Order filed August 8, 2013
In The
Eleventh Court of Appeals
__________
No. 11-13-00027-CR
__________
KEVIN SCOTT KELLERBY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 18509B
ORDER
Kevin Scott Kellerby, Appellant, has filed in this court a motion requesting
that we direct the trial court to prepare and enter findings of fact and conclusions of
law and that we grant an extension of the filing deadline on Appellant’s brief until
thirty days after the findings and conclusions have been filed in this court. The
motion is granted, and the appeal is abated.
The record shows that Appellant filed a motion to suppress an oral statement
made by Appellant during interrogation by a detective at the Taylor County Law
Enforcement Center. The trial court held a hearing on the motion to suppress and
denied the motion, but it did not enter findings of fact and conclusions of law. In
his motion to suppress, Appellant alleged that his statement was involuntary and
was made in violation of his rights.
When the voluntariness of a statement is challenged, the trial court is
required to make written findings of fact and conclusions of law as to whether the
statement was made voluntarily. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6
(West 2005). It is well settled that the language of Article 38.22, section 6 is
mandatory whether or not the defendant objects to the trial court’s failure to make
such findings and conclusions. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim.
App. 2004). The appropriate remedy on appeal is for the appellate court to abate
the appeal so that such findings and conclusions can be properly entered by the
trial court. Green v. State, 906 S.W.2d 937 (Tex. Crim. App. 1995); see
Bonham v. State, 644 S.W.2d 5, 8 (Tex. Crim. App. 1983).
Accordingly, we abate the appeal. The trial court is directed to enter written
findings of fact and conclusions of law regarding Appellant’s motion to suppress,
and the trial court clerk is instructed to file in this court a supplemental clerk’s
record containing such findings and conclusions on or before September 19, 2013.
Appellant’s Second Motion to Extend Time to File Appellant’s Brief and
Request for Findings of Fact and Conclusions of Law is granted. This appeal is
abated and will be reinstated upon the filing of the supplemental clerk’s record.
August 8, 2013 PER CURIAM
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
2