                                                                                     ACCEPTED
                                                                                12-14-00044-CR
                                                                    TWELFTH COURT OF APPEALS
                                                                                 TYLER, TEXAS
                                                                          2/16/2015 11:41:41 AM
                                                                                   CATHY LUSK
                                                                                         CLERK

______________________________________________________________________

                      In The Twelfth Court Of Appeals
                                                             FILED IN
                               Tyler, Texas           12th COURT OF APPEALS
______________________________________________________________________
                                                           TYLER, TEXAS
                                                       2/16/2015 11:41:41 AM
                               No. 12-14-00044-CR           CATHY S. LUSK
                                                                Clerk
                     Shakeitha Cartwright, Appellant,
                                     v.
                       The State of Texas, Appellee.
______________________________________________________________________

          On Appeal from the 273rd District Court, Shelby County, Texas
                     Trial Court Cause No. 2013-CR-18695
______________________________________________________________________

   APPELLANT’S MOTION TO ABATE APPEAL AND FOR A DE NOVO HEARING IN THE
  TRIAL COURT UNDER ART. 38.22, § 6, TEXAS CODE OF CRIMINAL PROCEDURE
______________________________________________________________________


Seth T. Johnson, Tex. Bar No. 24082212
222 North Mound St., Suite #1
Nacogdoches, Texas 75961
Telephone: (936) 205-6775
Fax: (936)715-3022
Email:johnsondefenselaw@gmail.com
Attorney for Appellant
       APPELLANT’S MOTION TO ABATE APPEAL AND FOR A DE NOVO HEARING IN THE
       TRIAL COURT UNDER ART. 38.22, § 6, TEXAS CODE OF CRIMINAL PROCEDURE

TO THE HONORABLE JUDGES OF THE TWELFTH COURT OF APPEALS:

          COMES NOW, the Appellant, Shakeitha Cartwright, by and through her attorney

of record, Seth T. Johnson, and respectfully makes this motion.

          Appellant moves this Honorable Court for an order abating this appeal, an order

directing the trial court to hold de novo a hearing under Art. 38.22, § 6, Tex. Code Crim.

Proc., and following said hearing, to prepare and file findings of fact and conclusions of

law as to the voluntariness of Appellant’s statements to law enforcement, and to file in

the Appellate Court a supplemental clerk’s record containing those findings, and for an

order staying the briefing schedule until the foregoing is accomplished.

          Only if Appellant’s first motion is denied, then Appellant alternatively moves this

Honorable Court for an order, pursuant to Tex. Rule App. Proc. 34.5(c)(2), directing the

trial court to prepare and file findings of fact and conclusions of law as to the

voluntariness of Appellant’s statements to law enforcement, and to file in the Appellate

Court a supplemental clerk’s record containing those findings, in accordance with Art.

38.22, § 6, Tex. Code Crim. Proc.

          In support, Appellant would show as follows:

                                  I. STATEMENT OF FACTS

          On May 7, 2013 Appellant’s trial counsel filed a pre-trial “Motion to Suppress

Statement of Defendant”, alleging inter alia, that her statements to law enforcement

were involuntary in violation of Art. 38.22, Tex. Code Crim. Proc., and U.S. Const.




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Amend. 5 & 14. (CR, Vol.1, p. 23)1. Specifically, said motion alleged that the

statements were made under “extreme duress” while Appellant was in a “state of shock”

and “severely depressed”, and that Appellant was mentally incompetent at the time. Id.

Said motion explicitly requested that the trial Judge enter “specific findings of fact and

conclusions of law”. Id. As discussed infra, the reporter’s record shows that the District

Attorney and the Judge both clearly understood that Ms. Cartwright’s was moving to

suppress her statements on the basis of claimed involuntariness and that she was

invoking the procedures outlined in Art. 38.22, § 6, of the Tex. Code of Crim. Proc.

                  On July 8, 2013 said motion came on to be heard before the Hon. Charles

Dickerson, 123rd District Court. (RR. Vol.3, p.1). The three law enforcement officers

responsible for questioning Ms. Cartwright and taking her statements all testified at the

hearing. (RR. Vol.3, p.11-74). Also, Ms. Cartwright’s videotaped statements (State’s

exhibits no. 1-3) and her written statement (State’s exhibits no. 4) were admitted into

evidence for the limited purposes of the suppression hearing. (RR. Vol.3, p. 3, 7-8, 40).

It was understood by both parties that Judge Dickerson would watch the admitted

videos on his own. (RR.Vol.3, p.9; RR.Vol 5, p.193).

                  The suppression hearing was then recessed by agreement of the parties without

any findings or rulings made by Judge Dickerson. (RR. Vol.3, p. 74). The reason for

doing so was defense counsel’s stated intent to have defendant evaluated by a mental

health expert and then to present evidence about that evaluation prior to the conclusion

of the suppression hearing. (RR. Vol.3, p. 5). The trial court approved funding for said

evaluation. (RR. Vol.3, p. 79).

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1	  The	  clerk’s	  record	  is	  referenced	  as	  “CR”	  followed	  by	  volume	  and	  page	  number.	  	  The	  

reporter’s	  record	  is	  referenced	  as	  “RR”	  followed	  by	  volume	  and	  page	  number.	  

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       For unknown reasons, the mental evaluation was not conducted. The

suppression hearing was never resumed at any time prior to the jury trial. Judge

Dickerson did not issue any orders ruling on the voluntariness issue or making findings

of fact or conclusions of law. (RR. Vol.4, p.145).

       On January 13, 2014 Defendant’s jury trial commenced. The trial was presided

over by a second judge, the Hon. Charles Mitchell, in the 273rd District Court. (RR.

Vols.4-10). Following jury selection, but prior to the presentation of evidence, there is a

discussion on the record between the parties and Judge Mitchell about the lack of a

ruling under Denno and 38.22 and the need for written findings regarding the

voluntariness of Ms. Cartwright’s statements. (RR. Vol. 4 p.143-146). Based on the

agreement of the parties, Judge Mitchell agreed to read the reporter’s transcript of the

July 8, 2013 suppression hearing. Id.

       Trial continued on January 14, 2014. (RR. Vol.5). Out of the presence of the

jury, the suppression hearing was briefly resumed on this date. (Id., p.193-207). Judge

Mitchell indicated for the record that he had read the transcript of the suppression

hearing presided over by Judge Dickerson. (Id., p.195, 202). None of the witnesses

who testified on July 8, 2013 were recalled to testify anew. (Id., p.193-207). Some new

evidence was heard. The state played the portion of each video (State’s Exhibits #1 &

#3) showing the Miranda admonishments. (Id., p.198-199). Judge Mitchell did not

watch the videos in their entirety (approximately 7 hours long) prior to ruling. There is

no evidence in the record that Judge Dickerson watched the videos either, although

they had been tendered for that purpose on July 8, 2013. (Id., p.193) The state also

admitted two Miranda warning cards signed by the Defendant. (Id., p.200). Judge




	                                                                                          4	  
Mitchell ruled that the videotaped statements were voluntary and admissible. (Id.,

p.205). No ruling was made at all concerning the voluntariness of Ms. Cartwright’s

written statement. Id. Following the suppression hearing, there was another discussion

on the record about the necessity of written findings and conclusions under 38.22.

Judge Mitchell agreed to file the requisite order, and it appears that one was in the

process of being drafted by the District Attorney. (Id., p.205-207). However the clerk’s

record does not contain any written findings.

       II. AUTHORITIES AND ARGUMENT – ABATEMENT OF APPEAL AND REMAND TO
                TRIAL COURT FOR DE NOVO 38.22 § 6 HEARING REQUIRED

           In most cases, a remand order pursuant to Tex. Rule App. Proc. 34.5(c)2

directing the trial court to prepare and file findings and conclusions as to the

voluntariness of a defendant’s statements will satisfy the mandatory requirements of Art.

38.22 § 6 Tex. Code Crim. Proc.

           “When the voluntariness of a statement is challenged, Art. 38.22, § 6, of the
           Texas Code of Criminal Procedure requires the trial court to make written fact
           findings and conclusions of law as to whether the challenged statement was
           made voluntarily. It is well settled that Art. 38.22, § 6, "is mandatory in its
           language and that it requires a trial court to file its findings of fact and
           conclusions of law regarding the voluntariness of a confession whether or not the
           defendant objects to the absence of such omitted filing." Wicker v. State, 740
           S.W.2d 779, 783 (Tex.Crim.App.1987), cert. denied, 485 U.S. 938 (1988). See
           also McKittrick v. State, 535 S.W.2d 873, 876 (Tex.Crim.App.1976).

           Our review of the record reflects that the trial court did not issue the requisite
           written findings of fact and conclusions of law. Thus, the court of appeals made
           its decision without the benefit of the requisite findings and conclusions. The
           proper procedure is that the trial judge be directed to make the required written
           findings of fact and conclusions of law. Wicker, supra. We remand this cause to
           the court of appeals with instructions to require compliance by the trial court with
           the provisions of Art. 38.22, § 6, and reconsider the voluntariness of Appellant's
           confession in light of those findings of fact and conclusions of law.”

           Urias v. State, 155 S.W.3d 141 (Tex.Cr.App. 2004).




	                                                                                            5	  
       But the uncommon procedural history of the instant case presents problems that

cannot be remedied by the ordinary measure. 1) Judge Mitchell’s ruling during trial that

Ms. Cartwright’s statements were voluntary and admissible was based almost entirely

on his reading of a “cold transcript” from the July 8, 2013 hearing. Said transcript

contained all of the testimony from the three officers responsible for questioning Ms.

Cartwright. 2) In making his ruling Judge Mitchell was unable to rely on a ruling from

Judge Dickerson containing findings of fact and conclusions of law concerning

voluntariness. 3) Due to the bifurcated nature of the suppression hearing, neither Judge

actually heard all of the evidence in the form of live testimony. 4) It appears from the

record that neither Judge actually watched the videotaped statements in their entirety

before ruling on their admissibility.

       A trial judge may not make statutorily-mandated findings of fact and conclusions

of law based on a reporter's record of a hearing over which he did not preside, unless

the judge who heard the evidence has previously filed findings of fact and conclusions

of law. Garcia v. State, 15 S.W.3d 533, 535-36 (Tex. Crim. App. 2000). The only

remedy in the instant case is a de novo Art. 38.22 § 6 hearing.

       “The determination of whether a statement is voluntary is a mixed question of law
       and fact, i.e., an application of law to a fact question. . . . In the instant case, the
       trial court held a hearing pursuant to Appellant's motion to suppress his statement
       on the basis that it was involuntary. At the hearing, testimony was taken from
       Abdon Rodriguez, the police officer who took Appellant's confession, and from
       Appellant. Thus, the trial court's conclusion that Appellant's statement was
       voluntary was based on a direct evaluation of the witnesses' credibility and
       demeanor.

       Recently, we stated that "appellate courts ... should afford [almost total] deference
       to trial courts' rulings on 'application of law to fact questions,' also known as
       'mixed questions of law and fact,' if the resolution of those ultimate questions
       turns on an evaluation of credibility and demeanor." Guzman v. State, 955
       S.W.2d 85, 89 (Tex.Crim.App.1997). This is the proper standard of review



	                                                                                           6	  
       because the trial judge viewing the witnesses and hearing their testimony is in a
       better position to evaluate their credibility and demeanor than is an appellate
       judge who must rely on only a written transcript of the hearing. See id. at 87. For
       the same reason, it is not appropriate for the second judge in the instant case to
       make findings of fact based solely on the written transcript of the initial hearing. It
       is inconsistent to restrict an appellate court's review of such findings because it
       has nothing to review but a "cold" record, yet allow a trial judge to make such
       findings based on nothing but that same "cold" record.

       Garcia v. State, 15 S.W.3d 533, 535 (Tex.Cr.App. 2000)(emphasis added).

       Almost all of evidence presented concerning the alleged voluntariness of Ms.

Cartwright’s statements was presented during the July 8, 2013 hearing over which

Judge Mitchell did not preside. The only new evidence presented at the second hearing

was that Miranda admonishments were given and that Ms. Cartwright allegedly

understood those rights. The second hearing did not delve into any of the issues

surrounding threats or inducements by officers, the officers demeanor during

questioning, or any other circumstances attendant to the interrogation.

       The only exception to the holding of Garcia occurs when the first Judge, who was

in a position to evaluate the testifying witnesses’ credibility, actually issued findings of

fact and conclusions of law that the second Judge could rely on in conjunction with the

reporter’s transcript:

       “As this statement makes clear, it was permissible for the second trial judge in
       Bass to decline to hold a hearing on the voluntariness of the confession because
       such a hearing had already been held and findings of fact and conclusions of law
       had previously been entered by the trial judge who presided over that hearing.
       That is, both the second trial judge and the appellate court could rely on written
       findings of fact and conclusions of law made by the judge who presided over the
       hearing and evaluated the credibility and demeanor of the witnesses. In the
       instant case, however, an order containing such an evaluation does not exist, and
       the only order which does exist was not based on a direct evaluation of the
       credibility and demeanor of the witnesses by the judge who made the written
       findings.”

       Garcia v. State, 15 S.W.3d 533, 536 (Tex.Cr.App. 2000).



	                                                                                             7	  
        Ms. Cartwright’s case simply does not satisfy that criterion. Therefore, Judge

Mitchell is not in a position to rule on the voluntariness of Ms. Cartwright’s statements

without conducting a de novo 38.22 hearing.

        Appellant Cartwright seeks the same relief ordered in the case Dronet v. State,

Appellee No. 09-11-00444-CR, Ct. of App. - Beaumont, May 2, 2013.

                       CONCLUSION AND PRAYER
        WHEREFORE, PREMISES CONSIDERED, the Appellant, Shakeitha Cartwright,

prays for an order abating this appeal, an order directing the trial court to hold de novo a

hearing under Art. 38.22, § 6, Tex. Code Crim. Proc., and following said hearing, to

prepare and file findings of fact and conclusions of law as to the voluntariness of

Appellant’s statements to law enforcement, and to file in the Appellate Court a

supplemental clerk’s record containing those findings, and for an order staying the

briefing schedule until the foregoing is accomplished.

        Only if Appellant’s first motion is denied, then Appellant alternatively prays for an

order, pursuant to Tex. Rule App. Proc. 34.5(c)(2), directing the trial court to prepare

and file findings of fact and conclusions of law as to the voluntariness of Appellant’s

statements to law enforcement, and to file in the Appellate Court a supplemental clerk’s

record containing those findings, in accordance with Art. 38.22, § 6, Tex. Code Crim.

Proc.

                                                          Respectfully submitted,



                                                          __________________________
                                                          Seth T. Johnson, #24082212
                                                          ATTORNEY FOR DEFENDANT
                                                          222 North Mound St. #1
                                                          Nacogdoches, TX 75961


	                                                                                          8	  
                                                         (P) 936-205-6775
                                                         (F) 936-715-3022
                                                         johnsondefenselaw@gmail.com
	  
                                 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion, was delivered via
electronic filing service to: Kenneth Florence, Shelby County District Attorney, on
February 16, 2015.



                                                         __________________________
                                                         Seth T. Johnson, #24082212




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