                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-11-00501-CR


ROBERT RICHARDSON                                                        APPELLANT

                                           V.

THE STATE OF TEXAS                                                              STATE


                                        ----------

       FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY

                                        ----------

                             DISSENTING OPINION

                                        ----------

      I write yet again in dissent because, again, this court applies conflicting rules

of procedure to trial courts’ rulings on motions to suppress, depending on whether

the trial court rules for the State or for the defense.

      It has been well established that when a trial court rules against a defendant

on a motion to suppress, and the trial court rules orally on the record and states its

findings of fact and conclusions of law on the record, the trial court has satisfied all
requirements concerning the ruling and the findings of fact and conclusions of law, 1

and the defendant has preserved the complaint for appellate review. 2 But, as in

State v. Cox, 3 the majority here confuses the criminal rules of procedure with the

civil rules of procedure. When the State prevails in defeating a defendant’s motion

to suppress, the trial court is not required to enter a separate written order apart

from that dictated into the record. 4 When, however, the defense prevails, someone

must draft a written order, which the trial judge must then sign and file in the record

of the case. 5

        The effect of these schizophrenic rules of procedure is to substantially extend

the appellate timetable for the State in appealing the ruling on a motion to suppress

in which the defense prevails. Had the legislature intended for the State’s timeline

for appealing the granting of a motion to suppress to be substantially longer, the

legislature would have provided for a different timeline by statute. As it is, this court


        1
       See, e.g., Gaston v. State, 435 S.W.2d 858, 860 (Tex. Crim. App. 1969);
Horn v. State, 699 S.W.2d 714, 716 (Tex. App.—Fort Worth 1985, no pet.).
        2
       See Tex. R. Evid. 103(a)(1); Gearing v. State, 685 S.W.2d 326, 329 (Tex.
Crim. App. 1985) (op. on reh’g) (“It is settled that when a pre-trial motion to suppress
evidence is overruled, the accused need not subsequently object to the admission of
the same evidence at trial in order to preserve error.”), overruled on other grounds
by Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997).
        3
        235 S.W.3d 283 (Tex. App.—Fort Worth 2007, no pet.) (en banc majority
op.).
        4
        See, e.g., Gaston, 435 S.W.2d at 860; Horn, 699 S.W.2d at 716.
        5
        See Cox, 235 S.W.3d at 284–85.


                                           2
has usurped the province of the legislature by creating a measure that extends the

State’s appellate timeline without approval of the legislature by the simple expedient

of applying civil rather than criminal law. 6

      I reiterate what I stated in Bracken v. State, 7

              The trial court orally denied Appellant’s motions to suppress but
      did not enter a written order. In his first point, Appellant argues that the
      trial court erred by denying his motions to suppress. This court has
      held that there is no appealable ruling on a motion to suppress unless
      the trial judge enters a written order. As noted in Cox, “[W]e notified
      the State of our concern that we lacked jurisdiction over the appeal
      because there is no appealable written order.” We concluded in the
      opinion that we indeed lacked jurisdiction based on the absence of a
      written order.

             Following the Rosenbaum court, we interpreted “entered by the
      court” to mean the signing of a written order. We recognized that
      Rosenbaum dealt with former appellate rule 41(b)(1), which required an
      appealable order signed by the trial court, and which has been
      superseded by appellate rule 26.2(b), which does not. And we did not
      address the fact that although article 44.01(d) of the code of criminal
      procedure and appellate rule 26.2(b) speak of a sentence to be
      appealed, the appellate timetable runs not from the signing of the
      written judgment and sentence but from the pronouncement of
      sentence in open court.

            By holding in Cox that the trial court does not enter an order
      granting a motion to suppress until formally signing a written order,
      even though the ruling and findings of fact and conclusions of law have
      been pronounced on the record in open court, we allowed the State
      more than six extra months to perfect its appeal. Yet, in the case now
      before this court, the majority holds that the trial court enters an order
      denying a motion to suppress when the trial court pronounces its ruling

      6
      See Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (quoting
Lamie v. U.S. Tr., 540 U.S. 526, 542, 124 S. Ct. 1023, 1034 (2004)).
      7
        282 S.W.3d 94, 99–101 (Tex. App.—Fort Worth 2009, pet. ref’d) (Dauphinot,
J., dissenting).


                                            3
      orally. The majority states that the appeal lies because after a trial is
      concluded, the appellant is appealing from “a final judgment of
      conviction.” But the majority confuses the criminal rules of procedure
      with the civil rules of procedure. While the appellate timetable in a civil
      case runs from the signing of the judgment, the appellate timetable in a
      criminal case begins to run when the sentence is pronounced orally in
      open court. The judgment may be signed days or even weeks later in
      a criminal case and has no effect on the appellate timetable.

             To remain consistent with the rule of Cox, we should hold that
      because there is no written order denying Appellant’s motions to
      suppress, there is nothing to appeal from the suppression ruling . . . .
      The majority, however, holds that when a defendant appeals from a
      ruling on the motion to suppress, no written order is necessary. 8

      Again, as in Bracken, I must respectfully dissent and would hold that we must

be consistent with our ruling in Cox, erroneous though I believe it to be and in direct

conflict with the clear mandate and intent of the legislature, 9 and hold that a trial

court must go to the additional and unnecessary inconvenience of entering a written

order and written findings of fact and conclusions of law apart from those already

entered in the written record when ruling on a motion to suppress, no matter which

side prevails.



                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PUBLISH

DELIVERED: April 18, 2013


      8
       Id. (citations omitted).
      9
       Cox, 235 S.W.3d at 285–87 (Dauphinot, J., dissenting).


                                          4
