Opinion
03-23-00528-CR 03-23-00529-CR
11-20-2023
The State of Texas, Appellant v. Truman McCollum, Appellee
Do Not Publish
FROM THE COUNTY COURT AT LAW NO. 3 OF BELL COUNTY NO. MR2C2101191, THE HONORABLE REBECCA DEPEW, JUDGE PRESIDING
Before Justices Baker, Triana, and Smith
ORDER
PER CURIAM
The State of Texas has filed a notice of appeal from the county court at law's order granting appellee Truman McCollum's pretrial motion to suppress evidence. This is an accelerated appeal. See Tex. Code Crim. Proc. art. 44.01(a)(5), (f). The State's brief on appeal was originally due September 26, 2023. On October 11, 2023, we notified the State that if we did not receive a motion for extension of time or a brief accompanied by a motion for extension of time on or before Monday, October 23, 2023, the appeal would be subject to dismissal for want of prosecution.
On October 23, the State filed a motion to either abate the appeal and remand the case to the trial court for findings of fact and conclusions of law or, in the alternative, abate and remand "for further development through pretrial motions in the Trial Court." As a further alternative, the State moved for an extension of time to file its brief. McCollum has filed a response in opposition and a motion to dismiss the State's appeal for want of prosecution.
"[U]pon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings." State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). If the trial court fails to make such findings, the appropriate remedy is to abate the appeal and remand the case to the trial court for entry of its essential findings of fact and conclusions of law. Id. at 698-99. However, such a request must be timely made. Id. at 696, 698. A request for fact findings is timely if made within twenty days after the trial court's order or judgment is signed. See Melendez v. State, 467 S.W.3d 586, 590-91 (Tex. App.-San Antonio 2015, no pet.) (citing Tex.R.Civ.P. 296); see also Haskell v. State, 664 S.W.3d 152, 153-54 (Tex. Crim. App. 2022) (explaining procedures for requesting fact findings); Cullen, 195 S.W.3d at 699 (looking to rules of civil procedure to provide guidance regarding timing requirements). Absent a timely request, the losing party forfeits its right to express fact findings, and the appellate court reviews the suppression ruling by implying any fact findings that support the trial court's ruling so long as those findings are supported by the record. See Cullen, 195 S.W.3d at 698-99. Here, the record does not reflect that the State requested findings from the trial court within twenty days of the date of the order granting the motion to suppress, and the State acknowledges in its motion that it failed to timely request findings. We therefore deny the State's motion to abate for findings of fact and conclusions of law.
We also deny the State's request in the alternative to abate and remand the appeal to the trial court for "further development." Abatement is appropriate when "a trial court's error prevents the proper presentation of the case to the appellate court and that error can be remedied," such as when a trial court erroneously fails to make required fact findings or hold a required hearing that would allow a party to present evidence or make an offer of proof. LaPointe v. State, 225 S.W.3d 513, 521 (Tex. Crim. App. 2007); see also Fakeye v. State, 227 S.W.3d 714, 718 (Tex. Crim. App. 2007). In this case, the trial court held a hearing on McCollum's motion to suppress, the State presented evidence at that hearing, and the trial court made its ruling after hearing argument from the parties and taking the matter under advisement. There is no need for "further development" in the court below regarding the motion to suppress.
Finally, we deny McCollum's motion to dismiss the State's appeal for want of prosecution. The State filed its motion for extension of time to file its brief by the deadline specified in this Court's notice, as we required it to do to avoid dismissal. Accordingly, we grant the State's motion for extension of time and order the State to file its brief no later than December 18, 2023. No further extension of time will be granted and failure to comply with this order may result in the dismissal of this appeal for want of prosecution. See State v. Bissing, 169 S.W.3d 729, 730 (Tex. App.-Waco 2005, no pet.) (explaining that abatement procedures in Rule 38.8(b) do not apply to appeals by State and that failure of State to file appellant's brief in criminal case authorizes dismissal of appeal); State v. Sanchez, 764 S.W.2d 920, 921 (Tex. App.-Austin 1989, no writ) (holding that failure of State's attorney to file brief as appellant constitutes "abandonment of the appeal by the State" and authorizes dismissal of appeal).
It is ordered.