                                                                                           ACCEPTED
                                                                                       03-15-00153-CR
                                                                                               5294072
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                  5/14/2015 5:35:08 PM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                              NO. 03-15-00153-CR

THE STATE OF TEXAS                       §          IN THE THIRD FILED IN
                                                             3rd COURT OF APPEALS
                                                                 AUSTIN, TEXAS
v.                                       §          DISTRICT 5/14/2015
                                                              COURT5:35:08
                                                                         OF PM
                                                               JEFFREY D. KYLE
FRANCES ANITA ROBINSON                   §          APPEALS OF TEXAS Clerk


        STATE’S VERIFIED MOTION TO ABATE AND REMAND

TO THE HONORABLE JUSTICES OF SAID COURT:

      Now comes the State of Texas, Appellant in the above styled and numbered

cause, and files this verified motion to abate and remand the instant cause to the

trial court so that it may file its findings of fact and conclusions of law for

inclusion in the appellate record, and would show unto the Court the following:

                                        I.

      Appellee was indicted by a grand jury on June 5, 2013 for the charge of

Intoxication Manslaughter in CR2013-267. After Appellee’s motion to suppress

evidence was granted by the trial court on February 18, 2015, the State timely

appealed pursuant to article 44.01 of the Code of Criminal Procedure. The State

timely filed its request for findings of fact and conclusions of law with the trial

court on March 10, 2015. See Tex. R. Civ. P. 296.

      The Clerk’s Record in the instant cause was quickly filed with the Court on

March 13th, while the Reporter’s record was filed on March 20th, the same day the

Court of Appeals granted the State’s motion to stay proceedings in the trial court.


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Although not required in criminal cases, out of an abundance of caution, the State

timely filed a notice of past due findings of fact and conclusions of law on April 9,

2015, along with the State’s proposed findings for the trial court. See Tex. R. Civ.

P. 297.

      On May 6, 2015, the State discovered that the trial court had filed findings

and conclusions on April 17, 2015. The State had no notice or actual knowledge of

the findings until May 6, 2015. The State confirmed on May 6th that neither the

trial court’s findings and conclusions nor any notice of the entry of said findings

was sent to the parties in the instant cause. But see id. (“[t]he court shall cause a

copy of its findings and conclusions to be mailed to each party in the suit.”); see

also Tex. R. Civ. P. 298 (giving parties 10 days from the filing of the court’s

findings to request additional or amended findings). As proof of the foregoing, the

State directs the Court’s attention to the attached State’s Affidavit, verifying the

facts set forth in the instant motion are true and correct.


                                           II.

      The State is entitled to findings of fact and conclusions of law in the instant

appeal. In State v. Cullen, the Court of Criminal Appeals held that:

      [e]ffective from the date of this opinion … 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


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      to provide an appellate court with a basis upon which to review the
      trial court’s application of the law to the facts.

195 S.W.3d 696, 699 (Tex. Crim. App. 2006). In the instant case, the trial court did

file findings on April 17, 2015. However, the Court of Criminal Appeals has held

that findings entered after a trial court is deprived of jurisdiction are void. Green v.

State, 906 S.W.2d 937, 940 (Tex. Crim. App. 1995). A trial court in a criminal case

is deprived of jurisdiction when the trial record is filed. Id. at 939; see also Tex. R.

App. P. 25.2(g). Green added that Rule of Appellate Procedure 55(b) “does not

provide authority or jurisdiction for the trial court to make written findings which

did not previously exist.” 906 S.W.2d at 940 n.3. In that case, the appeal was

abated and remanded so the trial court’s findings could be included in the record.

Id. at 940.

      In the instant case, because the clerk’s record was filed almost immediately

after the notice of appeal on March 13th – and the reporter’s record was filed days

later on the 20th – the trial court was unable to include its findings and conclusions

in the appellate record. Under Green, the findings and conclusions which were

filed on April 17th – after the trial court was divested of jurisdiction – are void. Id.

To ensure the record contains the findings to which it is entitled, the State

respectfully requests that this Court abate and remand the instant appeal with the

direction to re-file the trial court’s findings, and to allow the State time to object or

request additional findings. See id.; see also Blocker v. State, 231 S.W.3d 595, 598

                                           3
(Tex. App.—Waco 2007, no pet.); Marrero v. State, 03-14-00033-CR, 2014 WL

4400771, at *1 (Tex. App.—Austin Sept. 4, 2014, no pet.) (mem. op., not

designated for publication); cf. McShan v. Pitts, 538 S.W.2d 266 (Tex. Civ. App.—

San Antonio 1976, no writ) (“Here the findings of fact and conclusions of law were

made, but not in time for appellant to have any opportunity to request additional

findings. We conclude that instead of reversing the judgment, the proper order is

one directing the trial court to file its findings of fact and conclusions of law so as

to give appellant the opportunity to request further, additional, or amended findings

in accordance with Rule 298, Tex. R. Civ. P.”).


                                         III.

      WHEREFORE, PREMISES CONSIDERED, the State’s counsel

respectfully prays that the Honorable Court of Appeals abate and remand the

instant appeal, and direct the trial court to re-file its findings. Further, the State

prays that the Court direct that any supplemental clerk’s record not be filed until

the State has been afforded the opportunity to request additional or amended

findings under Tex. R. Civ. P. 298, and the trial court in turn has time to file such

findings.




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Respectfully submitted,

/s/ Daniel Palmitier
Daniel Palmitier SBN: 24062984
palmid@co.comal.tx.us
Comal Criminal District Attorney’s Office
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Ph: (830) 221-1300 / Fax: (830) 608-2008




  5
THE STATE OF TEXAS                              §
COUNTY OF COMAL                                 §

                     STATE'S VERFICATION AFFIDAVIT

      BEFORE ME, the undersigned authority, on this day personally appeared

Daniel Palmitier, who being by me duly sworn, upon oath states that he is above

the age of 18, of sound mind and capable of making this affidavit, that he is an

attorney for the State ofTexas in the above and foregoing cause- 03-15-00153-CR

in the Court of Appeals, trial court cause number CR2013-267, The State ofTexas

v. Frances Anita Robinson in the 207 1h District Court of Comal County, Texas-

and that the facts stated in the foregoing State's Verified Motion to Abate and

Remand are true and correct.




       SUBSCRIBED AND SWORN to before me, this, the 1/1 1h day of May, 2015,
to certify which witness my hand and seal of office.




         e       ELVAA. BRENNER
                Notary Public. Stale of Texas
                  My CommiSSIOn Exp1res
               SEPTEMBER 19,2016
                                                    Notary Public in and for the
                                                    State of Texas            ~
                                                    My Commission Expires:~/~ liJI~




                                                6
                         CERTIFICATE OF SERVICE

       I, Daniel Palmitier, Assistant District Attorney for Appellant, the State of
Texas, hereby certify that a true and correct copy of the above and foregoing
State’s Verified Motion to Abate and Remand was sent to Defendant/Appellee
FRANCES ANITA ROBINSON’s attorney of record in this matter:

      Mr. Charles Sullivan
      csullivan@lawcsullivan.com
      308 Campbell Dr.
      Canyon Lake, TX 78133
      Fax: 210-579-6448
      Attorney for Appellee on Appeal

By electronic service to the above-listed email address on this the 14th day of May,
2015.

                                             /s/ Daniel Palmitier
                                             Daniel Palmitier




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