Opinion
No. 08-13-00119-CR
2013-09-11
THE STATE OF TEXAS, State, v. JEFFREY GENDRON, Appellee.
Appeal from the
County Criminal Court No. 2
of El Paso County, Texas
(TC# 20130C00284)
ORDER
This is an appeal from an order granting a motion to suppress evidence. The State filed a request for findings of fact and conclusions of law, but the trial court has not acted on the motion. The trial court stated findings on the record but the State has filed a motion requesting that the appeal be abated in order for the trial court to make more specific written findings and conclusions. Appellee has not responded to the motion.
Upon the request of the losing party on a motion to suppress evidence, the trial court "must make findings of fact and conclusions of law adequate to provide an appellate court with a basis upon which to review the trial court's application of the law to the facts." State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App. 2006). If the trial court fails to make the required findings and conclusions, an appellate court may abate the appeal to allow the trial court to do so. Blocker v. State, 231 S.W.3d 595, 598 (Tex.App.--Waco 2007, no pet.).
The State's motion is GRANTED. We abate the appeal and remand the matter to the trial court to make the required written findings and conclusions. The court is specifically directed to make fact findings regarding whether or not the trial court found the officer's testimony credible. If the trial court found only some of the officer's testimony to be credible, the court should specifically identify the parts of the testimony the court believed and the parts it did not believe. More specifically, the court's findings should reflect:
1. whether or not the court specifically found that the appellee failed to signal an intent to change lanes;According to the State's motion, the trial court also stated that there was a conflict between the video recording of the incident and the officer's testimony about the incident. This conflict concerned the officer's testimony regarding how many times the vehicle swerved from one lane to another. The trial court is directed to make specific fact findings about that conflict in the evidence and how the court resolved it.
2. whether or not the court believed the officer's testimony that the officer observed the appellee's car swerve from one lane to another; and
3. whether or not the court believed the officer's testimony that the appellee's action in swerving from lane to lane placed other vehicles in danger.
A supplemental clerk's record containing the findings and conclusions must be certified and forwarded to this Court on or before October 11, 2013. The State's second motion for an extension of time to file the State's brief will remain pending until the requested findings and conclusions are filed with this Court.
IT IS SO ORDERED this 11th day of September, 2013.
PER CURIAM Before McClure, C.J., Rivera and Rodriguez, JJ.