In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-11-00444-CR
____________________
TERRI LEANN DRONET, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CR26673
________________________________________________________ _____________
ORDER
In this appeal Terri Leann Dronet has challenged the voluntariness of her
confession. On submission of the appeal, it became apparent that the judge who
heard the motion to suppress did not make findings of fact and conclusions of law.
See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West 2005). At the Court’s
request, the parties stated their positions regarding whether the appeal must be
abated and the case remanded to the trial court for a new suppression hearing and
findings of fact and conclusions of law. See Garcia v. State, 15 S.W.3d 533, 536-
1
37 (Tex. Crim. App. 2000). The State contends that the appellant procedurally
defaulted by failing to request written findings. See State v. Terrazas, 4 S.W.3d
720, 728 (Tex. Crim. App. 1999). In the alternative, the State argues that because
the judge who heard the motion to suppress is deceased, the present trial judge may
prepare findings of fact and conclusions of law without explicit credibility
determinations. Appellant notes that she has not requested findings of fact and
conclusions of law; moreover, she has not requested a new suppression hearing
before the present trial judge.
The most recent published opinion of the Court of Criminal Appeals on this
issue states that article 38.22, § 6 is mandatory and requires that findings be made
without regard to whether the defendant has objected to the absence of the omitted
findings. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004); see also
Tex. Code. Crim. Proc. Ann. art. 38.22, § 6. It appears the Court of Criminal
Appeals considers entry of findings a duty of the court that arises whether or not
the parties request findings. The Court of Criminal Appeals has held that it is not
appropriate for a judge, over the objection of the appellant, to make findings of fact
and conclusions of law that require an evaluation of credibility and demeanor
based solely upon a record of a previous hearing at which a different judge
presided. Garcia, 15 S.W.3d at 535-36. Neither an objection to the lack of findings
2
nor a request for a new suppression hearing has been made by the appellant;
consequently we are presented only with the necessity of complying with the
statute and obtaining findings sufficient to conduct an appellate review of the
voluntariness of the confession.
It is, therefore ORDERED that the appeal is abated and the case is remanded
to the trial court for further proceedings relating to a determination of the
voluntariness of the appellant’s confession. See Tex. R. App. P. 44.4. At the
appellant’s request, the trial court may conduct a new suppression hearing. The
trial court shall make findings of fact and conclusions of law. See Tex. Code Crim.
Proc. Ann. art. 38.22, § 6. A supplemental clerk’s record, containing the trial
court’s findings of fact and conclusions of law, together with a supplemental
reporter’s record of any hearing conducted by the trial court, shall be filed with the
Court of Appeals by April 1, 2013. The appeal will be reinstated without further
order of the Court when the supplemental record is filed.
The appellant may address the trial court’s findings in a supplemental brief,
which must be filed within thirty days after the supplemental record is filed. If the
appellant files a supplemental brief, the State may file a supplemental brief in
response, due thirty days after the appellant files her supplemental brief.
3
ORDER ENTERED February 28, 2013.
PER CURIAM
Before Gaultney, Kreger, and Horton, JJ.
4