Opinion
13-22-00616-CR 13-22-00617-CR
01-23-2024
THE STATE OF TEXAS, Appellant, v. CHRISTOPHER LYNN NEWTON, Appellee.
Do not publish. Tex.R.App.P. 47.2 (b).
On appeal from the County Court of Navarro County, Texas.
Before Justices Longoria, Silva, and Peña
ORDER OF ABATEMENT
PER CURIAM
Appellee Christopher Lynn Newton was charged by information and complaint with driving while intoxicated with a prior conviction, a Class A misdemeanor, see Tex. Penal Code Ann. § 49.04(a); id. § 49.09(a) (enhancing the offense to a Class A misdemeanor when a defendant has been previously convicted of the offense), and failure to meet his duty on striking a fixture, a Class B misdemeanor. See Tex. Transp. Code Ann. § 550.025(a), (b)(2). Newton filed a motion to suppress his arrest and all evidence obtained thereafter, arguing that his arrest was unlawful, which the trial court granted. The trial court issued findings of fact and conclusions of law. The State appealed. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5).
This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket equalization order issued by the Supreme Court of Texas. See Tex. Gov't Code Ann. § 73.001.
Among the findings of fact and conclusions of law by the trial court was that no exigent circumstances that would justify Newton's arrest existed. Newton, on appeal, argues that because the State did not attempt to establish exigent circumstances and does not challenge the trial court's findings of fact or conclusions of law on this issue, the State has waived the issue. See State v. Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App. 2016) ("If the appellant fails to argue a 'theory of law' applicable to the case on appeal, that argument is forfeited."); State v. McGuire, 586 S.W.3d 451, 458 (Tex. App.- Houston [1st Dist.] 2019, pet. granted) ("Because the State did not meet its evidentiary burden to bring McGuire's arrest within the sole warrant exception on which it relied, we must affirm the trial court's order granting the motion to suppress."); Barnett v. State, 469 S.W.3d 245, 250 (Tex. App.-Fort Worth 2015, pet. ref'd) (concluding that the trial court's ruling on a motion to suppress must be affirmed because the appellant "fail[ed] to challenge a ground stated by the trial court in its findings of fact and conclusions of law"); see also State v. Aviles, No. 10-07-00371-CR, 2008 WL 976955, at *1-2 (Tex. App- Waco Apr. 9, 2008, no pet.) (mem. op., not designated for publication) (explaining that because the State, as the appellant, failed to challenge each ground for the trial court's ruling granting a motion to suppress the issue was waived).
The Texas Court of Criminal Appeals recently granted petition for review considering whether Texas Code of Criminal Procedure article 14.03(a)(1) (providing for the authority of peace officers to arrest individuals when found in suspicious places and the officer has probable cause to believe a breach of the peace was committed) requires exigent circumstances before an officer may make an arrest. See McGuire, 586 S.W.3d at 458.
The Texas Court of Criminal Appeals cause number is PD-0984-19; the case was submitted for consideration without oral argument on April 8, 2020.
On its own motion, this Court, having reexamined and reconsidered the documents on file, issues the following ruling. This appeal is ABATED until such time as the Texas Court of Criminal Appeals issues its opinion in the direct appeal on the aforementioned cause. After that opinion issues, we direct the State to promptly file a motion to reinstate the appeal, which shall reference and include a copy of the opinion issued by the court of criminal appeals.