NO. 07-08-0475-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 1, 2009
______________________________
JOSEPH G. NUNEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-415,790; HON. JIM BOB DARNELL, PRESIDING
_______________________________
Abatement and Remand
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Pending before the court is Joseph G. Nunez’ motion to abate and remand the appeal so that the trial court can enter findings pursuant to article 38.22 of the Texas Code of Criminal Procedure. We grant the motion.
When a trial court fails to make findings of fact and conclusions of law in compliance with art. 38.22, §6 of the Texas Code of Criminal Procedure, we must abate the appeal and remand the cause to permit it to comply with the statute. See Tex. Code Crim. Proc. Ann. art. 38.22, §6 (Vernon 2005). And, because the trial court at bar overruled appellant’s complaints about the voluntariness of his statement, the requirements of art. 38.22, §6 of the Texas Code of Criminal Procedure were triggered here. Id. Thus, abatement and remand is necessary. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2005) (noting the mandatory nature of art. 38.22, §6 and requiring a trial court to file findings of fact and conclusions of law regardless of whether the defendant requested them or objected to their absence); Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim. App. 1987) (holding the same).
Accordingly, the appeal is abated and the cause is remanded to the trial court. The trial court is directed to take all steps reasonably necessary to comply with art. 38.22, §6 of the Texas Code of Criminal Procedure, which steps include the creation of pertinent findings of fact and conclusions of law addressing the voluntariness of appellant’s statements and its decision to reject the challenge posed by appellant. The trial court is further ordered to undertake all steps reasonably necessary to assure that complete reporter’s and clerk’s records of this cause are developed and filed with this court. These records are to include the aforementioned findings of fact and conclusions of law. Furthermore, each of the actions we direct the trial court to undertake must be performed by October 30, 2009, unless that deadline is extended by this court. So too must it assure that both the complete clerk’s and reporter’s records in this cause are filed with this court by the same date.
The cause is abated and remanded to the trial court for further proceedings in accordance with this order.
Per Curiam
Do not publish.
of the DPRS's suit pursuant to section 263.401(a). To prevail on her claim of ineffective assistance of counsel, however, Savage has the burden to affirmatively prove both deficient performance by counsel and prejudice from the allegedly deficient performance. See Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App. 1999), citing Strickland v. Washington, 466 U.S. 668,_, 104 S. Ct. 2052, 2066-68, 80 L. Ed. 2d 674 (1984). To prove prejudice, she must prove a reasonable probability that but for counsel's alleged error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986).
Even had counsel moved for and obtained dismissal of the DPRS's claims for termination of Savage's parental rights pursuant to section 263.401(a), (2) Savage does not assert or demonstrate that the dismissal would have altered the trial court judgment terminating her parental rights based on White's claims. Accordingly, she has failed to demonstrate prejudice from counsel's alleged ineffective assistance. Issue three is overruled.
CONCLUSION
We affirm the Order of Termination.
Phil Johnson
Chief Justice
1. Further reference to a section of the Texas Family Code will be by reference to "section __."
2. Because we do not address the merits of Savage's challenges to the trial court's jurisdiction, we express no opinion on whether the trial court's ruling would have been correct had the court sustained such a jurisdictional challenge, had one been presented.