the trial court. The State responds that the trial court's written order granting appellant's motion to suppress was a clerical error, but nonetheless agrees with appellant that the law requires abatement due to the trial court's conflicting oral denial of the motion.
Both sides argue, and we agree, that rule 44.4 of the Texas Rules of Appellate Procedure governs this situation. The rule provides in part:
(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:
(1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and
(2) the trial court can correct its action or failure to act.
(b) Court of Appeals Direction if Error Remediable. If the circumstances described in (a) exist, the court of appeals must direct
the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred.Tex. R. App. P. 44.4.
Henery v. State, 364 S.W.3d 915 (Tex. Crim. App. 2012), involved a somewhat similar situation. Henery presented a conflict in the record between the trial court's oral denial of a motion to quash the information against Henery and a subsequent written order granting the same motion. Id. at 916. Thereafter, Henery pleaded guilty, the trial court accepted the plea, and a sixty-day sentence was imposed. Id. at 917. The appellate court concluded that the trial court lost jurisdiction when the trial court entered its order quashing the indictment, and all actions taken by the trial court after that point were void. Id. But the Texas Court of Criminal Appeals reversed, concluding that the case should have been abated to the trial court pursuant to rule 44.4 to determine if the written order quashing the indictment was a clerical error, or if the trial court intended the written order to control. Id. at 919. This was necessary, the court explained, because the conflict between the trial court's oral denial of the motion to quash and its written order granting the same motion prevented the case from being properly presented to the court of appeals. Id. at 918. The court reasoned that "only the trial court [was] in the position to know whether the grant or denial was intended." Id. at 919 (citing Tex.R.App.P. 44.4(a)(2)). The court observed that "it appears that the written order was signed as the result of a clerical error." Id. However, because there was "no such determination at the trial level, and an appellate court can not presume such," the court of appeals had a duty "to abate the case so that the trial court could clarify which actions was intended." Id.
In this case, we are confronted with a similar conflict in the record. The trial court signed an order granting appellant's pretrial motion to suppress and, later, following a suppression hearing, orally denied the motion to suppress. We are not free to presume what the trial court intended. Therefore, we abate this matter to the trial court pursuant to rule 44.4 of the rules of appellate procedure to clarify which action was intended. See Henery, 364 S.W.3d at 919; Taylor v. State, 247 S.W.3d 223, 223-24 (Tex. Crim. App. 2008) (abating case to trial court when trial court both granted defendant's motion for new trial and certified the case for appeal); Towery v. State, 262 S.W.3d 586, 591 (Tex. App.-Texarkana 2008, pet. ref'd) (abatement pursuant to rule 44.4 appropriate in the face of conflicting orders of acquittal and conviction); Cunningham v. State, No. 06-15-00129-CR, 2016 WL 5377916, at *2 (Tex. App.-Texarkana Sept. 27, 2016, no pet.) (mem. op., not designated for publication) (abating to trial court pursuant to rule 44.4 to determine whether court intended oral pronouncement quashing enhancement to control, or whether court intended written order purporting to quash indictment to control).
We hereby ORDER as follows:
We ABATE this appeal for a hearing solely to determine whether the trial court intended the written order granting the motion to suppress to control, or whether the trial court intended the oral pronouncement to control. If it is determined that the trial court intended that the motion to suppress be denied, the trial court should correct the record and issue the appropriate written order. See Tex. R. App. P. 44.4. In that event, in accordance with rule 44.4, this Court will proceed as if the erroneous action or failure to act had not occurred. Id.
The hearing in the trial court shall be conducted within TWENTY DAYS of the date of this order. The reporter's record of that hearing shall be filed in the form of a supplemental reporter's record within TWENTY DAYS of the date of the hearing. The supplemental clerk's record should likewise be filed within TWENTY DAYS of the date of the hearing.
This appeal is ABATED to allow the trial court to comply with the above order. The appeal shall be reinstated following receipt of the supplemental clerk's record.