David Gonzales v. State ( 2017 )

Order filed November 16, 2017
In The
Eleventh Court of Appeals
__________
No. 11-17-00091-CR
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DAVID GONZALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-44,600
ORDER
Appellant has filed in this court an unopposed motion to abate this appeal and
remand the cause to the trial court to address two concerns: an incomplete reporter’s
record and the lack of findings of fact and conclusions of law related to Appellant’s
motions to suppress. The motion is granted, and the appeal is abated.
As asserted by Appellant, the reporter’s record is incomplete. It appears that
Defendant’s Exhibits No. 4 and No. 7 from the suppression hearing, as well as
State’s Exhibit No. 6 from the trial on the merits, were not included in the reporter’s
record filed in this cause. We abate the appeal and remand the cause to the trial court
for the trial court to determine whether these hearings were recorded and, if so, to
direct the court reporter to prepare a supplemental reporter’s record of each hearing.
If the parties have a dispute involving the items that appear to be missing from the
appellate record or if the reporter’s records have been lost or destroyed, the trial
court is directed to resolve that dispute in compliance with TEX. R. APP. P. 34.6(e),
(f). See Amador v. State, 221 S.W.3d 666, 676–77 (Tex. Crim. App. 2007);
Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003); Pierce v. State, No. 03-
09-00487-CR, 2010 WL 3719242 (Tex. App.—Austin 2010, no pet.) (mem. op., not
designated for publication).
Additionally, the record shows that Appellant sought to suppress all evidence
obtained as a result of Appellant’s arrest and detention and any statement made by
Appellant. The trial court held a hearing on Appellant’s motion to suppress and, at
the end of the hearing, denied the motion. Appellant requested findings of fact and
conclusions of law, but the trial court did not enter any findings or conclusions.
Pursuant to Appellant’s request, we abate the appeal so that such findings and
conclusions can be properly entered by the trial court. Green v. State, 906 S.W.2d
937 (Tex. Crim. App. 1995); see State v. Cullen, 195 S.W.3d 696, 699–700 (Tex.
Crim. App. 2006); Bonham v. State, 644 S.W.2d 5, 8 (Tex. Crim. App. 1983).
Accordingly, we grant the unopposed motion to abate the appeal and remand
the cause. The trial court is directed to enter written findings of fact and conclusions
of law regarding Appellant’s motion to suppress, and the trial court clerk is
instructed to file in this court a supplemental clerk’s record containing such findings
and conclusions. If necessary, the trial court is also directed to make appropriate
findings and recommendations with respect to the missing exhibits. Such findings
and recommendations and any order entered by the trial court shall also be included
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in the supplemental clerk’s record. The court reporter is directed to prepare and
forward to this court a supplemental reporter’s record containing the missing
exhibits and, if a hearing is held in the trial court with respect to this order, a
supplemental reporter’s record from such hearing. The supplemental records are
due to be filed in this court on or before December 18, 2017.
PER CURIAM
November 16, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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