                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 THE STATE OF TEXAS,                                           No. 08-09-00175-CR
                                                §
                       Appellant,                                   Appeal from
                                                §
 v.                                                    County Criminal Court at Law No. 1
                                                §
 VANESSA M. MENDOZA,                                         of El Paso County, Texas
                                                §
                       Appellee.                               (TC # 20080C01360)
                                                §

                                         OPINION

       The State of Texas appeals from an order suppressing evidence. Finding that the trial

court reconsidered its original order while the appeal was abated and denied the motion to

suppress, we dismiss the State’s appeal as moot.

                         MOOTNESS OF THE STATE’S APPEAL

       The State charged Appellee, Vanessa Mendoza, with driving while intoxicated. Mendoza

filed a motion to suppress, which the trial court granted, and the State appealed. We reversed the

trial court’s order, but the Court of Criminal Appeals vacated our judgment and remanded the

case with instructions to abate the appeal for the trial court to clarify her ambiguous factual

findings and make an explicit credibility determination. State v. Mendoza, No. 08-09-00175-CR,

2011 WL 1157691 (Tex.App.--El Paso March 30, 2011), reversed by State v. Mendoza, 365

S.W.3d 666 (Tex.Crim.App. 2012). The Court of Criminal Appeals observed that the written
findings could be construed to imply that the trial judge believed the police officer was entirely

reasonable and that she simply misapplied the law related to reasonable suspicion. State v.

Mendoza, 365 S.W.3d at 672-73. On the other hand, the Court found it is equally possible that

the trial judge made an implied credibility finding that supported her ruling, namely, that she

disbelieved the officer. Id., 365 S.W.3d at 673. The Court concluded that it should not assume

either scenario to be true given that the trial judge is in the best position to clarify her ambiguous

factual findings and make an explicit credibility determination.         Id.   The Court’s opinion

contemplated that the trial judge would not only clarify her written findings, but she would also

reconsider Mendoza’s motion to suppress in light of the clarified fact findings and credibility

determination and the losing party could appeal that ruling. Id. (“Presumably the trial judge will

then deny the motion to suppress if she accepts Officer Davila’s version of the facts because the

court of appeals correctly set out the applicable legal principles. And presumably the trial judge

will again grant the motion to suppress if she disbelieved Officer Davila’s version or finds that

he was objectively unreasonable in his factual beliefs and conclusions.”).

       The trial judge has filed amended findings of fact and conclusions of law as instructed.

In her original conclusion of law, the court determined that the officer did not have reasonable

suspicion to stop the vehicle. In her amended conclusions of law, the judge states as follows:

       The Court finds the weaving within the lane several times, excessive braking,
       time of night, and the Officer’s training and experience in detecting intoxicated
       drivers (as seen in the video and the testimony of Officer Davila) did justify a stop
       of the defendant’s vehicle and did provide the police officer with sufficient
       reasonable suspicion to believe that the defendant was intoxicated.

Thus, the trial judge reconsidered her ruling as directed by the Court of Criminal Appeals and

she reached a different conclusion. While the trial judge did not enter a separate written order on

the motion to suppress, she implicitly denied Mendoza’s motion to suppress. See TEX.R.APP.P.



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33.1(a)(2)(A); Montanez v. State, 195 S.W.3d 101, 104-05 (Tex.Crim.App. 2006)(concluding

that trial judge implicitly overruled defendant’s motion to suppress even though there was no

written order denying motion).

       The State has filed a brief on remand urging that we review the merits of the trial court’s

original order granting Mendoza’s motion to suppress in light of the amended findings and

conclusions, but the trial court’s reconsideration of her prior ruling and her implicit denial of the

motion to suppress has rendered the State’s appeal of the original order moot. Courts do not

have authority to provide advisory opinions, or to decide cases on hypothetical or contingent

facts. See General Land Office of Texas v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990);

Beltran v. Beltran, 324 S.W.3d 107, 110 (Tex.App.--El Paso 2010, no pet.). It is well settled that

“a controversy must exist between the parties at every stage of the legal proceedings, including

the appeal.” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). A case is rendered moot when:

(1) it appears that a party seeks to obtain a judgment upon some controversy, when in reality

none exists; or (2) a party seeks a judgment upon some matter which cannot have a practical

legal effect upon a then existing controversy. Beltran, 324 S.W.3d at 110. Further, we do not

have jurisdiction to review the trial court’s interlocutory order denying Mendoza’s motion to

suppress. As the losing party, Mendoza will have the opportunity to appeal the denial of her

motion to suppress in the event she is convicted. See State v. Mendoza, 365 S.W.3d at 673.

Accordingly, we dismiss the State’s appeal as moot.


July 30, 2014
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rodriguez, J., not participating

(Do Not Publish)

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