Agustin Calderon v. State ( 2018 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Agustin Calderon v. The State of Texas
Appellate case number: 01-18-00422-CR
Trial court case number: 15CR3346
Trial court: 10th District Court of Galveston County
Appellant, Agustin Calderon, has filed a notice of appeal of his conviction for the
offense of capital murder. In a single issue in his brief, appellant challenges the trial
court’s denial of his motion to suppress his oral statements made to a law enforcement
officer, asserting that his “waiver of his Miranda rights” was not knowing, intelligent, and
voluntar[y].” He states that this issue “addresses the voluntariness of [his] waiver of his
Miranda Rights.” The State has filed a motion to abate the appeal and remand the case to
the trial court “with instructions to render specific findings of facts required under Article
38.22 Section 6 of the Code of Criminal Procedure.”1 We grant the motion.
The record shows that appellant filed a motion to suppress his statements,
asserting, in part, that they were “involuntary.” The trial court held a hearing on
appellant’s motion. Afterwards, the trial court signed an order denying the motion to
suppress and an order granting appellant’s request for findings of fact and conclusions of
law. However, the record does not reflect that the trial court made findings of fact or
conclusions of law, related to appellant’s motion to suppress, either written or dictated on
the record, as required by article 38.22, section 6.
Texas Code of Criminal Procedure article 38.22, section 6, provides, in pertinent
part:
If [a] statement has been found to have been voluntarily made and held
admissible as a matter of law and fact by the court in a hearing in the
absence of the jury, the court must enter an order stating its conclusion as
to whether or not the statement was voluntarily made, along with the
1
Appellant has not responded to the State’s motion.
specific finding of facts upon which the conclusion was based, which order
shall be filed among the papers of the cause.
TEX. CODE CRIM. PROC. art. 38.22, § 6 (West 2018) (emphasis added); see Urias v. State,
155 S.W.3d 141, 142 (Tex. Crim. App. 2005) (explaining “Article 38.22, § 6 ‘is
mandatory in its language and that it requires a trial court to file its findings of fact and
conclusions of law’” without regard to whether defendant objects to their absence);
Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim. App. 1987) (“[T]he 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.”). When
a trial court fails to make findings of fact and conclusions of law in compliance with
article 38.22, section 6, we must abate the appeal and remand the cause to permit
compliance with the statute. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6; Urias, 155
S.W.3d at 142 (remanding to court of appeals with instructions to require compliance);
Wicker, 740 S.W.2d at 784.
Accordingly, we grant the State’s motion, abate the appeal, and remand the case
for the trial court to enter written findings of fact and conclusions of law, separate and
apart from any docket sheet notations in this case, in conjunction with its denial of
appellant’s motion to suppress. The trial court may review the reporter’s record to refresh
its recollection of the reasons for its rulings on the issue of voluntariness. Wicker, 740
S.W.2d at 784. The trial court shall cause its findings and conclusions to be filed with the
trial court clerk within 30 days of the date of this order. We further order the trial court
clerk to file a supplemental clerk’s record containing the trial court’s findings of fact and
conclusions of law with this Court within 30 days of the date of this order.
This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket without further
order of the Court when the supplemental clerk’s record is filed in this Court.
It is so ORDERED.
Judge’s signature: __/s/ Russell Lloyd_____
 Acting individually  Acting for the Court
Date: __December 20, 2018____