IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,936
TERENCE TRAMAINE ANDRUS, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM CAUSE NO. 09-DCR-051034
IN THE 240 TH DISTRICT COURT
FORT BEND COUNTY
Y EARY, J., filed a concurring statement in which H ERVEY and N EWELL, JJ.,
joined.
CONCURRING STATEMENT
Today the Court in this capital murder appeal directs the trial court to prepare findings
of fact with respect to whether Appellant’s statement to the police “was voluntarily made.”
T EX. C ODE C RIM. P ROC. art. 38.22, § 6. The Court rightly regards such findings to be
mandatory, and Appellant does not have to object to their absence before we may order the
trial court to make them. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004). But
we also recently held in a unanimous opinion “that the requirement for 38.22 findings applies
Andrus — 2
whenever there is a challenge to a statement’s voluntariness.” Vasquez v. State, 411 S.W.3d
918, 920 (Tex. Crim. App. 2013) (emphasis added). Thus, while an appellant does not have
to object to the absence of Section 6 findings under Article 38.22 before this Court may order
the trial court to make them, id., unless “a question is raised” at the trial court level, there is
no issue of “voluntariness” in the case and therefore nothing for the trial court to make
findings about. Cf. Oursbourn v. State, 259 S.W.3d 159, 175 (Tex. Crim. App. 2008) (“The
language ‘where a question is raised’ contrasts with the language found in Article 38.22, §
7 and Article 38.23 which speaks of the evidence raising an issue. Because raising a
‘question’ is what triggers the trial court’s duty under Section 6 to conduct a hearing outside
the presence of the jury, the only reasonable reading of this language is that a ‘question is
raised’ when the trial judge is notified by a party or raises on his own an issue about the
voluntariness of the confession.”).
In the instant case, although Appellant seems to have raised a pure voluntariness
challenge to the admissibility of his statement as one argument in one of his pre-trial motions
to suppress, he did not develop that particular challenge during the evidentiary hearing, and
he failed to obtain a ruling on that basis from the trial court. He essentially abandoned that
challenge. Consequently, I would not order the trial court in this case to enter findings of
fact with respect to that issue.
But the Court has not limited the Article 38.22, Section 6 requirement to issues of pure
due process voluntariness. In recent years, the Court has also required Article 38.22, Section
Andrus — 3
6 findings when a “question is raised” with respect to police adherence to many of the
prophylactic rules that are designed to ensure that statements are voluntarily obtained (the
violation of which will trigger the exclusionary rule regardless of whether any resulting
statement is actually involuntary for due process purposes). For example, in Urias, in which
the defendant complained that his confession “was obtained in violation of his Fifth
Amendment right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966)[,]” we concluded that “[t]he proper procedure is that the trial judge
be directed to make the required written findings of fact and conclusions of law.” 155
S.W.3d at 142. And in Vasquez, a capital murder appeal, we remanded to the trial court to
enter findings of fact on the issues of whether the defendant had received his Miranda
warnings and, if he had, whether the police had utilized a two-step interrogation process to
vitiate their efficacy in violation of Missouri v. Seibert, 542 U.S. 600 (2004). 411 S.W.3d
at 920. Neither Urias nor Vasquez was required to establish that his confession was actually
involuntary for due process purposes in order to prevail on their respective claims; even
though a pure claim of involuntariness was not involved in either case, this Court
nevertheless invoked Article 38.22, Section 6, to require the trial court to supply findings of
fact where there were none in the record.1
1
See also, e.g., Green v. State, 934 S.W.2d 92, 96-101 (Tex. Crim. App. 1996) (having abated
the appeal and remanded the cause for findings of fact from the trial court “regarding appellant’s
confession[,]” in Green v. State, 906 S.W.2d 937 (Tex. Crim. App. 1995), the Court went on to
address those issues, including not only a pure voluntariness claim, but also, among other things, a
(continued...)
Andrus — 4
Consistent with these cases, I agree with the Court’s decision today to require the trial
court to enter findings of fact under Rule 34.5(c)(2) of the Texas Rules of Appellate
Procedure.2 But I would limit the findings to the issues that were actually “raised” and
resolved in the trial court, namely, whether Appellant’s statement should have been
suppressed because 1) the interrogating officers did not honor his purported invocation of his
Fifth Amendment right to counsel and 2) the officers improperly continued to question him
after he had invoked his Fifth Amendment right to silence by terminating the interview.3
FILED: February 25, 2015
DO NOT PUBLISH
1
(...continued)
claim that the confession should have been suppressed because of a violation of the appellant’s Fifth
Amendment right to counsel during custodial interrogation, as explicated in Edwards v. Arizona, 451
U.S. 477 (1981)); Wicker v. State, 740 S.W.2d 779, 782 (Tex. Crim. App. 1987) (abatement for
findings was appropriate in a case in which the appellant raised issues of both pure voluntariness and
the failure to give Miranda warnings).
2
The doctrine of stare decisis requires us, at the very least, to “keep in mind the strong
preference for adhering to past decisions[.]” Ex parte Lewis, 219 S.W.3d 335, 338 (Tex. Crim. App.
2007).
3
These are the only two issues that the parties argued to the trial court at the conclusion of
the evidentiary hearing and the only two issues upon which the trial court explicitly ruled. Appellant
did not object to the trial court’s failure to rule on any other issue he contended was raised by his
motions to suppress.