           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                       NO. PD-1635-10



                                 THE STATE OF TEXAS

                                               v.

                           ROY ANDREW WEAVER, Appellee

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE NINTH COURT OF APPEALS
                              POLK COUNTY

        K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., and H ERVEY,
J., joined.

                                 DISSENTING OPINION

       Under our recent opinion in Elias v. State,1 we are required to reverse and remand this

case to the court of appeals so that it can order the trial judge to enter a finding on the

essential, dispositive fact(s) that controls the disposition of this case. Faulting the State for

assuming that the van was parked in a public lot, the majority improperly views the evidence

in the light most favorable to the trial judge’s suppression ruling and concludes that the van

       1
           339 S.W.3d 667 (Tex. Crim. App. 2011).
                                                                    WEAVER DISSENT—2

was not parked in a public place. But the trial judge did not make any factfinding on whether

the van was parked in a public or private lot. That the majority has to imply the fact that the

van was parked in a private lot clearly proves my point. The only fact that has any bearing

on this issue is the trial judge’s finding that “[a] van located beside the defendant’s shop on

property owned by the defendant.” This statement says nothing about whether the lot was

open to the public. In cases in which the State requests findings, which it did here, the judge

is required to make all essential findings.2 And under Elias, when the record reveals that the

trial judge failed to make an essential, dispositive finding, when properly requested to do so

by the losing party, the case must be remanded to the trial judge to make such finding(s).3

Only when a trial judge does not enter findings of fact are we permitted to “view the

evidence in the light most favorable to the trial court’s ruling and assume that the trial court

made implicit findings of fact that support its ruling . . . .”4 I dissent to the majority’s

disposition of this case and would reverse the court of appeals’s judgment and remand the

case so that it can comply with our holding in Elias.




       2
          Id. at 674-76 (citing State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App.
2006)). But see State v. Ross, 32 S.W.3d 853, 856-57 (Tex. Crim. App. 2000) (when the
trial judge is not required to not make findings and conclusions, we presume that the trial
judge resolved all factual issues in favor of the prevailing party).
       3
           Elias, 339 S.W.3d at 676, 679.
       4
        Ross, 32 S.W.3d at 855 (citing Carmouche v. State, 10 S.W.3d 323, 328 (Tex.
Crim. App. 2000)).
                                 WEAVER DISSENT—3

DATE FILED: September 28, 2011
PUBLISH
