                             NUMBER 13-13-00479-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG
____________________________________________________________

STATE OF TEXAS,                                                              Appellant,

                                            v.

LARRY GREEN,                                        Appellee.
____________________________________________________________

             On appeal from the 319th District Court
                   of Nueces County, Texas.
____________________________________________________________

                         ORDER OF ABATEMENT

   Before Chief Justice Valdez and Justices Rodriguez and Longoria
                           Order Per Curiam
       Appellant, the State of Texas, has filed a motion requesting that this Court abate

this case and order the trial court to the enter findings of fact and conclusions of law in

support of its order granting appellee, Larry Green’s, motion to suppress.         For the

reasons set forth below, we grant the State’s motion.
                                            I. BACKGROUND

          On August 2, 2013, the trial court held an evidentiary hearing on appellee’s motion

to suppress evidence obtained by police officers in a warrantless search and seizure.

The State called four witnesses to testify about what happened. Two officers with the

Corpus Christi Police Department searched a garage-type, wooden shed owned by

appellee’s parents and seized evidence that they discovered in the shed. 1 The State

sought to prove that the search and seizure were conducted lawfully based on the

effective consent of appellee’s parents, who according to the State, had actual authority

to consent to the search and seizure. In the alternative, the State sought to prove that

the police officers acted in good faith reliance on the apparent authority of appellee’s

parents to grant effective consent. Additionally, the State presented testimony to prove

that the police officers observed various items, including marijuana and other contraband,

in plain sight upon entering the garage-type shed after obtaining oral consent from

appellee’s parents. At that point, according to the State and its witnesses, the police

officers exited the shed and requested and obtained from appellee’s father a written and

signed consent form, which according to the State, rendered the search and seizure

lawful.

          In support of his motion to suppress, appellee testified that he rented the shed from

his parents, that he had exclusive use and control of the premises, and that he was

occupying the premises as his personal residence. According to appellee, he protested



         1 The police officers arrived at the premises to conduct a sex offender registration check in which
their main purpose was to confirm residency requirements and specifically to confirm appellee’s residency
at his last known address. Appellee has five prior convictions for possession of child pornography and a
prior conviction for aggravated assault with a deadly weapon on a peace officer.
                                                     2
when the police officers entered the premises and began to search for evidence based

on the written consent form signed by his stepfather. Appellee testified that he did not

consent to the search or seizure. Appellee also testified that the marijuana and other

contraband were not in plain sight when the police officers entered the shed.

         After the testimony was concluded, the trial court heard the parties’ arguments.

The trial court asked the State a number of questions primarily focused on whether the

police officers had valid third party consent from appellee’s parents to search the garage-

type shed, where they found appellee concealed and observed the following items

purportedly in plain view: a plastic bag containing an unspecified amount of marijuana,

drug paraphernalia, syringes, cotton balls, and sundry items of a sexual nature, including

a DVD playing a pornographic movie, stained children’s clothing and underwear, a

vibrating child’s doll head, a lubricant attachment, doll parts located inside used children’s

underwear, magazines clippings of children and infants, and a cellular phone located

within a clear plastic bag, which was illuminated to show two nude small children bathing.

         From the transcript of the hearing, it is clear that the trial court was concerned with

whether the police officers had lawfully conducted the warrantless search and seizure.

The trial court asked the State’s attorney, “Why wouldn’t they need a warrant to go in

there?” The State’s attorney responded that appellee’s stepfather had granted the police

officers valid consent to search both the home and the shed. The trial court expressed

concern that the shed was not attached to the home and had a different address posted

on it.




                                                3
         The trial court also expressed concern about the validity of the consent purportedly

granted by appellee’s parents. The trial court commented, “But the other testimony

regarding the parents, it seems to indicate that they didn’t give the consent, even though

they signed this [referring to State’s Exhibit 1, the consent form that appellee’s father had

signed]. I understand, there are some inconsistencies.” The State then argued that

even if appellee’s parents lacked actual authority to grant consent or the consent was not

granted voluntarily, the police officers acted reasonably in relying on the apparent consent

in good faith.

         Next, the trial court questioned the State’s attorney about whether the police

officers got “the consent after they started going through [things] or before.” The State’s

attorney responded that the police officers’ testimony was that they obtained oral consent

before entering the shed. “However, once they found . . . [appellee] and located several

of these [aforementioned] items, they came back out and then asked for their written

consent.” The trial court then summed up the State’s account of what happened, “[So] .

. . they went in, when they started finding things they went out and thought better follow

up with a written consent?” The prosecution agreed. The following exchange then took

place:

         THE COURT: Is that permissible?

         [State’s attorney]: Absolutely, Your Honor. The oral consent is completely
         valid. However, to be digging around through things [, the police officers]
         probably needed a consent form.

         THE COURT: See that is why I am asking. They had right to be here
         because the sexual registration, they were there. They got oral consent to
         be where they were. Then they went out to the other part, which was not
         attached to the house, which had a number on it, and they went in, whether

                                              4
      you believe it was pushed, they went through a hole, whatever it was, they
      got in and started seeing things and that’s when they got a written consent;
      is that what you are saying?

      [State’s attorney]: Yes, Your Honor.

      THE COURT: And that takes care of all the problems, maybe?

      [State’s attorney]: Well, yes. Because the Defendant’s father gave them
      consent, written consent and oral consent to search, and those officers
      relied on it on good faith. And again, the exclusionary rule is to avoid police
      misconduct. If they cannot rely on consent given to . . . [them] by
      homeowners, then what is the consent law for?

      THE COURT: No, I agree. The oral consent. But when they went in and
      found the other things, they saw they had to get a written consent.

The State agreed. Based on the foregoing, the State asked the trial court to deny the

motion to suppress.

      Next, defense counsel argued as follows to the trial court:

      [Defense counsel]: So what we have is, we have a situation, this is the type
      of situation the case law talks about. When you have two passengers in a
      car or two people in a residence in a home, like a husband and a wife, and
      the husband says, “yeah, come search” and the wife says, “no, you can’t
      search.” That, “no”, is a negative, that eliminates the rights of the officer to
      rely on the consent.

      In this particular case, counsel is saying that the officer had the right to rely
      on the father’s statement to go and search. He didn’t say he said “go out
      there and search”, he says, “you can go out there and look, that’s where he
      works’.” Whether they want to believe that that meant to go in and search
      the garage, I don’t know. Whether that means force the doors open, I don’t
      know. To an officer maybe that’s their go ahead to do that. But, once they
      got . . . [appellee] out of that corridor, out of that little room, he says, “Don’t
      go through my things.” So if they had joint occupancy, he said, “Stop, don’t
      do it”; they don’t have a consent. What happens, they don’t have a written
      consent at that time either, Judge. Then the officer says I need or the
      lieutenant decides, hey we better get a search warrant or I mean a consent
      to search.

      THE COURT: That’s why I asked.

                                              5
       [Defense counsel]: That’s right.

       So then they go back to the house and they need the father and they say,
       we need you to sign this document so we could go in there and legally
       search, they’ve already searched; they already found the dope; they’ve
       already made the arrest; so they don’t have a good faith standing to rely on
       the consent of the father. The father did not and there is no written,
       consent to search the house. The father tells you they searched the house,
       “Did I stop them? No. You know, I am suppose[d] to respect the police, I
       didn’t stop them. They went through the doors in the house, they weren’t
       satisfied that he was staying there.”

       Defense counsel then focused on the evidence that appellee had exclusive use of

the shed and argued that appellee’s parents therefore could not give the police officers

valid third party consent. According to defense counsel, “the only issue that would allow

the officers to search in this particular case, is if the officer[s] in good faith, relied on the

father’s consent to search, and I don’t think you got that from the evidence in this case.”

       The State’s attorney responded as follows:

       Your Honor, this Defendant intends to make a mockery of this Court. He
       got up on the stand, he lied, and if you are basing -- if you’re challenging
       the credibility of the officers, a reverend, a chaplain, and a woman with 14
       years [of] experience versus a man who is a sex offender, with multiple
       felonies, and who clearly lies, and misrepresents to the Court; you are
       basically going at odds with two versions of what happened. The officers
       said he never uttered a peep, he didn’t say “Don’t go through my things.”
       He didn’t say anything like that. They relied on the father’s consent form
       and they relied on the parents’ consent to search, and there’s nothing in the
       record that make the officers liars and they have absolutely nothing to gain
       from this case or to lose. Currently, he is right, it does come down to
       whether or not he challenged the stop, the search, the actual, if he actually
       spoke up about the search. The officer said he didn’t say a word. And
       now he’s saying that he told his mom, “Tell them to stop going through my
       things”, we didn’t hear any of that from the mom.

       Your Honor, it’s pretty obvious what’s going on, this is a ruse, this is a way
       to avoid being punished on a failure to register. Again, I go back to
       standing, because this is a possession of marijuana case. We are here on

                                               6
       a failure to register, this evidence is for punishment, it’s not for the
       introduction in guilt/innocence.

       Your Honor, his parents came out here and said they’ve never gone back
       there, they don’t use that garage ever, it is part of their property, they pay
       taxes on it, they paid off the mortgage, but they’ve never gone back there?
       How do the officers know to push a little on the door if the Defendant’s father
       hadn’t told them how do it? It really just comes down to who you believe;
       the officers, with years and years of experience, the reverend, or the sex
       offender.

(emphasis added).

       The trial court then ruled from the bench as follows:

       Well, I’m not sure if it comes down to who is lying and who is not lying, that
       often happens in trials, I know. I’m not sure I buy everything the Defendant
       is selling. But the Court is experienced enough in these matters to know
       that this comes down to, frankly, it’s a legal issue. It has nothing to [d]o
       with the officers or whether I like them or not, I’m sure they’re fine gentlemen
       and ladies and they are doing what they are suppose[d] to be doing. But
       based on the case law, as I understand it, the Court is going to grant the
       motion to suppress. So that’s where we are. It has nothing to do with
       anything that I granted this motion to suppress, that just leaves it as a
       registration case, and I assure you that’s not going away.

       On August 21, 2013, the trial court entered a written order granting appellee’s

motion to suppress. The order did not state the basis for the trial court’s ruling. The

State filed its notice of appeal on September 4, 2013. On November 13, 2013, the State

filed its proposed findings of fact and conclusions of law. The record does not reflect any

action by the trial court on the State’s proposed findings and conclusions. The record

also does not reflect that the State presented its proposed findings and conclusions to the

trial court or that it did so timely.

       On December 27, 2013, the State filed its appellate brief in this cause. On appeal,

the State argues that appellee’s father had actual authority to consent to the search of his


                                              7
property, which included the shed, and that the police officers reasonably believed that

appellee’s father had apparent authority to consent to the search. The State argues that

once inside the shed, the police officers observed several seized items that were in plain

view, which the State explains, is a well cited exception to the search warrant requirement.

Based on the foregoing, the State asserts that the trial court erred in granting appellee’s

motion to suppress and requests that this Court vacate the trial court’s suppression order.

In the alternative, the State requests that the case be abated and remanded for findings

of fact and conclusions of law.

       On March 16, 2014, appellee filed his appellate brief. Appellee argues that “[t]he

trial court was of the opinion that this was a legal issue that would not come down to who

is lying or not.” Appellee argues further that he had a reasonable expectation of privacy

in his leasehold (i.e., the shed) and therefore has standing to contest the warrantless

search and seizure conducted in his private leasehold.            According to appellee, his

stepfather did not have actual authority to consent to a police search of appellee’s private

leasehold. Appellee also argues that the State cannot rely on its alternative argument

that appellee’s father had apparent authority to consent because it did not raise that issue

before the trial court and because the police officers’ remedial actions do not support that

theory. Finally, appellee argues that the State cannot rely on the plain view doctrine

because the police officers did not discover anything in “plain view” until after they had

entered and were inside the shed.

       On May 5, 2014, the State filed a motion asking this Court to abate this case and

remand it to the trial court for the entry of findings of fact and conclusions of law in support


                                               8
of the trial court’s suppression order. In the motion, the State contends that upon its

request as the losing party in a motion to suppress proceeding, it is entitled to findings of

fact and conclusions of law, as set forth in State v. Cullen, 195 S.W.3d 696 (Tex. Crim.

App. 2006). According to the State, the Cullen requirement places no time limit on such

a request.

       On May 8, 2014, appellee filed his motion in opposition to the State’s motion to

abate and remand. Appellee argues that the State’s request is not timely because it was

not made within twenty days of the suppression order.           Appellee requests that this

appeal move forward and be decided based on the record before this Court.

                                        II. ANALYSIS

       As set forth above, the State has requested that this Court abate the case and

order the trial court to enter findings of fact and conclusions of law in support of its

suppression order.

A. Applicable Law & Standard of Review

       “[F]actual findings are who did what, when, where, how, or why.”               State v.

Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008). “They also include credibility

determinations.”   Id. “They do not include legal rulings on ‘reasonable suspicion’ or

‘probable cause.’” Id.

       Historically, “when the trial court fails to file findings of fact, we 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 as long as those findings are supported by

the record.” Cullen, 195 S.W.3d at 698. However, the Texas Court of Criminal Appeals


                                              9
has observed that “[t]he refusal of trial courts to enter findings of fact when timely

requested by the State leaves appellate courts with nothing to review except a one-word

ruling and forces the courts of appeals to make assumptions about the trial court’s ruling.”

Id. The Court has also observed, “[t]he ruling could be based on a mistake of law, on

the trial court’s disbelief of the testimony presented, or even on a clerical error.” Id.

“There is the possibility that we are basing our entire appellate review on the wrong word

being circled.” Id. Based on the foregoing, the Court concluded in Cullen that “the

proper solution to this problem is to require the trial courts to enter findings of fact and

conclusions of law when ruling on a motion to suppress evidence.” Id.

       In Cullen, the Court noted that “Rule 44.4 [of the Texas Rules of Appellate

Procedure] authorizes the court of appeals to remand the case to the trial court so that

the court of appeals is not forced to infer facts from an unexplained ruling.” Id. (citing

TEX. R. APP. P. 44.4). The Court also noted that “the efficient administration of justice

will be served by a requirement that trial judges respond to a request for findings of fact

and conclusions of law.” Id. at 699. In Cullen, the Court articulated the following rule:

       Effective 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.

Id. In Cullen, the Court also noted that “the trial court has 20 days from the date of its

ruling in which to file findings of fact if it has not already made oral findings on the record.”

Id. at 699–700. This suggests that the losing party will forfeit its right to findings of fact

and conclusions of law if it fails to request them within twenty days of date that the trial

                                               10
court rules on the motion to suppress; however, subsequent decisions have clarified that

this is not the case.

       For instance, in State v. Elias, the Court held that even if the losing party does not

request findings of fact and conclusions of law, “the trial court, once having taken it upon

itself to enter specific findings and conclusions sua sponte, . . . assumed an obligation to

make findings and conclusions that were adequate and complete, covering every

potentially dispositive issue . . . .” State v. Elias, 339 S.W.3d 667, 676 (Tex. Crim. App.

2011). Then, in State v. Saenz, the Court held that “an appellate court must abate for

additional findings of fact when a party has requested findings of fact and the findings that

are made by a trial court are so incomplete that an appellate court is unable to make a

legal determination.” State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim. App. 2013).

Accordingly, “reviewing courts need not presume, assume, or guess at what historical

facts a trial judge actually found when making a ruling in a motion to suppress hearing.”

State v. Mendoza, 365 S.W.3d 666, 671 (Tex. Crim. App. 2012). Our decisions must be

“based on the reality of what happened rather than on assumptions that may be entirely

fictitious.” Id. (quotation omitted).

B. Discussion

       Despite the new requirement that trial courts must enter findings of fact and

conclusions of law in support of their suppression rulings upon the timely request of the

losing party, the parties dispute whether Cullen and its progeny require this Court to abate

and remand this case to the trial court for it to enter findings and conclusions. For the




                                             11
reasons set forth below, we agree in part with the positions advanced by both sides. We

begin by noting the shortcomings in the State’s position.

        First, the State has not identified any disputed issue of fact that would be

dispositive to the appeal. State v. Weaver, 349 S.W.3d 521, 528 n.34 (Tex. Crim. App.

2011) (declining to remand the case to the trial court “to enter a specific finding on a

disputed fact that is dispositive to the appeal” after concluding “that, based on the record,

[the fact] is not in dispute”). In support of its motion, the State merely asserts that under

Cullen, it is entitled to findings of fact and conclusions of law upon its request as the losing

party and that there is no requirement that the request be made timely. Other than that,

the State has not explained why the relief it requests is necessary and appropriate in this

case.

        Second, in decisions issued after Cullen, the Texas Court of Criminal Appeals has

continued to consider whether the losing party “timely requested findings and conclusions

from the trial court.” State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006) (stating

that “when the trial court makes no explicit fact findings and neither party has timely

requested findings and conclusions from the trial court . . . , the appellate court implies

the necessary fact findings that would support the trial court’s ruling if the evidence

(viewed in the light most favorable to the trial court’s ruling) supports these implied fact

findings”) (emphasis added). In this case, the State waited nearly three months after the

trial court entered its suppression order before it submitted its proposed findings of fact

and conclusions of law. In Cullen, the Texas Court of Criminal Appeals stated that after

ruling on a motion to suppress, the trial court has twenty days to enter findings and


                                              12
conclusions. Cullen, 195 S.W.3d at 699–700 (“[T]he trial court has 20 days from the date

of its ruling in which to file findings of fact if it has not already made oral findings on the

record.”). Here, the State’s proposed findings and conclusions were filed well outside

the twenty day window.

       Third, the Texas Court of Criminal Appeals has also stated that “a request [for

findings of fact and conclusions of law] is best accomplished by a formal motion for

findings of fact and conclusions of law, made either on the record in open court or by

written motion and timely presentation to the trial court.” State v. Oages, 210 S.W.3d

643, 644 n.3 (Tex. Crim. App. 2006). In this case, the State filed its proposed findings

and conclusions, but it did not file a formal motion requesting that the trial court enter

findings and conclusions. In addition, there is nothing in the record to indicate that the

State ever presented its proposed findings and conclusions to the trial court or that it did

so timely.

       Fourth, the Texas Court of Criminal Appeals has also explained that “[o]n its face,

Rule 44.4 authorizes a remand to the trial court only when the record is inadequate to

present a claim due to some ‘erroneous action or failure or refusal to act’ on the part of

the trial court, as opposed to one of the parties.” Davis v. State, 345 S.W.3d 71, 75 (Tex.

Crim. App. 2011) (quoting TEX. R. APP. P. 44.4(a)(1)). Thus, “a Rule 44.4 remand to

allow the trial court to enter findings of fact and conclusions of law [is appropriate] when .

. . [the trial court] erroneously failed to do so, upon request of the losing party . . . .” Id.

To the extent that the State’s proposed findings and conclusions operated as a request

for the trial court to enter findings and conclusions in support of its suppression order, the


                                              13
State’s request was not made within the twenty day window set forth in Cullen. Cullen,

195 S.W.3d at 699–700. Therefore, it could be argued that the trial court did not err in

failing or refusing to act on the request, which if true, would mean that the remedial

purpose of Rule 44.4 has not been triggered in this case and that the State is therefore

not entitled to the relief it requests in its motion to abate and remand. See LaPointe v.

State, 225 S.W.3d 513, 522 (Tex. Crim. App. 2007) (“The key to Rule 44.4 is that there

must be an error that the appellate court can correct . . . .”).

       Fifth and finally, there is the State’s argument—albeit an inadequately briefed

argument—that it was not required to make its request timely. We reject this argument

because the State has cited no authority in support of it.         Furthermore, the State’s

argument is inconsistent with Cullen, which suggests that the trial court has a twenty day

window to enter requested findings and conclusions. Cullen, 195 S.W.3d at 699–700.

Moreover, the State’s argument is also inconsistent with decisions issued after Cullen,

such as Oages and Kelly, in which the Texas Court of Criminal Appeals continued to

consider whether there was a “timely” request. Oages, 210 S.W.3d at 644 n.3; Kelly,

204 S.W.3d at 819.

       Despite the foregoing, however, we recognize the powerful thrust of Cullen’s

mandate “insisting that the findings be expressed by the trial court when requested by the

losing party.” Cullen, 195 S.W.3d at 699. Again, under Cullen, “the requirement is . . .

[that] upon the request of the losing party on a motion to suppress evidence, the trial court

shall state its essential findings.” Id. In this case, after the State lost on appellee’s

motion to suppress, it filed its proposed findings of fact and conclusions of law, thereby


                                              14
triggering the trial court’s duty under Cullen to enter its essential findings.     See id.

Furthermore, the trial court’s failure to enter findings and conclusions upon the State’s

request leaves this Court “with nothing to review except a one-word ruling,” and unless

the omission is corrected by an appropriate order, this Court will be forced “to make

assumptions about the trial court’s ruling.” Id. at 698. The Texas Court of Criminal

Appeals has held “that courts of appeals should not be forced to make assumptions (or

outright guesses) about a trial court’s ruling on a motion to suppress evidence.” Id.

Therefore, “Rule 44.4 authorizes the court of appeals to remand the case to the trial court

so that the court of appeals is not forced to infer facts from an unexplained ruling.” Id.

Additionally, Rule 43.6 states, “The court of appeals may make any other appropriate

order that the law and the nature of the case require.” TEX. R. APP. P. 43.6. Again, the

law requires that “upon request by the losing party in a motion to suppress evidence, a

trial judge must enter findings of fact and conclusions of law so that the appellate courts

can better review the decision of the trial court without speculating about the reasons for

the trial court’s decision.” Castro v. State, 227 S.W.3d 737, 743 (Tex. Crim. App. 2007).

Here, that was not done. Therefore, we conclude that it is appropriate to grant the State’s

motion.

       In sum, we have concluded that the State has made a sufficient, though in our

view, minimalistic, effort to request findings of fact and conclusions of law from the trial

court pursuant to Cullen. Although the State erroneously asserts that it was not required

to make its request timely, we have rejected that assertion because it is inconsistent with

Cullen and its progeny. We hold that the State’s request was timely because it was made


                                            15
after the trial court’s ruling on the motion to suppress, which “is interlocutory in nature”

and “which a trial court may revisit at its discretion at any time,” and because the State

made its request before its appeal was submitted to this Court for final disposition. Black

v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012).

       We note that other courts have denied relief similar to what the State requests in

this case, even when it was undisputed that the State made a timely request. See, e.g.,

State v. Froid, 301 S.W.3d 449, 450–51 (Tex. App.—Fort Worth 2009, no pet.) (overruling

the State’s request to remand appeal for additional findings and conclusions because “the

State voiced no objection to the adequacy of the trial court’s findings of fact or the

appropriateness of its conclusions of law in the trial court”). However, we believe that

the fair and efficient administration of justice would be “well served to allow

supplementation of the record with the findings of fact that appellant had requested.”

Meekins v. State, 340 S.W.3d 454, 465 (Tex. Crim. App. 2011). The Texas Court of

Criminal Appeals has emphasized that “appellate courts should have the trial judge’s

findings of fact before disagreeing with that judge’s ruling on a motion to suppress.” Id.

       In this case, it is unclear what the basis was for the trial court’s ruling. At the

hearing, the trial court hinted at one possible basis for its ruling when it asked the State,

“Why wouldn’t they need a warrant to go in there [into the shed]?” When the State

invoked the doctrine of consent, the trial court expressed concern about the validity of the

consent appellee’s parents purportedly granted to the police officers, commenting, “But

the other testimony regarding the parents, it seems to indicate that they didn’t give the

consent, even though they signed this [referring to State’s Exhibit 1, the consent form that


                                             16
appellee’s father had signed]. I understand, there are some inconsistencies.” The trial

court thus acknowledged that there were conflicts in the evidence regarding the issue of

consent.

       Also on the issue of consent, the trial court appears to have indicated its belief that

written consent was required to search the shed by commenting that when the police

officers went into the shed “and found the other things, they saw they had to get a written

consent.” The State agreed with that proposition. The State’s attorney told the trial

court that “to be digging around through things[, the police officers] probably needed a

consent form.” The trial court asked whether the police officers obtained “the consent

after they started going through [things] or before,” indicating that there was a question

regarding the timing and chronology of the events involving the search and seizure and

the purported consent. This was reinforced by defense counsel, who argued that the

police officers obtained the written consent from appellee’s stepfather after conducting

the search and seizure: “then they go back to the house and they need the father and

they say, we need you to sign this document so we could go in there and legally search,

they’ve already searched; they already found the dope; they’ve already made the arrest;

so they don’t have a good faith standing to rely on the consent of the father.” Again,

there are issues of fact involving conflicts in the evidence that the finder of fact must

resolve in the first instance based on the evidence presented at the hearing.

       The trial court also called into question the validity and effectiveness of the written

consent signed by appellee’s father, commenting that it “takes care of all the problems,




                                             17
maybe . . . .” Here, the trial court was clearly contemplating how the law should be

applied to the facts of the case and questioned what the result would be.

       In rebuttal, the State agreed with defense counsel that “it does come down to

whether or not he challenged the stop, the search, the actual, if he actually spoke up

about the search.” The State’s attorney reminded the trial court that “[t]he officer said he

[referring to appellee] didn’t say a word” and then pointed out that there was a conflict in

the evidence because “now . . . [appellee is] saying that he told his mom, ‘Tell them to

stop going through my things . . . .’” The State’s attorney told the trial court, “[W]e didn’t

hear any of that from the mom.” The State’s attorney emphasized that the case turned

on a question of fact: “It really just comes down to who you believe; the officers, with

years and years of experience, the reverend, or the sex offender.”

       Yet, the trial court said it was “not sure if it comes down to who is lying and who is

not lying . . . .” The trial court also stated, “I’m not sure I buy everything the Defendant

is selling,” thus indicating that the court disbelieved some portion of appellee’s testimony.

However, it is unclear which portion of the testimony that was.

       Finally, we recognize that the trial court stated that ultimately, “it’s a legal issue.”

Although we agree that the lawfulness of the search and seizure is an issue of law, there

are many questions regarding how the trial court reached its decision to grant the motion

to suppress. For instance, what were the underlying historical facts? How did the trial

court resolve the conflicts in evidence regarding those facts? What law did the trial court

apply to the facts of the case? Which arguments did it accept? Which arguments did it

reject? The questions could be phrased in a number of different ways, but ultimately,


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the problem is that we do not have the trial court’s “essential findings,” as defined in

Cullen. Cullen, 195 S.W.3d at 699.

       At the conclusion of the hearing, the trial court stated that it was granting the motion

to suppress “based on the case law,” but which case law was that? Perhaps the trial

court was referring to the decision of the United States Supreme Court in Georgia v.

Randolph, 547 U.S. 103, 122–23 (2006), holding that the consent of one occupant is

insufficient when another occupant is physically present and objects to the search. Or it

could have been a reference to the decision of the Texas Court of Criminal Appeals in

Hubert v. State, 312 S.W.3d 554, 556–57 (Tex. Crim. App. 2010), holding that a

“grandfather had actual authority to consent to a search of the appellant’s bedroom” in a

“house they shared” after police officers arrived at the house, found the appellant on the

porch, arrested him based on an arrest warrant, and placed him in their squad car. Of

these two cases, both of which defense counsel provided to the trial court at the hearing

on the motion to suppress, Randolph seems to be the more likely basis for the trial court’s

ruling. However, we are required to base our decision in this case on what actually

happened, not on guesswork. To the extent that Randolph is relevant to the trial court’s

ruling, we note that the United States Supreme Court subsequently revisited the issue in

Fernandez v. California, 134 S.Ct. 1126 (Feb. 25, 2014).

       Again, it is possible that the trial court granted the motion to suppress after

concluding that the purported consent by one or both of appellee’s parents was not valid,

but to review the ruling on this record, we would require guesswork and speculation about

how and why the trial court reached such a conclusion. And even then, it is entirely


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possible that the trial court could have had a completely different basis for its ruling that

we simply have not considered or anticipated because the record is silent.

       Under these circumstances, the more prudent course of action is to abate the case

with instructions for the trial court to enter findings of fact and conclusions of law in support

of its ruling on appellee’s motion to suppress, as requested by the State.

                                        III. CONCLUSION

       Accordingly, we GRANT the State’s motion. The State has requested findings of

fact and conclusions of law as the losing party in a motion to suppress proceeding. On

this record, this Court has no basis to review the trial court’s application of the law to the

facts of the case. Therefore, we conclude that the fair and efficient administration of

justice requires this Court to abate this case and order the trial court to state the essential

findings for its ruling and to include them in a supplemental clerk’s record to be filed with

the Clerk of this Court within thirty days of the date of this order.

       IT IS SO ORDERED.



                                                    PER CURIAM



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

Delivered and filed the
19th day of May, 2014.




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