Landor, Mabry J., Iii ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-76,328

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MABRY J. LANDOR, III, Appellant

v.

THE STATE OF TEXAS

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ON DIRECT APPEAL FROM CAUSE NO. 1194597 IN THE 209^TH DISTRICT COURT HARRIS COUNTY

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Per Curiam.

ORDER

The above-styled and numbered cause is pending before this Court as a result of appellant's capital murder conviction and resulting sentence of death in the 209^th District Court of Harris County, Cause No. 1194597, styled The State of Texas v. Mabry J. Landor, III. The State has filed a motion requesting this Court "to abate the appeal and remand the cause to the trial court so that the trial judge may enter findings of fact and conclusions of law regarding the voluntariness of appellant's confession."

When a question is raised as to the voluntariness of an accused's statement, Article 38.22, § 6, requires the trial court to "enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause." The State asserts that the trial court conducted a hearing on appellant's pretrial motion to suppress his videotaped statement and denied the motion without entering findings of fact and conclusions of law.

The State asks that we abate the appeal of this case in order for the trial court to supplement the record with the required findings and conclusions. However, under Texas Rule of Appellate Procedure 34.5(c)(2), an appellate court can order the trial court to "prepare and file findings of fact and conclusions of law as required by law" (emphasis added) and have the clerk supplement the record with those findings and conclusions without abating the case. Because the findings and conclusions the State seeks to include in the record were required by law to be made, the record can simply be supplemented without abating the case.

Therefore, the trial court is directed to prepare and file findings of fact and conclusions of law as required by Article 38.22, § 6, regarding the voluntariness of appellant's statement. The trial court clerk must then prepare, certify, and file in this Court a supplemental clerk's record containing the findings and conclusions. The findings and conclusions are to be made, and the supplemental clerk's record is to be filed, within 20 days of the date of this order. See Tex. R. App. P. 34.5(c)(2). Appellant will then have 30 days after the filing of the supplemental clerk's record to file a supplemental brief in this Court.

IT IS SO ORDERED THIS THE 29^th DAY OF SEPTEMBER, 2010.

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