                                                                                          AP-76,051
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
 November 5, 2015                                                     Transmitted 11/5/2015 8:26:01 AM
                                                                        Accepted 11/5/2015 8:46:54 AM
                                                                                        ABEL ACOSTA
                                   NO. AP-76,051                                                CLERK

MANUEL VELEZ                            §       IN THE

VS.                                     §       COURT OF CRIMINAL APPEALS

STATE OF TEXAS                          §       STATE OF TEXAS

                        STATE’S MOTION TO PUBLISH

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      The State, by and through its District Attorney, 268th Judicial District, Fort

Bend County, asks this Court to reconsider its decision to not publish its opinion in

the above-referenced case, Velez v. State, No. AP-76,051, 2012 WL 2130890 (Tex.

Crim. App. June 13, 2012).

      In Velez, this Court distinguished Garcia v. State, 15 S.W.3d 533, 536 (Tex.

Crim. App. 2000), in which a de novo suppression hearing was ordered because a

judge, other than the judge who heard the hearing, made findings of fact and

conclusions of law on a cold record. Garcia, 15 S.W.3d at 534-35. In Garcia,

testimony was taken from the officer who took Garcia’s confession and from Garcia.

Id. at 535. “Thus, the trial court’s conclusion that [Garcia’s] statement was voluntary

was based on a direct evaluation of the witnesses’ credibility and demeanor.” Id.

      In Velez, the judge who held the suppression hearing was succeeded by a new

trial judge. Velez, 2012 WL 2130890, at *13. The new trial judge prepared findings


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and conclusions based on the record of the suppression hearing and the prior judge’s

ruling that the statement was voluntarily made. Id. This Court distinguished Garcia,

“In Garcia, however, we did not specifically address the rare situation that presents

itself here, wherein the prior judge cannot be appointed to prepare findings of fact and

conclusions of law because of unavailability or ineligibility.” Id. This Court took

note of the “peculiar circumstances” of the case:

      While the record does not include the reason the presiding judge of the
      Fifth Administrative Region did not appoint the prior judge to prepare
      findings and conclusions, we take note of the readily available public
      information indicating that the prior judge is currently unavailable for
      appointment. In such a situation, where the prior judge is unavailable or
      ineligible for an appointment, we find it appropriate that there be an
      exception to the rule laid out in Garcia. In the event that the judge who
      presided over a suppression hearing is unavailable or ineligible to be
      appointed to prepare findings of fact and conclusions of law, the current
      trial judge may prepare findings and conclusions based on the prior
      judge's ruling on the record and the transcript of the suppression hearing
      regarding whether a defendant's statement was voluntarily made.

      We recognize that the original trial judge, who is uniquely situated to
      observe the demeanor of witnesses first-hand, is generally in the best
      position to assess the credibility of witnesses. See Ex parte Reed, 271
      S.W.3d 698, 727 (Tex. Crim. App. 2008). In this rare circumstance, the
      trial judge making the findings and conclusions did not observe the
      demeanor of the witnesses because she did not preside over the
      suppression hearing. However, she refrained from making any explicit
      credibility determinations. Thus, we will accept the new trial judge's
      findings and conclusions, and we will review the record to determine if
      they are supported by the evidence.

Velez, 2012 WL 2130890, at *13.


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      If published, Velez could be cited as precedential authority for allowing a

successor trial judge to make findings of fact and conclusions of law when (1) the

judge who heard the suppression hearing is deceased or otherwise unavailable, and (2)

no explicit credibility determinations need be made.

      In Luis Carlos Rodriguez v. State, No. 01-14-00774-CR, the trial judge who

heard the suppression hearing, Hon. Thomas Culver III, passed away in September

2015. Mr. Rodriguez did not testify at the suppression hearing, and the facts are

undisputed. No explicit credibility determinations need be made. The two Velez

factors that would allow a successor judge to make findings and conclusions are met.

      However, as shown in the attached motion to abate the appeal, Mr. Rodriguez

is asking for a de novo suppression hearing because Judge Culver is deceased. [Mtn

at 2] The State would like to cite Velez as precedential authority in response.

However, Rule of Appellate Procedure 77.3 provides that this Court’s “[u]npublished

opinions have no precedential value and must not be cited as authority by counsel or

by a court.” Tex. R. App. P. 77.3. The Court’s holding in Velez has not been adopted

by this Court in a published opinion, and thus should not be cited.

      This Court’s holding in Velez was applicable in at least one other case, Pavon-

Maldonado v. State, No. 14-13-00944-CR, 2015 WL 1456523, at *4 n.5 (Tex. App.--

Houston [14th Dist.] Mar. 26, 2015, no pet.) (mem. op. not designated for


                                         3
publication).

      “The Court of Criminal Appeals may, at any time, order that a “do not publish”

notation be changed to “publish.” Tex. R. App. 47.2(b) (albeit with regard to opinions

of the courts of appeals). The State believes that Velez, established an exception to

Garcia that will save scarce state and judicial resources when a defendant has been

afforded a pre-trial hearing on his suppression motion, the trial judge passes away, or

is otherwise unavailable, and the facts adduced at the suppression hearing are

undisputed and no explicit credibility determinations need be made.




                                          4
      WHEREFORE, PREMISES CONSIDERED, the State asks this Court to grant

its motion to publish that part of its opinion in this cause addressing Point of Error

Ten so that the opinion may be cited for its precedential value.

                                              Respectfully submitted,

                                              John F. Healey, Jr.
                                              SBOT # 09328300
                                              District Attorney, 268th Judicial District
                                              Fort Bend County, Texas

                                              /s/ Gail Kikawa McConnell
                                              Gail Kikawa McConnell
                                              SBOT # 11395400
                                              Assistant District Attorney
                                              301 Jackson Street, Room 101
                                              Fort Bend County, Texas 77469
                                              (281) 238-3205 / (281) 238-3340 (fax)
                                              Gail.McConnell@fortbendcountytx.gov




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                          CERTIFICATE OF SERVICE

      I hereby certify that on November 5, 2015, a copy of the State's motion to
publish was served on :

L.J. Rabb, Assistant District Attorney, Cameron County, by e-service or email
<lrabb@co.cameron.tx.us>;

Brian W. Stull, Attorney for Manuel Velez, by first class mail, return receipt requested
# 7013 0600 0002 2111 7188, 201 W. Main St, Ste 402, Durham, N.C. 27701-3228;

Mr. Stephen Doggett, Attorney for Louis Carlos Rodriguez, by e-service or email
<office@doggett-law.com>;

Ms. Lisa McMinn, State Prosecuting Attorney, by e-service or email,
<Lisa.McMinn@SPA.texas.gov>


                                               /s/ Gail Kikawa McConnell
                                               Gail Kikawa McConnell




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  Velez v. State

Point of Error Ten
