                                                                                               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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