                                      NO. 07-10-0131-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL D

                                     FEBRUARY 2, 2011

                            ______________________________


                     CHRISTOPHER JAMES HARPER, APPELLANT

                                                V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

            FROM THE 54TH DISTRICT COURT OF MCLENNAN COUNTY;

              NO. 2009-1389-C2; HONORABLE MATT JOHNSON, JUDGE

                           _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                ABATEMENT AND REMAND


       Following a plea of guilty, Appellant, Christopher James Harper, was convicted of

possession of marihuana in an amount of more than four ounces but less than five

pounds, a state jail felony.1 By a sole point of error, he challenges the trial court's order

denying his motion to suppress.



1
Tex. Health & Safety Code Ann. § 481.121(b)(3) (West 2010).
                                     Background


      Appellant was a passenger in a vehicle that was stopped for a defective brake

light by Corporal Bouse, an officer with the City of Woodway. He testified that he

immediately detected the odor of an alcoholic beverage emanating from the vehicle. He

assured the driver that if everything checked out, he would only issue a warning. The

driver was asked to exit the vehicle and Corporal Bouse then conducted a warrants

check on the driver and his passenger, the Appellant. He discovered the driver was

operating a vehicle with an expired and suspended license and that Appellant's license

was also expired and he had a history of drug charges.         Backup was called and

Appellant was also removed from the vehicle.


      According to Corporal Bouse, Appellant admitted consuming approximately five

beers, and there was an open container beside the passenger seat. When threatened

with a probable cause search of the vehicle and asked by Corporal Bouse if anything

else would be found, Appellant admitted there was marihuana in the vehicle. At this

point, Appellant was placed in handcuffs. After a cursory search of the vehicle for

contraband which could possibly injure the drug detection canine, Corporal Bouse ran

the dog around the car and it alerted under the passenger seat. A large bag containing

marihuana was discovered as well as a small marihuana cigarette.


      Appellant was charged with intentionally and knowingly possessing a usable

quantity of marihuana. A motion to suppress all evidence was filed alleging an unlawful,

warrantless search and seizure. The only witness to testify at the hearing was Corporal

Bouse. The trial court denied the motion to suppress and Appellant pleaded guilty to


                                           2
the offense, was convicted, and sentenced to fifteen months in a state jail facility. The

trial court gave Appellant permission to appeal the pretrial ruling.


       The order denying the motion to suppress was signed on January 22, 2010, and

Appellant timely filed a Request for Findings of Fact and Conclusions of Law on

February 8, 2010.2 None, however, were ever filed.


                                           Analysis


       In Cullen v. State, 195 S.W.3d 696, 699 (Tex.Crim.App. 2006), the Court held

that "upon the request of the losing party on a motion to suppress evidence, the trial

court shall state its essential findings." Those findings of fact and conclusions of law

must be 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. The findings need to be recorded in

some way, whether written and filed or stated on the record. Id.


       The reporter's record of the suppression hearing in the underlying case does not

contain any statements on the record that could be considered findings by the trial

court. Consequently, we abate this appeal and remand the cause to the trial court for

the filing of findings of fact and conclusions of law as required by Cullen. We direct the

Honorable Matt Johnson, Presiding Judge of the 54th District Court of McLennan

County, to make and file his findings on or before March 1, 2011. Those findings and

conclusions shall be included in either a supplemental reporter's record or a

supplemental clerk's record to be filed with the Clerk of this Court on or before March


2
 In Cullen v. State, 195 S.W.3d 696, 699 (Tex.Crim.App. 2006), the Court looked to Rule 297 of the
Texas Rules of Civil Procedure for guidance.

                                                3
15, 2011.    On the filing of this supplemental record, the appellate record will be

complete.


       If Appellant determines, after reviewing the trial court’s findings and conclusions,

that he should amend or supplement his brief, his amended or supplemental brief will be

due thirty days after the supplemental record is filed.     Tex. R. App. P. 38.6(a).     If

Appellant files an amended or supplemental brief, the State will have thirty days

thereafter to file a responsive brief.


                                                 Per Curiam


Do not publish.




                                            4
