Carl Pinner v. State

NO. 07-08-0108-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 7, 2008

______________________________

CARL PINNER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

NO. 3748; HONORABLE FELIX KLEIN, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

ON ABATEMENT AND REMAND

          A jury convicted appellant Carl Pinner of three counts of aggravated sexual assault in violation of Penal Code section 22.011(B)(i)(ii)(iii). Tex. Penal Code Ann. § 22.011(B)(i)(ii)(iii) (Vernon Supp. 2007). It sentenced him to life in prison and assessed a $10,000 fine on each count. Appellant appeals his conviction through two issues. In his first issue, he asserts the trial court erred in denying his pretrial motion to suppress a written confession because the confession was not voluntary but the product of threats and coercion.

          Prior to trial, appellant filed a written motion seeking suppression of all written and verbal statements he made to law enforcement and “others.” According to appellant’s motion, any statements were obtained in violation of article 38.22 of the Code of Criminal Procedure as well as specified provisions of the Untied States and Texas Constitutions. On the day of trial, the court conducted a hearing of appellant’s motion to suppress. The State called no witnesses but the statement in question was admitted for the hearing through appellant on cross-examination. Appellant’s testimony consisted primarily of the events he contends establish his claim of involuntariness. At the conclusion of appellant’s testimony, the court orally denied the motion to suppress. The court did not reduce its oral rendition to writing nor did it issue findings of fact and conclusions of law.

          When the voluntariness of a statement is challenged, article 38.22, section 6 of the Code of Criminal Procedure requires the trial court make written findings of fact and conclusions of law regarding the voluntariness of the challenged statement. Tex. Code Crim. Proc. Ann. art. 38.22 § 6 (Vernon 2005); Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App. 2005). The findings and conclusions are mandatory whether or not the defendant objected to their absence. Urias, 155 S.W.3d at 142; Wicker v. State, 740 S.W.2d 779, 783 (Tex.Crim.App. 1987), cert. denied, 485 U.S. 938, 108 S. Ct. 1117, 99 L. Ed. 2d 278 (1988). “[T]he trial court need not make findings of fact with minute specificity as to every alleged and hypothetical possibility for physical or mental coercion. But the 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.” Wicker, 740 S.W.2d at 783 (citations and internal quotation marks omitted). In the absence of findings to support a trial court’s ruling on the issue of voluntariness, the appeal must be abated with directions to the trial court to reduce to writing its findings and conclusions on the disputed issues surrounding a defendant’s written confession. Id. at 784.

          We, therefore, abate this appeal and remand the case to the trial court with directions that it make written findings of fact and conclusions of law regarding the voluntariness of appellant’s statement. The trial judge may review the reporter’s record to refresh his recollection of the reasons for his ruling on the issue of voluntariness. See Wicker, 740 S.W.2d at 784. The findings and conclusions shall be included in a supplemental clerk’s record to be filed with the clerk of this court on or before September 12, 2008. On request, the clerk of this court shall make the reporter’s record of the suppression hearing and trial available to the judge of the trial court.

          If appellant finds, after reviewing the trial court’s findings and conclusions, it necessary to amend or supplement his brief, his amended or supplemental brief shall be filed with the clerk of this court within thirty days of the date the supplemental record is filed. Tex. R. App. P. 38.6(a). If appellant files an amended or supplemental brief, the State shall have thirty days thereafter to file a brief in response.

          It is so ordered.

 

                                                                                      Per Curiam

Do not publish.

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NO. 07-10-00296-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL A

 

DECEMBER 16, 2010

 

 

SCOTTIE DWAYNE HADNOT, APPELLANT

 

v.

 

THE STATE OF TEXAS, APPELLEE

 

 

 FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY;

 

NO. 47,179-A; HONORABLE ROBERT P. BROTHERTON, JUDGE

 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

 

 

ORDER OF ABATEMENT AND REMAND

            On October 21, 2010, the Court received notice from appellant, Scottie Dwayne Hadnot, that the reporter’s record in this case was incomplete in that it did not include the transcript from the hearing on appellant’s motion to suppress.  Appellant’s counsel provided us a copy of a letter specifically addressed to the court reporter that was at the suppression hearing, Dawn Eaton, requesting that she prepare a supplemental reporter’s record containing the transcript of that hearing.  On November 22, 2010, appellant notified this Court that he had still not received the supplemental reporter’s record nor any response from Eaton.  As a result, this Court contacted the Official Court Reporter for the 30^th District Court of Wichita County, Texas, Leslie C. Ryan-Hash, regarding the missing transcript.  In response, Ryan-Hash sent a certified letter, return receipt requested, to Eaton requesting the preparation of the supplemental reporter’s record.  On December 7, 2010, Ryan-Hash notified this Court that she had not received a response from Eaton concerning Ryan-Hash’s request for preparation of the supplemental record.  A tracking search for this letter reflects that notice was left at the last known address of Eaton, but that the letter had not been picked up by Eaton. 

For these reasons, we now abate and remand this case to the trial court to determine whether the portion of the reporter’s record containing the transcript of the July 25, 2008 motion to suppress hearing has been lost or destroyed.  Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) if, without appellant’s fault, a significant portion of the court reporter’s notes and records has been lost or destroyed or is inaudible; (2) if so, whether the lost, destroyed, or inaudible portion of the reporter’s record is necessary to the appeal’s resolution; and (3) whether the lost, destroyed, or inaudible portion of the reporter’s record can be replaced by agreement of the parties.  See Tex. R. App. P. 34.6(f).  The trial court should enter findings of fact and conclusions of law as to each of these determinations as well as any other issues that might help guide this Court in determining whether a new trial need be ordered. 

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file the above-identified findings of fact and conclusions of law and any other findings, conclusions, or recommendations, and cause them to be included in a supplemental clerk=s record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter=s record; and (4) cause the records of these proceedings to be sent to this Court.  In the absence of a request for extension of time from the trial court, the supplemental clerk=s record and supplemental reporter=s record, including any orders, findings, conclusions, and recommendations, are to be sent so as to be received by the Clerk of this Court not later than January 17, 2011.

 

 

                                                                                                Per Curiam

 

Do not publish.