                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00135-CR



           THE STATE OF TEXAS, Appellant

                            V.

       JOSE GUADALUPE ZERMENO, Appellee



          On Appeal from the 6th District Court
                Lamar County, Texas
                Trial Court No. 25148




       Before Morriss, C.J., Carter and Moseley, JJ.
                                         ORDER
       The State of Texas has filed a motion asking this Court to abate the appeal to the trial

court for entry of findings of fact. This appeal was brought by the State from the grant of a

motion to suppress evidence. The trial court concluded that a statute mandating the draw of

blood from drivers without benefit of a warrant was unconstitutional and, therefore, suppressed

evidence obtained through those blood tests. The State appeals.

       In its motion, the State argues that we should abate the appeal to the trial court for entry

of what the State describes as “critical” findings of fact, based upon a case from San Antonio that

did so. State v. Flores, 392 S.W.3d 229 (Tex. App.—San Antonio 2012, pet. ref’d). There is a

major procedural anomaly—in that case, the court had made findings upon the request of the

State, but the appellate court concluded that critical findings were not made and abated so that

they could be made.

       In this case, no request for findings was made until the filing of this motion. The first

question is whether the State is entitled to findings of fact. The lead case on that question is

State v. Cullen, 195 S.W.3d 696, 699–700 (Tex. Crim. App. 2006). In that opinion, the Texas

Court of Criminal Appeals recognized that findings were indeed helpful to reviewing courts, and

held that

       [e]ffective from the date of this opinion, the requirement is: 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 to provide an appellate
       court with a basis upon which to review the trial court’s application of the law to
       the facts

               ....

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       We are simply insisting that the findings be expressed by the trial court when
       requested by the losing party.

Id. at 699. The court went on to state that appellate review is not contingent on the making of a

request for findings, nor forfeited by a failure to make a request, but that the trial court’s ruling

should be analyzed under its prior opinion in State v. Ross, 32 S.W.3d 853, 858 (Tex. Crim. App.

2000) (stating if non-prevailing party wishes to avoid effects of appellate presumptions of

implied findings, it should attempt to get rationale for trial court’s ruling on record). Cullen, 195

S.W.3d at 699.

       In application, unlike the situation in Cullen, the trial court in this case did not refuse to

provide requested findings—none were requested. Similarly, both in State v. Elias, 339 S.W.3d

667 (Tex. Crim. App. 2011), and in Flores, findings were made, but the trial court did not make

all of the findings deemed critical by the reviewing court; thus, return to the trial court for entry

of additional findings was found to be the appropriate remedy.

       Because there are no criminal rules setting out the procedure for this action, the court in

Cullen reached into the civil rules for direction and procedure. The court specifically referenced

Texas Rule of Civil Procedure 297 for the purpose of explaining to trial judges when their

findings were due to be filed. See TEX. R. CIV. P. 297. That rule states that the court shall file its

findings of fact within twenty days after a timely request is filed. The preceding rule, Texas

Rule of Civil Procedure 296, specifies that a timely request is one that is filed within twenty days

after the judgment is signed. See TEX. R. CIV. P. 296.




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       As the civil rules control this procedure, in order for a request to be timely so as to

require action by the trial court, it must be filed within twenty days after judgment. In this case,

the order suppressing evidence was signed on June 27, 2013. Any request for findings of fact

would, therefore, have been timely if filed on or before July 16, 2013. The first such request is

the motion filed with this Court on August 19, 2013. It is untimely, and we, therefore, decline to

abate the appeal to the trial court for the entry of formal findings.

       The motion to abate for findings is denied. Appellant’s brief is due August 30, 2013.

       IT IS SO ORDERED.



                                               BY THE COURT

Date: August 28, 2013




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