                                        NO. 12-16-00191-CR

                               IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

EDWARD CABALLERO,                                         §        APPEAL FROM THE 369TH
APPELLANT

V.                                                        §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                  §        ANDERSON COUNTY, TEXAS

                                            PER CURIAM ORDER
         In four issues, Edward Caballero appeals his conviction for unlawful possession of a
firearm by a felon. In his second and third issues, Appellant contends that the trial court failed to
make findings of fact and conclusions of law related to Appellant’s objections to the State’s
Exhibits 13 and 14. He argues that such findings of fact and conclusions of law are required by
Article 38.22, section 6, of the Texas Code of Criminal Procedure. The State asserts that
Appellant failed to specifically object to the voluntariness of the challenged statements or present
any evidence on the issue.1 The State further argues that the trial court’s failure to file findings
of fact and conclusions of law is harmless error.
         Appellant’s second issue addresses State’s Exhibit 13, which is a recording of a telephone
conversation between Christian Clements and Appellant’s wife.                        Appellant is heard in the
background.
         When the State offered Exhibit 13 into evidence, Appellant objected that the exhibit
violated Texas Rule of Evidence 803(8)(A)(ii) and (iii). Appellant further objected that the State
failed to lay the proper predicate as there was no showing that (1) the recording device was
capable of taking testimony, (2) the operator of the device was competent, and (3) the recording


         1
           Although the State’s brief specifically references Exhibit 13 and Appellant’s objections to Exhibit 13, the
brief is devoid of any specific references to Exhibit 14 and Appellant’s objections to Exhibit 14.
was authentic. The trial court heard argument from the State and Appellant on the issue. The
trial court then recessed the case until the following morning so that both sides could conduct
further research on the issue.
        The next morning, the trial court heard additional argument regarding the admissibility of
Exhibit 13. Appellant again asserted objections to the State’s Exhibit 13, stating “Your Honor,
one of the main objections is that it’s clearly hearsay and not subject – it denies my client’s Sixth
Amendment right to confrontation.” The trial court overruled Appellant’s objections.
        With the jury present, the State then reoffered Exhibit 13.                      Appellant renewed his
previous objections.
        Based on the record before us, we agree with the State that Appellant never objected to
the voluntariness of his statements found in Exhibit 13. Because Appellant never raised a
question as to the voluntariness of his statements contained in Exhibit 13, the trial court had no
obligation to conduct a hearing or provide findings of fact and conclusions of law as to Exhibit
13. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West Supp. 2015). Thus, issue two is not
preserved for appellate review.
        Appellant’s third issue addresses Exhibit 14. Ryan Toliver, an investigator with the
Anderson County Sheriff’s Office, conducted a custodial interview of Appellant. State’s Exhibit
14 is a recording of that interview.
        Before trial, Appellant filed a “motion to suppress statements.” In his motion, Appellant
asserted that any statements that he made to law enforcement officers were involuntary, coerced,
and enticed. We have no record of a hearing or a ruling on Appellant’s motion to suppress.
        When the State offered Toliver’s recording into evidence, Appellant objected that there
was no showing that he waived his Miranda2 rights.                     Appellant subsequently clarified his
objection, “Judge, again, just to make sure, the Court is clear my objection has to do with the fact
that there’s nothing on the recording that indicates that [Appellant] knowingly, intelligently, and
voluntarily waived his rights as set out in that warning.”3 The trial court overruled Appellant’s
objection.


        2
            Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
        3
           The State responded to Appellant’s objection by asserting that those legal questions had been argued to
the court previously and the court had made its rulings. Again, we note that the record contains Appellant’s motion
to suppress statements made to law enforcement, but we have no record of a hearing or a ruling on the motion.


                                                         2
       During his testimony, Toliver agreed that Appellant acknowledged understanding his
Miranda rights. He testified that Appellant never said that he did not want to talk and never
requested to have an attorney present.
       We disagree with the State that Appellant failed to object to the voluntariness of his
statements contained in Exhibit 14. To the contrary, the record demonstrates that Appellant
challenged the voluntariness of his statements to Toliver. See Urias v. State, 155 S.W.3d 141,
142 (Tex. Crim. App. 2004) (When the voluntariness of a statement is challenged, the trial court
must “make written fact findings and conclusions of law as to whether the challenged statement
was made voluntarily.”); see also Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011)
(State has burden to establish voluntariness of a waiver of Miranda rights). Accordingly, issue
three is preserved for our review.
       Regarding the filing of findings and conclusions, the code of criminal procedure contains
the following provision:

       In all cases where a question is raised as to the voluntariness of a statement of an accused, the
       court must make an independent finding in the absence of the jury as to whether the statement was
       made under voluntary conditions. If the statement has been found to have been voluntarily made
       and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury,
       the court must enter an order stating its conclusion as to whether or not the statement was
       voluntarily made, along with the specific finding of facts upon which the conclusion was based,
       which order shall be filed among the papers of the cause. … In any case where a motion to
       suppress the statement has been filed and evidence has been submitted to the court on this issue,
       the court within its discretion may reconsider such evidence in his finding that the statement was
       voluntarily made and the same evidence submitted to the court at the hearing on the motion to
       suppress shall be made a part of the record the same as if it were being presented at the time of
       trial. However, the state or the defendant shall be entitled to present any new evidence on the issue
       of the voluntariness of the statement prior to the court’s final ruling and order stating its findings.


TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6. In this case, we do not find in the record any order
stating the trial court’s conclusion as to whether or not Appellant’s statements were voluntarily
made, along with specific findings of fact upon which the conclusion was based, as required
under Article 38.22, section 6.
       The court of criminal appeals has held that “written findings are required in all cases
concerning voluntariness. The statute has no exceptions.” Vasquez v. State, 411 S.W.3d 918,
920 (Tex. Crim. App. 2013). Thus, a court of appeals errs by not abating for the requisite
findings, even where neither party requested written findings at any level of the proceedings.
See id. Therefore, we must abate this case, remand it for preparation of an order stating the trial



                                                         3
court’s conclusions and findings of fact pursuant to Texas Code of Criminal Procedure Article
38.22, section 6, and direct that the order be filed in this Court in a supplemental clerk’s record.
       Accordingly,
        It is ORDERED that the 369th District Court of Anderson County, Texas, shall (1) hold a
hearing, if necessary, to determine the voluntariness of Appellant’s statements, and (2)
immediately prepare and file an order including the court’s conclusions and supporting findings
of fact regarding the voluntariness of Appellant’s statements, in compliance with Texas Code of
Criminal Procedure Article 38.22, section 6.

       It is FURTHER ORDERED that a supplemental clerk’s record including the order and
findings be certified to this Court on or before August 30, 2017.

       It is FURTHER ORDERED that a supplemental reporter’s record of any hearing on the
voluntariness of Appellant’s statements be certified to this Court on or before August 30, 2017.

         It is FURTHER ORDERED that the Appellant shall have thirty (30) days from the later
of the date that the supplemental clerk’s record is filed or the date that the supplemental
reporter’s record is filed to file any supplemental brief based on the conclusions and findings of
the trial court.

        It is FURTHER ORDERED that the State shall have thirty (30) days from the date that
the Appellant files his supplemental brief, or from the date that Appellant’s time to file a
supplemental brief expires, whichever is earlier, to file any supplemental brief based on the trial
court’s conclusions and findings and the Appellant’s supplemental brief.

        It is FURTHER ORDERED that the submission of this case is postponed to give the
parties an opportunity to properly present all issues in their briefs. See TEX. R. APP. P. 38.9(b).

        WITNESS the Honorable James T. Worthen, Chief Justice, Court of Appeals, 12th
 Court of Appeals District, Tyler, Texas.

        GIVEN UNDER MY HAND AND SEAL OF OFFICE at Tyler, Texas this 31st day
        of July, 2017 A.D.
                                                      Respectfully yours,
                                                      PAM ESTES,
                                                      CLERK



                                                      By:
                                                            Katrina McClenny, Chief Deputy Clerk




                                                  4
