State v. Guo

SAM NUCHIA, Justice,

dissenting.

Because I believe the trial court’s actions in this case had the effect of denying the State its right to an appeal, I respectfully dissent.

The Trial Court’s Failure to File Findings of Fact

In points of error ten, 11, 16, 17, and 22, the State contends the trial court erred by not filing findings of facts and conclusions of law or designating the basis of its ruling. After the motion to suppress was granted, the State requested findings of fact and conclusions of law, and even submitted a set of proposed findings for the trial court to sign. Nonetheless, the trial court did not make any findings.

As a general rule, in the absence of trial court findings of fact, we are unable to hold that the trial court abused its discretion in granting a defendant’s motion to suppress. State v. Cardenas, 36 S.W.3d 243, 245 (Tex.App.-Houston [1st Dist.] 2001, pet. filed); State v. Davis, 991 S.W.2d 882, 883 (Tex.App.-Houston [1st Dist.] 1999, no pet.). This is usually true because when the trial court rules in the defendant’s favor without explanation, there is “not necessarily a ‘concrete’ set of facts that can be implied from such a ruling.” State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000). “The trial court may have disbelieved the officer on at least one material fact, or the trial court may be in a situation in which it does not know what exactly the facts are, but it does know (on the basis of demeanor, appearance, and credibility) that they are not as the witness describes.” Id. This is even more true in situations where the State’s evidence is controverted. It could be that the judge believed the defendant, rather than the police officers, on a key piece of evidence. It could be that the trial judge did not know who to believe, but found the State’s version of the facts less credible that the defendant’s. Or, it could be that *670 the trial judge found the State’s entire case to be completely incredible.

It is true that in rare instances, we can review the trial court’s ruling granting a motion to suppress, even without findings of fact. See State v. Cardenas, 36 S.W.3d at 245 (holding that findings of fact not necessary because trial court explicitly accepted State’s facts and articulated a legal basis for its ruling); State v. Fudge, 42 S.W.3d 226, 230 (Tex.App.-Austin 2001, no pet.) (stating de novo review appropriate because trial court expressly found officer’s testimony credible). This is not such a case. The evidence was controverted on many issues, such as whether the briefcase was opened or closed at the time the police first searched it and whether the police knew, before searching the briefcase, that it belonged to George Guo. Furthermore, even on evidence that was not controverted, such as the circumstances surrounding Guo’s arrest, it is possible that the trial court simply did not believe the police officers’ testimony. In the absence of findings of fact, we are unable to determine whether the trial court abused its discretion in granting Guo’s motion to suppress. Davis, 991 S.W.2d at 883 . As the majority says, it could be that the trial court did not believe the police officers on some key piece of evidence, but, as the majority does not say, it could also be that the trial court misapplied the law to the facts.

Without findings of fact, the State’s right to appeal the granting of a motion to suppress is meaningless. See Tex.Code Ceim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp.2001). The legislature could not have intended to grant the State an interlocutory review of a trial court’s order, only to have that review denied by a trial court’s failure to make the findings necessary for the appellate court to reach the merits of the State’s appeal, when requested by the State. See Childress v. State, 784 S.W.2d 361, 366 (Tex.Crim.App.1990) (stating court would “not presume the legislature did a useless thing.”). This Court has the obligation to insure that the trial court’s failure to make findings does not prevent a proper presentation of the State’s interlocutory appeal. Rule 44.4 of the Texas Rules of Appellate Procedure provides:

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) 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 has not occurred.

Tex.R.App. P. 44.4 (emphasis added).

We are aware of cases holding that a defendant is not entitled to findings of fact and conclusions of law after the trial court denies a motion to suppress. See Guadian v. State, 420 S.W.2d 949, 952 (Tex.Crim.App.1967) (holding trial court did not err by refusing to make findings of fact after denying defendant’s motion to suppress); Kadlec v. State, 704 S.W.2d 526, 528 (Tex.App.-Dallas 1986, pet. ref'd) (same). These cases are distinguishable because the defendant’s right to appeal is not dependent on findings of fact made after the denial of a motion to suppress. The defendant can go to trial, and, on direct appeal, complain that the evidence he sought to suppress was erroneously admitted. Furthermore, the defendant is entitled to an instruction to the jury that it shall disregard any evidence that it finds was illegally obtained. See Texas Code CRiM. Proc. *671 Ann. art. 28.23 (Vernon Pamph.2001). Thus, there is always the possibility that the jury will disagree with the trial judge’s ruling on the motion to suppress and refuse to consider the evidence, even though it was admitted at the trial.

The State, however, has no such rights. The State’s only opportunity for review of a trial judge’s adverse ruling on a motion to suppress comes by way of its interlocutory appeal of the ruling. By failing to make findings of fact, after proper request by the State, the trial court has, effectively, insulated its ruling from appellate review. 1

In State v. Ross, the State argued that trial court’s could insulate their rulings on motions to suppress by merely not filing findings of fact. 32 S.W.3d at 858 . The Court of Criminal Appeals responded by stating:

Our holding does nothing to limit the State’s right to appeal under article 44.01(a)(5). The State is just as free to make the appeal today as it was before the decision today. If a non-prevailing party wishes to avoid the effects of these appellate presumptions, then it should attempt to get the rationale for the trial court’s ruling on the record through either a verbal explanation at the hearing or express findings of fact and conclusions of law.

Ross, 32 S.W.3d at 858 (emphasis added). In this case, the State did exactly as the Ross court suggested — it timely requested findings of fact and conclusions of law, and even went so far as to submit proposed findings to the judge. Nevertheless, the trial court refused to make any findings.

In the concurring opinion to Ross , Justice Womack, joined by Justices Keller and Keasler, suggested the following solution to the continuing problem of reviewing motions to suppress without findings of fact:

The simple and correct resolution of the recurring problem is to say that, when the party that is challenging a trial court’s ruling fails to request findings of fact, an appellate court will not reverse a ruling that could be reasonably based on adverse findings of fact. If we couple this rule with a rule that the failure to make findings of fact, on request that was timely presented and refused over objection, is an independent ground for reversal of the trial court’s judgment, we will have taken a step toward the just resolution of these appeals-a resolution that is based on the reality of what happened rather than on assumptions that may be entirely fictitious.

Ross, 32 S.W.3d at 859-60 (Womack, J., concurring).

I agree with Judge Womack that findings of fact should be mandatory when properly and timely requested by the State. However, reversal is not required. Rule of Appellate Procedure 44.4 mandates that we abate the case to allow the trial court to remedy the problem. See also Rocha v. State, 16 S.W.3d 1, 10 (Tex.Crim.App.2000) (holding abatement proper when trial court erroneously fails to make findings pursuant to Tex.Code Crim. P. Ann. art. 38.22).

Therefore, rather than affirming the trial court’s ruling, I would abate the appeal and remand the case with instructions for *672 the trial court to make findings of fact and conclusions of law in connection with its ruling on the motion to suppress.

. The concurring opinion advocates providing findings of fact to both the State and the defendant upon timely request. However, it does not address the fact that the defendant already has several advantages over the State in the area of suppression rulings, including (1) the right to a trial on the merits and an appeal therefrom, and (2) an instruction to the jury under Art. 28.23 of the Code of Criminal Procedure that it shall not consider evidence that it finds was illegally obtained.