Opinion
NO. 12-19-00377-CR
07-31-2020
THE STATE OF TEXAS, APPELLANT v. GEORGIA DONNELL, APPELLEE
APPEAL FROM THE 258TH JUDICIAL DISTRICT COURT TRINITY COUNTY , TEXAS ORDER
The State of Texas appeals from an order granting a motion to suppress filed by Georgia Donnell, who was charged with possession with intent to deliver methamphetamine in an amount less than one gram. On November 5, 2019, the trial court granted Donnell's motion to suppress and filed findings of fact and conclusions of law. On November 13, the State requested supplemental findings on grounds that the trial court omitted several facts, from the testimony of Sergeant Jeremy Alexander of the Trinity County Sheriff's Office, that led to the stop of Donnell's vehicle. The trial court never filed supplemental findings. On February 5, 2020, the State filed a motion to abate with this Court, asking that we direct the trial court to make supplemental findings. On February 26, this Court ordered the trial court to file supplemental findings and identified eight categories of omitted findings presented by the State. The trial court signed five supplemental findings on March 18. On April 2, the State filed a second motion to abate with this Court, contending that the supplemental findings failed to address all eight categories listed in our order and failed to include express credibility findings. On June 30, we again abated the case and ordered the trial court to file supplemental findings that included explicit credibility findings in each of the eight categories set forth in our order.
We detailed these findings in our prior abatement order. See State v . Donnell , No. 12-19-00377-CR (Tex. App.—Tyler Feb. 26, 2020) (order).
See State v . Donnell , No. 12-19-00377-CR (Tex. App.—Tyler June 30, 2020) (order).
The trial court subsequently signed supplemental findings with respect to the eight categories. However, the State filed a motion with the trial court, in which it asked for supplemental findings regarding category five. In our order, we set forth category five as follows:
Category 5: The confidential informant (C.I.) advised Alexander that Donnell made a deal to purchase methamphetamine from another source.In its second set of supplemental findings, the trial court found the following with respect to category five:
Testimony: Alexander testified to observing everything the C.I. was telling him, including when Donnell contacted another dealer to obtain drugs.
See Supplemental Findings 2 and 5.
Alexander testified that Ms. Donnell could not get the drugs from her primary supplier. The Court sustained a hearsay objection. The Court finds this testimony credible. The Court sustained a hearsay objection to this testimony.This finding does not address evidence of the C.I.'s telling Alexander that Donnell arranged to purchase drugs from another supplier, as described in our order. In its motion to the trial court, the State identified this omission, requested a finding as to category five, and provided the trial court with a proposed supplemental finding. Despite the opportunity to do so, the trial court did not sign any supplemental findings with respect to the omitted category five. Thus, the State filed a third motion to abate with this Court.
Supplemental Finding 2 states: Alexander testified that the C.I. informed him there was supposed to be a drug buy with Donnell that day in Onalaska and he continued to keep in touch with the C.I. In support, Alexander offered "[s]ome text messages." These messages did not contain a phone number or other clearly identifying information. Alexander did not know who sent the messages. These were screenshots of messages the C.I. claimed to receive from Donnell and were not messages to Alexander. Alexander was not sure why he stated in his report that he did not receive the messages until after the stop. There were material differences in the testimony and the court finds that Alexander's testimony that he had the messages before the stop was not clearly supported by the evidence. The court sustained an objection to admission of the screenshots as an exhibit. Supplemental Finding 5 states: Alexander testified that the C.I. told him Donnell could not obtain the drugs from her supplier and the trial court sustained a hearsay objection. Alexander testified that screenshots of text messages relayed that Donnell eventually made a drug deal. There were material differences in the testimony regarding whether Alexander received the screenshots before the traffic stop; therefore, the court finds that the testimony is not supported by the evidence.
As we previously stated in our prior orders, as the losing party, the State was entitled to require that the trial court make explicit historical findings of fact and credibility determinations. State v. Mendoza , 365 S.W.3d 666, 670 (Tex. Crim. App. 2012). This Court "should not be forced to make assumptions (or outright guesses) about a trial court's ruling on a motion to suppress evidence." State v. Cullen , 195 S.W.3d 696, 699 (Tex. Crim. App. 2006); see Mendoza , 365 S.W.3d at 667 ("reviewing courts should not make implied findings of fact and credibility determinations that are contrary to the trial judge's ultimate ruling"). The prudent course is to remand the case to the trial judge to make findings of fact with greater specificity if the original findings are insufficient to resolve the legal question. Mendoza , 365 S.W.3d at 670.
In our prior orders, we explained that the eight categories omitted from the trial court's original fact findings, especially credibility determinations, are relevant to our determination of whether the trial court properly granted the motion to suppress. See id. at 667. The trial court did not make an explicit credibility determination as to the testimony identified in category five and we will not assume whether the trial court found the testimony to be credible or not credible. See Cullen , 195 S.W.3d at 698; see also Mendoza , 365 S.W.3d at 667, 672-73.
Accordingly,
It is ORDERED that the Honorable Travis E. Kitchens, Jr. shall file supplemental findings regarding the testimony identified in category five (set forth above) and this shall include explicit credibility findings as to Alexander's testimony in category five. Such findings must be filed with the district clerk on or before August 7, 2020.
It is FURTHER ORDERED that a supplemental clerk's record including the supplemental findings be certified to this Court on or before August 12, 2020.
Order entered July 31, 2020.
By:/s/_________
KATRINA MCCLENNY, CLERK