NUMBER 13-13-00479-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
STATE OF TEXAS, Appellant,
v.
LARRY GREEN, Appellee.
____________________________________________________________
On appeal from the 319th District Court
of Nueces County, Texas.
____________________________________________________________
ORDER OF ABATEMENT
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Order Per Curiam
Appellant, the State of Texas, has filed a motion requesting that this Court abate
this case and order the trial court to the enter findings of fact and conclusions of law in
support of its order granting appellee, Larry Green’s, motion to suppress. For the
reasons set forth below, we grant the State’s motion.
I. BACKGROUND
On August 2, 2013, the trial court held an evidentiary hearing on appellee’s motion
to suppress evidence obtained by police officers in a warrantless search and seizure.
The State called four witnesses to testify about what happened. Two officers with the
Corpus Christi Police Department searched a garage-type, wooden shed owned by
appellee’s parents and seized evidence that they discovered in the shed. 1 The State
sought to prove that the search and seizure were conducted lawfully based on the
effective consent of appellee’s parents, who according to the State, had actual authority
to consent to the search and seizure. In the alternative, the State sought to prove that
the police officers acted in good faith reliance on the apparent authority of appellee’s
parents to grant effective consent. Additionally, the State presented testimony to prove
that the police officers observed various items, including marijuana and other contraband,
in plain sight upon entering the garage-type shed after obtaining oral consent from
appellee’s parents. At that point, according to the State and its witnesses, the police
officers exited the shed and requested and obtained from appellee’s father a written and
signed consent form, which according to the State, rendered the search and seizure
lawful.
In support of his motion to suppress, appellee testified that he rented the shed from
his parents, that he had exclusive use and control of the premises, and that he was
occupying the premises as his personal residence. According to appellee, he protested
1 The police officers arrived at the premises to conduct a sex offender registration check in which
their main purpose was to confirm residency requirements and specifically to confirm appellee’s residency
at his last known address. Appellee has five prior convictions for possession of child pornography and a
prior conviction for aggravated assault with a deadly weapon on a peace officer.
2
when the police officers entered the premises and began to search for evidence based
on the written consent form signed by his stepfather. Appellee testified that he did not
consent to the search or seizure. Appellee also testified that the marijuana and other
contraband were not in plain sight when the police officers entered the shed.
After the testimony was concluded, the trial court heard the parties’ arguments.
The trial court asked the State a number of questions primarily focused on whether the
police officers had valid third party consent from appellee’s parents to search the garage-
type shed, where they found appellee concealed and observed the following items
purportedly in plain view: a plastic bag containing an unspecified amount of marijuana,
drug paraphernalia, syringes, cotton balls, and sundry items of a sexual nature, including
a DVD playing a pornographic movie, stained children’s clothing and underwear, a
vibrating child’s doll head, a lubricant attachment, doll parts located inside used children’s
underwear, magazines clippings of children and infants, and a cellular phone located
within a clear plastic bag, which was illuminated to show two nude small children bathing.
From the transcript of the hearing, it is clear that the trial court was concerned with
whether the police officers had lawfully conducted the warrantless search and seizure.
The trial court asked the State’s attorney, “Why wouldn’t they need a warrant to go in
there?” The State’s attorney responded that appellee’s stepfather had granted the police
officers valid consent to search both the home and the shed. The trial court expressed
concern that the shed was not attached to the home and had a different address posted
on it.
3
The trial court also expressed concern about the validity of the consent purportedly
granted by appellee’s parents. The trial court commented, “But the other testimony
regarding the parents, it seems to indicate that they didn’t give the consent, even though
they signed this [referring to State’s Exhibit 1, the consent form that appellee’s father had
signed]. I understand, there are some inconsistencies.” The State then argued that
even if appellee’s parents lacked actual authority to grant consent or the consent was not
granted voluntarily, the police officers acted reasonably in relying on the apparent consent
in good faith.
Next, the trial court questioned the State’s attorney about whether the police
officers got “the consent after they started going through [things] or before.” The State’s
attorney responded that the police officers’ testimony was that they obtained oral consent
before entering the shed. “However, once they found . . . [appellee] and located several
of these [aforementioned] items, they came back out and then asked for their written
consent.” The trial court then summed up the State’s account of what happened, “[So] .
. . they went in, when they started finding things they went out and thought better follow
up with a written consent?” The prosecution agreed. The following exchange then took
place:
THE COURT: Is that permissible?
[State’s attorney]: Absolutely, Your Honor. The oral consent is completely
valid. However, to be digging around through things [, the police officers]
probably needed a consent form.
THE COURT: See that is why I am asking. They had right to be here
because the sexual registration, they were there. They got oral consent to
be where they were. Then they went out to the other part, which was not
attached to the house, which had a number on it, and they went in, whether
4
you believe it was pushed, they went through a hole, whatever it was, they
got in and started seeing things and that’s when they got a written consent;
is that what you are saying?
[State’s attorney]: Yes, Your Honor.
THE COURT: And that takes care of all the problems, maybe?
[State’s attorney]: Well, yes. Because the Defendant’s father gave them
consent, written consent and oral consent to search, and those officers
relied on it on good faith. And again, the exclusionary rule is to avoid police
misconduct. If they cannot rely on consent given to . . . [them] by
homeowners, then what is the consent law for?
THE COURT: No, I agree. The oral consent. But when they went in and
found the other things, they saw they had to get a written consent.
The State agreed. Based on the foregoing, the State asked the trial court to deny the
motion to suppress.
Next, defense counsel argued as follows to the trial court:
[Defense counsel]: So what we have is, we have a situation, this is the type
of situation the case law talks about. When you have two passengers in a
car or two people in a residence in a home, like a husband and a wife, and
the husband says, “yeah, come search” and the wife says, “no, you can’t
search.” That, “no”, is a negative, that eliminates the rights of the officer to
rely on the consent.
In this particular case, counsel is saying that the officer had the right to rely
on the father’s statement to go and search. He didn’t say he said “go out
there and search”, he says, “you can go out there and look, that’s where he
works’.” Whether they want to believe that that meant to go in and search
the garage, I don’t know. Whether that means force the doors open, I don’t
know. To an officer maybe that’s their go ahead to do that. But, once they
got . . . [appellee] out of that corridor, out of that little room, he says, “Don’t
go through my things.” So if they had joint occupancy, he said, “Stop, don’t
do it”; they don’t have a consent. What happens, they don’t have a written
consent at that time either, Judge. Then the officer says I need or the
lieutenant decides, hey we better get a search warrant or I mean a consent
to search.
THE COURT: That’s why I asked.
5
[Defense counsel]: That’s right.
So then they go back to the house and they need the father and they say,
we need you to sign this document so we could go in there and legally
search, they’ve already searched; they already found the dope; they’ve
already made the arrest; so they don’t have a good faith standing to rely on
the consent of the father. The father did not and there is no written,
consent to search the house. The father tells you they searched the house,
“Did I stop them? No. You know, I am suppose[d] to respect the police, I
didn’t stop them. They went through the doors in the house, they weren’t
satisfied that he was staying there.”
Defense counsel then focused on the evidence that appellee had exclusive use of
the shed and argued that appellee’s parents therefore could not give the police officers
valid third party consent. According to defense counsel, “the only issue that would allow
the officers to search in this particular case, is if the officer[s] in good faith, relied on the
father’s consent to search, and I don’t think you got that from the evidence in this case.”
The State’s attorney responded as follows:
Your Honor, this Defendant intends to make a mockery of this Court. He
got up on the stand, he lied, and if you are basing -- if you’re challenging
the credibility of the officers, a reverend, a chaplain, and a woman with 14
years [of] experience versus a man who is a sex offender, with multiple
felonies, and who clearly lies, and misrepresents to the Court; you are
basically going at odds with two versions of what happened. The officers
said he never uttered a peep, he didn’t say “Don’t go through my things.”
He didn’t say anything like that. They relied on the father’s consent form
and they relied on the parents’ consent to search, and there’s nothing in the
record that make the officers liars and they have absolutely nothing to gain
from this case or to lose. Currently, he is right, it does come down to
whether or not he challenged the stop, the search, the actual, if he actually
spoke up about the search. The officer said he didn’t say a word. And
now he’s saying that he told his mom, “Tell them to stop going through my
things”, we didn’t hear any of that from the mom.
Your Honor, it’s pretty obvious what’s going on, this is a ruse, this is a way
to avoid being punished on a failure to register. Again, I go back to
standing, because this is a possession of marijuana case. We are here on
6
a failure to register, this evidence is for punishment, it’s not for the
introduction in guilt/innocence.
Your Honor, his parents came out here and said they’ve never gone back
there, they don’t use that garage ever, it is part of their property, they pay
taxes on it, they paid off the mortgage, but they’ve never gone back there?
How do the officers know to push a little on the door if the Defendant’s father
hadn’t told them how do it? It really just comes down to who you believe;
the officers, with years and years of experience, the reverend, or the sex
offender.
(emphasis added).
The trial court then ruled from the bench as follows:
Well, I’m not sure if it comes down to who is lying and who is not lying, that
often happens in trials, I know. I’m not sure I buy everything the Defendant
is selling. But the Court is experienced enough in these matters to know
that this comes down to, frankly, it’s a legal issue. It has nothing to [d]o
with the officers or whether I like them or not, I’m sure they’re fine gentlemen
and ladies and they are doing what they are suppose[d] to be doing. But
based on the case law, as I understand it, the Court is going to grant the
motion to suppress. So that’s where we are. It has nothing to do with
anything that I granted this motion to suppress, that just leaves it as a
registration case, and I assure you that’s not going away.
On August 21, 2013, the trial court entered a written order granting appellee’s
motion to suppress. The order did not state the basis for the trial court’s ruling. The
State filed its notice of appeal on September 4, 2013. On November 13, 2013, the State
filed its proposed findings of fact and conclusions of law. The record does not reflect any
action by the trial court on the State’s proposed findings and conclusions. The record
also does not reflect that the State presented its proposed findings and conclusions to the
trial court or that it did so timely.
On December 27, 2013, the State filed its appellate brief in this cause. On appeal,
the State argues that appellee’s father had actual authority to consent to the search of his
7
property, which included the shed, and that the police officers reasonably believed that
appellee’s father had apparent authority to consent to the search. The State argues that
once inside the shed, the police officers observed several seized items that were in plain
view, which the State explains, is a well cited exception to the search warrant requirement.
Based on the foregoing, the State asserts that the trial court erred in granting appellee’s
motion to suppress and requests that this Court vacate the trial court’s suppression order.
In the alternative, the State requests that the case be abated and remanded for findings
of fact and conclusions of law.
On March 16, 2014, appellee filed his appellate brief. Appellee argues that “[t]he
trial court was of the opinion that this was a legal issue that would not come down to who
is lying or not.” Appellee argues further that he had a reasonable expectation of privacy
in his leasehold (i.e., the shed) and therefore has standing to contest the warrantless
search and seizure conducted in his private leasehold. According to appellee, his
stepfather did not have actual authority to consent to a police search of appellee’s private
leasehold. Appellee also argues that the State cannot rely on its alternative argument
that appellee’s father had apparent authority to consent because it did not raise that issue
before the trial court and because the police officers’ remedial actions do not support that
theory. Finally, appellee argues that the State cannot rely on the plain view doctrine
because the police officers did not discover anything in “plain view” until after they had
entered and were inside the shed.
On May 5, 2014, the State filed a motion asking this Court to abate this case and
remand it to the trial court for the entry of findings of fact and conclusions of law in support
8
of the trial court’s suppression order. In the motion, the State contends that upon its
request as the losing party in a motion to suppress proceeding, it is entitled to findings of
fact and conclusions of law, as set forth in State v. Cullen, 195 S.W.3d 696 (Tex. Crim.
App. 2006). According to the State, the Cullen requirement places no time limit on such
a request.
On May 8, 2014, appellee filed his motion in opposition to the State’s motion to
abate and remand. Appellee argues that the State’s request is not timely because it was
not made within twenty days of the suppression order. Appellee requests that this
appeal move forward and be decided based on the record before this Court.
II. ANALYSIS
As set forth above, the State has requested that this Court abate the case and
order the trial court to enter findings of fact and conclusions of law in support of its
suppression order.
A. Applicable Law & Standard of Review
“[F]actual findings are who did what, when, where, how, or why.” State v.
Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008). “They also include credibility
determinations.” Id. “They do not include legal rulings on ‘reasonable suspicion’ or
‘probable cause.’” Id.
Historically, “when the trial court fails to file findings of fact, we view the evidence
in the light most favorable to the trial court’s ruling and assume that the trial court made
implicit findings of fact that support its ruling as long as those findings are supported by
the record.” Cullen, 195 S.W.3d at 698. However, the Texas Court of Criminal Appeals
9
has observed that “[t]he refusal of trial courts to enter findings of fact when timely
requested by the State leaves appellate courts with nothing to review except a one-word
ruling and forces the courts of appeals to make assumptions about the trial court’s ruling.”
Id. The Court has also observed, “[t]he ruling could be based on a mistake of law, on
the trial court’s disbelief of the testimony presented, or even on a clerical error.” Id.
“There is the possibility that we are basing our entire appellate review on the wrong word
being circled.” Id. Based on the foregoing, the Court concluded in Cullen that “the
proper solution to this problem is to require the trial courts to enter findings of fact and
conclusions of law when ruling on a motion to suppress evidence.” Id.
In Cullen, the Court noted that “Rule 44.4 [of the Texas Rules of Appellate
Procedure] authorizes the court of appeals to remand the case to the trial court so that
the court of appeals is not forced to infer facts from an unexplained ruling.” Id. (citing
TEX. R. APP. P. 44.4). The Court also noted that “the efficient administration of justice
will be served by a requirement that trial judges respond to a request for findings of fact
and conclusions of law.” Id. at 699. In Cullen, the Court articulated the following rule:
Effective from the date of this opinion, the requirement is: upon the request
of the losing party on a motion to suppress evidence, the trial court shall
state its essential findings. By “essential findings,” we mean that 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.
Id. In Cullen, the Court also noted that “the trial court has 20 days from the date of its
ruling in which to file findings of fact if it has not already made oral findings on the record.”
Id. at 699–700. This suggests that the losing party will forfeit its right to findings of fact
and conclusions of law if it fails to request them within twenty days of date that the trial
10
court rules on the motion to suppress; however, subsequent decisions have clarified that
this is not the case.
For instance, in State v. Elias, the Court held that even if the losing party does not
request findings of fact and conclusions of law, “the trial court, once having taken it upon
itself to enter specific findings and conclusions sua sponte, . . . assumed an obligation to
make findings and conclusions that were adequate and complete, covering every
potentially dispositive issue . . . .” State v. Elias, 339 S.W.3d 667, 676 (Tex. Crim. App.
2011). Then, in State v. Saenz, the Court held that “an appellate court must abate for
additional findings of fact when a party has requested findings of fact and the findings that
are made by a trial court are so incomplete that an appellate court is unable to make a
legal determination.” State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim. App. 2013).
Accordingly, “reviewing courts need not presume, assume, or guess at what historical
facts a trial judge actually found when making a ruling in a motion to suppress hearing.”
State v. Mendoza, 365 S.W.3d 666, 671 (Tex. Crim. App. 2012). Our decisions must be
“based on the reality of what happened rather than on assumptions that may be entirely
fictitious.” Id. (quotation omitted).
B. Discussion
Despite the new requirement that trial courts must enter findings of fact and
conclusions of law in support of their suppression rulings upon the timely request of the
losing party, the parties dispute whether Cullen and its progeny require this Court to abate
and remand this case to the trial court for it to enter findings and conclusions. For the
11
reasons set forth below, we agree in part with the positions advanced by both sides. We
begin by noting the shortcomings in the State’s position.
First, the State has not identified any disputed issue of fact that would be
dispositive to the appeal. State v. Weaver, 349 S.W.3d 521, 528 n.34 (Tex. Crim. App.
2011) (declining to remand the case to the trial court “to enter a specific finding on a
disputed fact that is dispositive to the appeal” after concluding “that, based on the record,
[the fact] is not in dispute”). In support of its motion, the State merely asserts that under
Cullen, it is entitled to findings of fact and conclusions of law upon its request as the losing
party and that there is no requirement that the request be made timely. Other than that,
the State has not explained why the relief it requests is necessary and appropriate in this
case.
Second, in decisions issued after Cullen, the Texas Court of Criminal Appeals has
continued to consider whether the losing party “timely requested findings and conclusions
from the trial court.” State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006) (stating
that “when the trial court makes no explicit fact findings and neither party has timely
requested findings and conclusions from the trial court . . . , the appellate court implies
the necessary fact findings that would support the trial court’s ruling if the evidence
(viewed in the light most favorable to the trial court’s ruling) supports these implied fact
findings”) (emphasis added). In this case, the State waited nearly three months after the
trial court entered its suppression order before it submitted its proposed findings of fact
and conclusions of law. In Cullen, the Texas Court of Criminal Appeals stated that after
ruling on a motion to suppress, the trial court has twenty days to enter findings and
12
conclusions. Cullen, 195 S.W.3d at 699–700 (“[T]he trial court has 20 days from the date
of its ruling in which to file findings of fact if it has not already made oral findings on the
record.”). Here, the State’s proposed findings and conclusions were filed well outside
the twenty day window.
Third, the Texas Court of Criminal Appeals has also stated that “a request [for
findings of fact and conclusions of law] is best accomplished by a formal motion for
findings of fact and conclusions of law, made either on the record in open court or by
written motion and timely presentation to the trial court.” State v. Oages, 210 S.W.3d
643, 644 n.3 (Tex. Crim. App. 2006). In this case, the State filed its proposed findings
and conclusions, but it did not file a formal motion requesting that the trial court enter
findings and conclusions. In addition, there is nothing in the record to indicate that the
State ever presented its proposed findings and conclusions to the trial court or that it did
so timely.
Fourth, the Texas Court of Criminal Appeals has also explained that “[o]n its face,
Rule 44.4 authorizes a remand to the trial court only when the record is inadequate to
present a claim due to some ‘erroneous action or failure or refusal to act’ on the part of
the trial court, as opposed to one of the parties.” Davis v. State, 345 S.W.3d 71, 75 (Tex.
Crim. App. 2011) (quoting TEX. R. APP. P. 44.4(a)(1)). Thus, “a Rule 44.4 remand to
allow the trial court to enter findings of fact and conclusions of law [is appropriate] when .
. . [the trial court] erroneously failed to do so, upon request of the losing party . . . .” Id.
To the extent that the State’s proposed findings and conclusions operated as a request
for the trial court to enter findings and conclusions in support of its suppression order, the
13
State’s request was not made within the twenty day window set forth in Cullen. Cullen,
195 S.W.3d at 699–700. Therefore, it could be argued that the trial court did not err in
failing or refusing to act on the request, which if true, would mean that the remedial
purpose of Rule 44.4 has not been triggered in this case and that the State is therefore
not entitled to the relief it requests in its motion to abate and remand. See LaPointe v.
State, 225 S.W.3d 513, 522 (Tex. Crim. App. 2007) (“The key to Rule 44.4 is that there
must be an error that the appellate court can correct . . . .”).
Fifth and finally, there is the State’s argument—albeit an inadequately briefed
argument—that it was not required to make its request timely. We reject this argument
because the State has cited no authority in support of it. Furthermore, the State’s
argument is inconsistent with Cullen, which suggests that the trial court has a twenty day
window to enter requested findings and conclusions. Cullen, 195 S.W.3d at 699–700.
Moreover, the State’s argument is also inconsistent with decisions issued after Cullen,
such as Oages and Kelly, in which the Texas Court of Criminal Appeals continued to
consider whether there was a “timely” request. Oages, 210 S.W.3d at 644 n.3; Kelly,
204 S.W.3d at 819.
Despite the foregoing, however, we recognize the powerful thrust of Cullen’s
mandate “insisting that the findings be expressed by the trial court when requested by the
losing party.” Cullen, 195 S.W.3d at 699. Again, under Cullen, “the requirement is . . .
[that] upon the request of the losing party on a motion to suppress evidence, the trial court
shall state its essential findings.” Id. In this case, after the State lost on appellee’s
motion to suppress, it filed its proposed findings of fact and conclusions of law, thereby
14
triggering the trial court’s duty under Cullen to enter its essential findings. See id.
Furthermore, the trial court’s failure to enter findings and conclusions upon the State’s
request leaves this Court “with nothing to review except a one-word ruling,” and unless
the omission is corrected by an appropriate order, this Court will be forced “to make
assumptions about the trial court’s ruling.” Id. at 698. The Texas Court of Criminal
Appeals has held “that courts of appeals should not be forced to make assumptions (or
outright guesses) about a trial court’s ruling on a motion to suppress evidence.” Id.
Therefore, “Rule 44.4 authorizes the court of appeals to remand the case to the trial court
so that the court of appeals is not forced to infer facts from an unexplained ruling.” Id.
Additionally, Rule 43.6 states, “The court of appeals may make any other appropriate
order that the law and the nature of the case require.” TEX. R. APP. P. 43.6. Again, the
law requires that “upon request by the losing party in a motion to suppress evidence, a
trial judge must enter findings of fact and conclusions of law so that the appellate courts
can better review the decision of the trial court without speculating about the reasons for
the trial court’s decision.” Castro v. State, 227 S.W.3d 737, 743 (Tex. Crim. App. 2007).
Here, that was not done. Therefore, we conclude that it is appropriate to grant the State’s
motion.
In sum, we have concluded that the State has made a sufficient, though in our
view, minimalistic, effort to request findings of fact and conclusions of law from the trial
court pursuant to Cullen. Although the State erroneously asserts that it was not required
to make its request timely, we have rejected that assertion because it is inconsistent with
Cullen and its progeny. We hold that the State’s request was timely because it was made
15
after the trial court’s ruling on the motion to suppress, which “is interlocutory in nature”
and “which a trial court may revisit at its discretion at any time,” and because the State
made its request before its appeal was submitted to this Court for final disposition. Black
v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012).
We note that other courts have denied relief similar to what the State requests in
this case, even when it was undisputed that the State made a timely request. See, e.g.,
State v. Froid, 301 S.W.3d 449, 450–51 (Tex. App.—Fort Worth 2009, no pet.) (overruling
the State’s request to remand appeal for additional findings and conclusions because “the
State voiced no objection to the adequacy of the trial court’s findings of fact or the
appropriateness of its conclusions of law in the trial court”). However, we believe that
the fair and efficient administration of justice would be “well served to allow
supplementation of the record with the findings of fact that appellant had requested.”
Meekins v. State, 340 S.W.3d 454, 465 (Tex. Crim. App. 2011). The Texas Court of
Criminal Appeals has emphasized that “appellate courts should have the trial judge’s
findings of fact before disagreeing with that judge’s ruling on a motion to suppress.” Id.
In this case, it is unclear what the basis was for the trial court’s ruling. At the
hearing, the trial court hinted at one possible basis for its ruling when it asked the State,
“Why wouldn’t they need a warrant to go in there [into the shed]?” When the State
invoked the doctrine of consent, the trial court expressed concern about the validity of the
consent appellee’s parents purportedly granted to the police officers, commenting, “But
the other testimony regarding the parents, it seems to indicate that they didn’t give the
consent, even though they signed this [referring to State’s Exhibit 1, the consent form that
16
appellee’s father had signed]. I understand, there are some inconsistencies.” The trial
court thus acknowledged that there were conflicts in the evidence regarding the issue of
consent.
Also on the issue of consent, the trial court appears to have indicated its belief that
written consent was required to search the shed by commenting that when the police
officers went into the shed “and found the other things, they saw they had to get a written
consent.” The State agreed with that proposition. The State’s attorney told the trial
court that “to be digging around through things[, the police officers] probably needed a
consent form.” The trial court asked whether the police officers obtained “the consent
after they started going through [things] or before,” indicating that there was a question
regarding the timing and chronology of the events involving the search and seizure and
the purported consent. This was reinforced by defense counsel, who argued that the
police officers obtained the written consent from appellee’s stepfather after conducting
the search and seizure: “then they go back to the house and they need the father and
they say, we need you to sign this document so we could go in there and legally search,
they’ve already searched; they already found the dope; they’ve already made the arrest;
so they don’t have a good faith standing to rely on the consent of the father.” Again,
there are issues of fact involving conflicts in the evidence that the finder of fact must
resolve in the first instance based on the evidence presented at the hearing.
The trial court also called into question the validity and effectiveness of the written
consent signed by appellee’s father, commenting that it “takes care of all the problems,
17
maybe . . . .” Here, the trial court was clearly contemplating how the law should be
applied to the facts of the case and questioned what the result would be.
In rebuttal, the State agreed with defense counsel that “it does come down to
whether or not he challenged the stop, the search, the actual, if he actually spoke up
about the search.” The State’s attorney reminded the trial court that “[t]he officer said he
[referring to appellee] didn’t say a word” and then pointed out that there was a conflict in
the evidence because “now . . . [appellee is] saying that he told his mom, ‘Tell them to
stop going through my things . . . .’” The State’s attorney told the trial court, “[W]e didn’t
hear any of that from the mom.” The State’s attorney emphasized that the case turned
on a question of fact: “It really just comes down to who you believe; the officers, with
years and years of experience, the reverend, or the sex offender.”
Yet, the trial court said it was “not sure if it comes down to who is lying and who is
not lying . . . .” The trial court also stated, “I’m not sure I buy everything the Defendant
is selling,” thus indicating that the court disbelieved some portion of appellee’s testimony.
However, it is unclear which portion of the testimony that was.
Finally, we recognize that the trial court stated that ultimately, “it’s a legal issue.”
Although we agree that the lawfulness of the search and seizure is an issue of law, there
are many questions regarding how the trial court reached its decision to grant the motion
to suppress. For instance, what were the underlying historical facts? How did the trial
court resolve the conflicts in evidence regarding those facts? What law did the trial court
apply to the facts of the case? Which arguments did it accept? Which arguments did it
reject? The questions could be phrased in a number of different ways, but ultimately,
18
the problem is that we do not have the trial court’s “essential findings,” as defined in
Cullen. Cullen, 195 S.W.3d at 699.
At the conclusion of the hearing, the trial court stated that it was granting the motion
to suppress “based on the case law,” but which case law was that? Perhaps the trial
court was referring to the decision of the United States Supreme Court in Georgia v.
Randolph, 547 U.S. 103, 122–23 (2006), holding that the consent of one occupant is
insufficient when another occupant is physically present and objects to the search. Or it
could have been a reference to the decision of the Texas Court of Criminal Appeals in
Hubert v. State, 312 S.W.3d 554, 556–57 (Tex. Crim. App. 2010), holding that a
“grandfather had actual authority to consent to a search of the appellant’s bedroom” in a
“house they shared” after police officers arrived at the house, found the appellant on the
porch, arrested him based on an arrest warrant, and placed him in their squad car. Of
these two cases, both of which defense counsel provided to the trial court at the hearing
on the motion to suppress, Randolph seems to be the more likely basis for the trial court’s
ruling. However, we are required to base our decision in this case on what actually
happened, not on guesswork. To the extent that Randolph is relevant to the trial court’s
ruling, we note that the United States Supreme Court subsequently revisited the issue in
Fernandez v. California, 134 S.Ct. 1126 (Feb. 25, 2014).
Again, it is possible that the trial court granted the motion to suppress after
concluding that the purported consent by one or both of appellee’s parents was not valid,
but to review the ruling on this record, we would require guesswork and speculation about
how and why the trial court reached such a conclusion. And even then, it is entirely
19
possible that the trial court could have had a completely different basis for its ruling that
we simply have not considered or anticipated because the record is silent.
Under these circumstances, the more prudent course of action is to abate the case
with instructions for the trial court to enter findings of fact and conclusions of law in support
of its ruling on appellee’s motion to suppress, as requested by the State.
III. CONCLUSION
Accordingly, we GRANT the State’s motion. The State has requested findings of
fact and conclusions of law as the losing party in a motion to suppress proceeding. On
this record, this Court has no basis to review the trial court’s application of the law to the
facts of the case. Therefore, we conclude that the fair and efficient administration of
justice requires this Court to abate this case and order the trial court to state the essential
findings for its ruling and to include them in a supplemental clerk’s record to be filed with
the Clerk of this Court within thirty days of the date of this order.
IT IS SO ORDERED.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of May, 2014.
20
State v. Larry Green
Combined Opinion