                           NUMBER 13-13-00085-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG
____________________________________________________________

STATE OF TEXAS,                                                          Appellant,

                                         v.

T.W. LEE NELSON,                                    Appellee.
____________________________________________________________

              On appeal from the 28th District Court
                   of Nueces County, Texas.
____________________________________________________________

                            Order of Abatement
            Before Justices Benavides, Perkes, and Longoria
                           Order Per Curiam

      This case is before this Court on the State’s appeal of the trial court’s order

granting appellee’s motion to suppress. See TEX. CODE CRIM. PRO. ANN. art. 44.01(a)(5)

(West Supp. 2011). For the reasons set forth below, we abate.
       A. Applicable Law

       Upon the timely request of the losing party in a motion to suppress, the trial court is

required to issue 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.”

State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing State v. Cullen, 195

S.W.3d 696, 699 (Tex. Crim. App. 2006)).

       B. Standard of Review

       We give almost total deference to the trial court’s finding of historical fact so long

as the record supports them, especially when the findings “are based on an evaluation of

credibility and demeanor.”     Id. at 673.    The Texas Court of Criminal Appeals has

explained that when the trial court’s findings of historical fact are ambiguous, instead of

assuming that the trial court found a certain way, the better course is to remand to the trial

court for supplemental findings of fact. State v. Mendoza, 365 S.W.3d 666, 673 (Tex.

Crim. App. 2012) (“Just as the trial judge was best positioned to evaluate the officer’s

credibility at the hearing, so she is in the best position to clarify her ambiguous factual

findings.”).

       C. Discussion

       The trial judge found that Nelson was detained at the time Officer Saldana stopped

his patrol vehicle. On appeal, the State challenges this ruling. However, the trial judge

did not articulate the rationale for her ruling. Specifically, she did not explain how Officer

Saldana’s conduct in stopping his patrol vehicle caused Nelson, a pedestrian who was

walking on a sidewalk, to be detained.


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       We note that “a person has been seized when a reasonable person in his position

would believe he is not free to leave.” Johnson v. State, 912 S.W.2d 227, 234 (Tex.

Crim. App. 1995) (en banc). “A show of authority, without an application of physical

force, to which a suspect does not yield is not a seizure under the Fourth Amendment.”

Id. “[A] person has not been seized until he has yielded to a law enforcement officer's

show of authority or when officers physically limit his movement.” Id.

       With the foregoing in mind, we respectfully request that the trial judge issue

supplemental findings of fact and conclusions of law to clarify the basis for her ruling with

respect to how and when Officer Saldana detained Nelson. In doing so, we recognize

that the trial judge heard conflicting testimony from Officer Saldana and Nelson about

what happened on the night in question.

       For instance, Officer Saldana testified that he stopped his patrol vehicle—and with

his window rolled down—merely asked Nelson the question, “Hey man, you okay?” If

the trial judge accepted this version of events, it is unclear how a detention could have

been effectuated, unless the judge found that Nelson submitted to the officer’s authority

because the officer made such a showing of authority that, given the totality of the

circumstances, a reasonable person in Nelson’s position would believe he is not free to

leave. But again, it is unclear how Officer Saldana made such a showing or if Nelson

yielded to it. However, we recognize that the trial judge did not necessarily accept

Officer Saldana’s testimony—specifically, that he asked the question, “Hey man, you

okay?” She could have found that Officer Saldana said something else or that he asked

a question that was actually more of a command, such as “Hey man, come on up here


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and talk to me up here,” as Officer Saldana also testified that he asked later. Again, the

judge’s findings and conclusions are silent on these points, and the more prudent

approach is to seek clarification from the judge rather than base our decision on

assumptions that could be entirely incorrect.

       In contrast, Nelson testified that Officer Saldana exited his patrol vehicle,

approached Nelson, asked him if he was walking home, and then physically limited

Nelson’s movement by grabbing his wrist. If the trial judge accepted this version of

events, then we trust that she will enter findings stating that Officer Saldana physically

limited Nelson’s movement. But we recognize that in this scenario, the detention would

have occurred after Officer Saldana stopped his patrol vehicle, not contemporaneously

with it as the trial court originally found. Again, if the trial judge accepted Nelson’s

version of events in this regard, we trust that she will amend her findings to state that the

detention occurred when Officer Saldana physically limited Nelson’s movement.

       We recognize that the trial judge is the sole finder of fact in the hearing on a motion

to suppress. Mendoza, 365 S.W.3d at 669. She is free to accept or reject all or any part

of a witness’s testimony. Id. It is her role to resolve conflicts in the testimony and to

determine the weight to be given to the evidence. Id. We also note that the conflicting

testimony pertains to historical facts, which form the totality of the circumstances. And

we will give virtually total deference to the trial court’s findings of historical facts as long as

the record supports them, especially when they are based on an evaluation of credibility

and demeanor.        Elias, 339 S.W.3d at 674.          However, we are required to seek

clarification from the trial judge regarding the basis for her ruling since the rationale is


                                                4
ambiguous or unclear, the evidence was conflicting, and we are uncertain about whether

the judge found that the detention occurred when Officer Saldana stopped his patrol

vehicle or subsequently, after other events occurred.

       Accordingly, we abate the case and remand to the trial court for the entry of

supplemental findings and conclusions on these issues. See TEX. R. APP. P. 44.4(b).

The supplemental findings and conclusions should be included in a supplemental clerk’s

record and filed with this Court within thirty days of the date of this order. If the judge

cannot comply with this order within the time specified, we respectfully request that she

advise this Court regarding the amount of additional time needed to comply.

       It is so ORDERED



                                                PER CURIAM



Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
15th day of November, 2013.




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