ACCEPTED
06-15-00122-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/11/2015 12:01:57 PM
DEBBIE AUTREY
CLERK
No. 06-15-00122-CR
IN THE COURT OF APPEALS FILED IN
6th COURT OF APPEALS
SIXTH DISTRICT TEXARKANA, TEXAS
AT TEXARKANA, TEXAS 9/11/2015 12:01:57 PM
__________________________________________________________________
DEBBIE AUTREY
Clerk
DAVID SYLVESTER CHAMBERS, Appellant
v.
THE STATE OF TEXAS
APPELLANT’S MOTION TO ABATE APPEAL DUE TO THE ABSENCE
OF FINDINGS OF FACT AND CONCLUSIONS OF LAW
ON A DENIED MOTION TO SUPPRESS EVIDENCE AND
MOTION FOR EXTENSION OF TIME TO FILE APPELLANT’S BRIEF
PENDING FILING OF FINDINGS AND CONCLUSION IN A
SUPPLEMENTAL CLERK’S RECORD
__________________________________________________________________
TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:
Comes now, David Sylvester Chambers, Appellant in the above styled and
numbered cause and would show this honorable Court the following:
I.
Chambers was convicted in the above cause of theft of property with a value
over $1500.00 and under $20,000.00. Punishment, enhanced by two prior felony
convictions, was assessed at 15 years of imprisonment. Notice of appeal was
timely filed and the appeal docketed in this Court after transfer from the Tenth
Court of Appeals. The clerk’s record was filed on July 22, 2015. The reporter’s
record was filed on August 20, 2015. Chambers’ brief is due on September 21,
2015.
II.
Before trial, Chambers filed a motion to suppress evidence recovered
following his warrantless stop and arrest (CR 22-25). A hearing on the motion to
suppress was held (6 RR 155-184). The trial court denied the motion to suppress
(6 RR 184). Within his motion to suppress, Chambers requested the trial court
enter findings of fact and conclusions of law if the motion to suppress was denied
(CR 23). The record on appeal does not contain the findings and conclusions as
requested.
III.
Evidence subject to the suppression motion was admitted at trial. Chambers
intends to challenge the trial court’s denial of his motion to suppress on appeal. As
the non-prevailing party on the motions to suppress, Chambers timely sought for
the trial court to make findings of fact and conclusions of law which would provide
this Court with a basis upon which to review the trial court’s application of the law
to the facts upon denying any motion to suppress.
IV.
The requirement to make such findings and conclusions upon request of the
non-prevailing party is recognized in State v. Cullen, 195 S.W.3d 696, 699
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(Tex.Crim.App. 2006). Upon request of the non-prevailing party, a trial court has
twenty days to enter findings and conclusions. Cullen, 195 S.W.3d at 699. The
failure to enter requested findings and conclusions will result in abatement by the
appellate court to the trial court for entry of the findings and conclusions. Blocker
v. State, 231 S.W.3d 595, 598 (Tex. App. – Waco 2007, no pet.). When required
findings have not been made, the appellate court must first abate the appeal so that
the required findings can be made. In re Graves, 217 S.W.3d 744, 754 (Tex. App.
– Waco 2007) (Gray, C.J., dissenting).
V.
Counsel cannot prepare Chambers’ brief without the trial court first entering
the requested findings and conclusions. This is Chambers’ first request for an
extension to file his brief. Chambers seeks to have the Court reset the briefing
schedule in this case pending the filing of the requested findings and conclusions
from the trial court on the denied motion to suppress.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Chambers respectfully
requests the entry of an order of abatement directing the trial court to enter written
findings and conclusions on any motion to suppress evidence denied by the trial
court in the litigation of the above styled and numbered cause. Chambers further
requests that such findings and conclusions be provided to this Court by way of a
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supplemental clerk’s record. Finally, Chambers prays the briefing schedule be
reset pending receipt of the findings and conclusions from the trial court.
Respectfully submitted,
/s/Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
1411 West Ave., Suite 100
Austin, Texas 78701
(512) 469-7943
(512) 474-5594
wetzel_law@1411west.com
Attorney for Appellant
David Sylvester Chambers
CERTIFICATE OF SERVICE
This is to certify a true and correct copy of this pleading was emailed to
Counsel for the State of Texas, Doug Howell, Assistant District Attorney, at his
email address maintained in Brazos County at dhowell@co.brazos.tx.us on this the
11th day of September, 2015.
/s/Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
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