           r-iLcu iin                                                                          AP-76,05
COURT OF CRIMINAL APPEALS                                                  COURT OF CRIMINAL APPEAL
                                                                                           AUSTIN, TEXA
      November 5 2015                                                     Transmitted 11/5/2015 8:26:01 Af
                                                                            Accepted 11/5/2!pJ 5 8:46:54 Af
   ABEL ACOSTA, CLERK                  NO. AP-76,051                       \AN^>^^-                 CLER
    MANUEL VELEZ                           § IN THE
                                                                          ti%\ ^l
                                                                         w^ -                       r
     VS.                                    §      COURT OF CRIMINAL APPEALS

     STATE OF TEXAS                         §      STATE OF TEXAS

                             STATE'S MOTION TO PUBLISH


     TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:


            The State, by and through its District Attorney, 268th Judicial District, Fort

     Bend County, asks this Court to reconsider its decision to not publish its opinion in

     the above-referenced case, Velez v. State, No. AP-76,051, 2012 WL 2130890 (Tex.

     Crim. App. June 13, 2012).

            In Velez, this Court distinguished Garcia v. State, 15 S.W.3d 533, 536 (Tex.

     Crim. App. 2000), in which a de novo suppression hearing was ordered because a

    judge, other than the judge who heard the hearing, made findings of fact and

    conclusions of law on a cold record. Garcia, 15 S.W.3d at 534-35. In Garcia,

    testimony was taken from the officer who took Garcia's confession and from Garcia.

    Id. at 535. "Thus, the trial court's conclusion that [Garcia's] statement was voluntary

    was based on a direct evaluation of the witnesses' credibility and demeanor." Id.

            In Velez, the judge who held the suppression hearing was succeeded by a new

    trial judge. Velez, 2012 WL 2130890, at *13. The new trial judge prepared findings


                                                              ELECTRONIC
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and conclusions based on the record of the suppression hearing and the prior judge's

ruling that the statement was voluntarily made. Id. This Court distinguished Garcia,

"In Garcia, however, we did not specifically address the rare situation that presents

itselfhere, wherein the prior judge cannot be appointed to prepare findings of fact and

conclusions of law because of unavailability or ineligibility." Id. This Court took

note of the "peculiar circumstances" of the case:

      While the record does not include the reason the presiding judge of the
      Fifth Administrative Region did not appoint the prior judge to prepare
      findings and conclusions, we take note of the readily available public
      information indicating that the prior judge is currently unavailable for
      appointment. In such a situation, where the prior judge is unavailable or
      ineligible for an appointment, we find it appropriate that there be an
      exception to the rule laid out in Garcia. In the event that the judge who
      presided over a suppression hearing is unavailable or ineligible to be
      appointed to prepare findings of fact and conclusions of law, the current
      trial judge may prepare findings and conclusions based on the prior
      judge's ruling on the record and the transcript ofthe suppression hearing
      regarding whether a defendant's statement was voluntarily made.

      We recognize that the original trial judge, who is uniquely situated to
      observe the demeanor of witnesses first-hand, is generally in the best
      position to assess the credibility of witnesses. See Ex parte Reed, 271
      S.W.3d 698, 727 (Tex. Crim. App. 2008). In this rare circumstance, the
      trial judge making the findings and conclusions did not observe the
      demeanor of the witnesses because she did not preside over the
      suppression hearing. However, she refrained from making any explicit
      credibility determinations. Thus, we will accept the new trial judge's
      findings and conclusions, and we will review the record to determine if
      they are supported by the evidence.

Velez, 2012 WL 2130890, at *13.
      If published, Velez could be cited as precedential authority for allowing a

successor trial judge to make findings of fact and conclusions of law when (1) the

judge who heard the suppression hearing is deceased or otherwise unavailable, and (2)

no explicit credibility determinations need be made.

      In Luis Carlos Rodriguez v. State, No. 01-14-00774-CR, the trial judge who

heard the suppression hearing, Hon. Thomas Culver III, passed away in September

2015. Mr. Rodriguez did not testify at the suppression hearing, and the facts are

undisputed. No explicit credibility determinations need be made. The two Velez

factors that would allow a successor judge to make findings and conclusions are met.

      However, as shown in the attached motion to abate the appeal, Mr. Rodriguez

is asking for a de novo suppression hearing because Judge Culver is deceased. [Mtn

at 2] The State would like to cite Velez as precedential authority in response.

However, Rule ofAppellate Procedure 77.3 provides that this Court's "[ujnpublished

opinions have no precedential value and must not be cited as authority by counsel or

by a court." Tex. R. App. P. 77.3. The Court's holding in Velezhas not been adopted

by this Court in a published opinion, and thus should not be cited.

      This Court's holding in Velez was applicable in at least one other case, Pavon-

Maldonado v. State, No. 14-13-00944-CR, 2015 WL 1456523, at *4 n.5 (Tex. App.~

Houston [14th Dist.] Mar. 26, 2015, no pet.) (mem. op. not designated for
publication).

      "The Court ofCriminal Appeals may, at any time, order that a "do not publish"

notation be changed to "publish." Tex. R. App. 47.2(b) (albeit with regard to opinions

of the courts of appeals). The State believes that Velez, established an exception to

Garcia that will save scarce state and judicial resources when a defendant has been

afforded a pre-trial hearing on his suppression motion, the trial judge passes away, or

is otherwise unavailable, and the facts adduced at the suppression hearing are

undisputed and no explicit credibility determinations need be made.
      WHEREFORE, PREMISES CONSIDERED, the State asks this Court to grant

its motion to publish that part of its opinion in this cause addressing Point of Error

Ten so that the opinion may be cited for its precedential value.

                                              Respectfully submitted,

                                              John F. Healey, Jr.
                                              SBOT # 09328300
                                              District Attorney, 268th Judicial District
                                              Fort Bend County, Texas

                                              /s/ Gail Kikawa McConnell
                                              Gail Kikawa McConnell
                                              SBOT# 11395400
                                              Assistant District Attorney
                                              301 Jackson Street, Room 101
                                              Fort Bend County, Texas 77469
                                              (281) 238-3205 / (281) 238-3340 (fax)
                                              Gail.McConnell@fortbendcountytx.gov
                          CERTIFICATE OF SERVICE


      I hereby certify that on November 5, 2015, a copy of the State's motion to
publish was served on :

L.J. Rabb, Assistant District Attorney, Cameron County, by e-service or email
<lrabb@co.cameron.tx.us>;

Brian W. Stull, Attorney for Manuel Velez, by first class mail, return receipt requested
# 7013 0600 0002 2111 7188, 201 W. Main St, Ste 402, Durham, N.C. 27701-3228;

Mr. Stephen Doggett, Attorney for Louis Carlos Rodriguez, by e-service or email
<office@doggett-law.com>:

Ms. Lisa McMinn, State Prosecuting Attorney,                by   e-service or email,
<Lisa.McMinn@SPA.texas.gov>


                                               Isi Gail Kikawa McConnell
                                               Gail Kikawa McConnell
                                                                                             AP-76,05
          FILED IN                                                       COURT OF CRIMINAL APPEAL
COURT OF CRIMINALAPPEALS                                                                 AUSTIN, TEXA
                                                                        Transmitted 11/5/2015 8:51:36 Al
       November 5, 2015
                                                                          Accepted 11/5/2015 8:52:59 Af
                                                                                          ABEL ACOST,
   ABELACOSTA, CLERK                NO. AP-76.051
                                                                                                  CLER


 MANUEL VELEZ                            §      IN THE

 VS.                                     §      COURT OF CRIMINAL APPEALS

 STATE OF TEXAS                          §      STATE OF TEXAS

                          AMENDED CERTIFICATE OF SERVICE


       I hereby certify that on November 5, 2015, a copy of the State's motion to
 publish was served on :

 Rene Gonzalez, Assistant District Attorney, Cameron County, by e-service or email
 <rgonzalez1@co. cameron.tx.us>;

 Brian W. Stull, Attorney for Manuel Velez, by first class mail, return receipt requested
 # 7013 0600 0002 2111 7188, 201 W. Main St, Ste 402, Durham, N.C. 27701-3228;

 Mr. Stephen Doggett, Attorney for Louis Carlos Rodriguez, by e-service or email
 <office@doggett-law.com>;

 Ms. Lisa McMinn, State Prosecuting Attorney,                by   e-service or email,
 <Lisa.McMinn@SPA.texas.gov>


                                                Isi Gail Kikawa McConnell
                                                Gail Kikawa McConnell




                                                                  ELECTRONIC
                                                                     RECORD
                                                                                                   ACCEPTED
                                                                                               01-14-00774-CR
                                                                                      FIRST COURT OF APPEALS
                                                                                              HOUSTON. TEXAS
                                                                                          10/30/20131:49:24 PM
                                                                                          CHRISTOPHER PRINE
                                                                                                       CLERK


                                 COURT OF APPEALS

                     FIRST SUPREME JUDICIAL DISTRICT                       FILED in
                                                                    1st COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                  HOUSTON, TEXAS                    -, 0/30/2015 1:49:24 PM
                                                                    CHRISTOPHER A. PRINE
                                                                             Clerk

LUIS CARLOS RODRIGUEZ

                      Appellant

VS.                                             NO. 01-14-00774-CR
                                                (TR. CT. NO. 07-DCR-046309)

THE STATE OF TEXAS

                      Appellee

       APPELLANT'S MOTION TO ABATE APPEAL FOR ENTRY OF
      FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING
                      DENIALS OF MOTION TO SUPPRESS

      After a pre-trial hearing, Judge Thomas Culver III denied appellant's motion
to suppress appellant's oral and written statements. CR 72, 4 RR 147. Judge Culver
did not make any written findings in fact and conclusions of law and did not dictate
such findings and conclusions into the record. CR 72,4 RR 147.

       If the trial court finds beyond a reasonable doubt thatthe confession is
voluntarily made and admissible as a matter of law and fact, thejudge prepares and
signs an order stating these findings. The order is filed among the papers of the
cause. CCP Art. 38.22 § 6; Green v. State, 906 S.W.2d 937 (Tex. Crim. App.
1995).

      The findings must be filed whether ornot the defendant requests them, and
ifthey are not filed the appeal will be abated for their preparation. Wicker v. State,
740 S.W.2d 779 (Tex. Crim. App. 1987); Urias v. State, 155 S.W.3d 141 (Tex.
Crim. App. 2004).

         Art. 38.22, sec. 6 clearly requires thatthe trial court make findings of fact
and conclusions of law in all cases concerning voluntariness, whether or not
requested by a party. The statute has no exceptions. Vasquez v. State, 411 S.W.3d
918, 920 (Tex. Crim. App. 2013).

      The findings of fact and conclusions must be made by the judge who heard
the testimony at the hearing and not by a succeeding judge. Garcia v. State, 15
S.W.3d 533 (Tex. Crim. App. 2000). If that judge is unavailable for any reason to
prepare them, the case must be abated for another voluntariness hearing. Garcia v.
State, 15 S.W.3d 533 (Tex. Crim. App. 2000).

       Guidry v. State, 12 S.W.3d 15 (Tex. Crim. App. 1999) holds that the
findings must be sufficiently detailed to enable the appellate court to determine the
basis for the trial court's ruling and to assist the appellate court in determining the
sufficiency of the evidence to supportwhatever unstated findings of fact were
made by the fact finder. Guidry. The findings of fact and conclusions of law must
be made by the judge that heard the testimony.

      Judge Culver is deceased. Appellant moves the Court to remand this case for
another voluntariness hearing.

       During the trial, a second hearing was conducted outside the presence of the
jury. Appellant objected to the admission of his statements on constitutional and
statutory grounds and for the reason that the original recording of the statement
could not be located and that the accuracy of any copies and transcripts of the
statement were questionable. 8 RR 125-134, 138-152, 155, 211-214, 220-223.
Judge Duggan overruled appellant's motion to suppress and motion to determine
admissibility of statement. CR 180, 186-187; 8 RR 220-221. Judge Duggan did not
dictate any findings of fact or conclusions of law, except a finding that there was
not bad faith destruction or loss of the recording of the statement by the District
Attorney and State agents. 8 RR 219,220-221. Judge Duggan made no written
findings of fact or conclusions of law except a statement in the orderon the motion
to determine admissibility statement "that the conditions were met" and that
appellant made a knowing, intelligent, and voluntary waiver of the rights specified
in the Code. CR 186-187.

      These findings are inadequate to support the denial of appellant's motion to
suppress. Where the trial court's findings are ambiguous, an appellate court can
remand the case for supplemental findings. State v. Mendoza, 365 S.W.3d 666, 673
(Tex. Crim. App. 2012).

      Appellant requests that this case be remanded for the entry of adequate
findings of fact and conclusions of law sufficiently detailed to enable the appellate
court to determine the basis for the trial court's ruling and to assist the appellate
court in determining the sufficiency of the evidence to support whatever findings
of fact were made by the fact finder. Guidry v. State, 12 S.W.3d 15 (Tex. Crim.
App. 1999).

                                              Respectfully submitted,


                                              /s/ Stephen A. Doggett
                                              Stephen A. Doggett
                                              Attorney for Appellant
                                              201 South Eleventh
                                              Richmond, Texas 77469
                                              Telephone: (281) 342-3321
                                              Facsimile: (281) 341-8458
                                              TBA: 05945700
                                              Email: office@doggett-law.com


                         CERTIFICATE OF SERVICE

      I certify that a copy of this motion was served on John Harrity, counsel for
the State, by email on October 30, 2015.


                                              /s/ Stephen A. Doggett
                                              STEPHEN A. DOGGETT
  Velez v. State


Point of Error Ten
                                                                                                                22

against appellant.

        We similarlyconcludethatjudicial estoppelis not implicated here. The doctrine ofjudicial

estoppelprohibits a partywho hastakena position in anearlier proceeding fromsubsequently taking

a contrary position. See Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003). Having

concluded that no inconsistency existed between the State's theories at Moreno's and appellant's

trials, we find that neitherjustice norsound public policy require theapplication ofjudicial estoppel

here. We likewise find that appellant's right to be free of cruel and unusual punishment is not

implicated here. Pointof error twenty-seven is overruled.

                                  SUPPRESSION HEARING FINDINGS

        In point of error ten, appellant argues that the trial judge who entered the findings of fact and

conclusions of law relating to appellant's suppression hearing lacked the authority to issue those
findings because she was not the judge who presided over the suppression hearing. Appellantargues
that this violates statutory law, iscontrary to prior case law, and requires ade novo hearing toremedy

the error.4 The state responds that appellant waived this error because he did not present atimely
written motion to the trial court. This Court previously addressed this issue during the pendency of

this appeal.

        The original trial judge conducted ahearing on appellant's motion to suppress his statements
to police. During the suppression hearing, the trial judge stated on the record that, in making his
ruling, he would take into consideration the credibility ofthe testifying witnesses. The trial judge



         4 See Art. 38.22 §6; Garcia v. Stale, 15 S.W.3d 533, 536 (Tex. Crim. App. 2000) (rejecting findings and
conclusions made byatrial judge who did not preside over the hearing because the judge who presided over the
hearing was in abetter position to evaluate witnesses' credibility and demeanor, and itwas not appropriate for the
second judge to make findings of fact based solely onthe written transcript of the hearing).
                                                                                                    23

announced his ruling from the bench, denying appellant's motion to suppress. Defense counsel

orallymoved for the preparation of findings of fact andconclusions oflaw. The record reflects that

there was some confusion between the trial judge and defense counsel regarding whether an oral

motion was sufficient or a written motion was necessary. The record does not reflect that a written

motion was filed, and the trial judge did not enter written findings of fact and conclusions of law.

In his motion fornew trial,appellantcomplained that the trialjudge did not prepare the findings and

conclusions.


       After the appellate record was received by this Court, appellate counsel filed a motion

requesting thatthis Court abatethe appeal andinstructthe trial judge to enterwritten findings of fact

and conclusions of law concerning the voluntariness ofappellant's statements. This Court declined

toabate thecase, butordered thetrial court to prepare and file therequired findings andconclusions.

SeeTex. R. App. P. 34.5(c)(2); Velez v. State, No. AP-76,051 (Tex. Crim. App. Feb. 24,2010)(not

designated for publication). A supplemental record was not timely filed with this Court.

       ThisCourt subsequently received aletter from thetrial judge explaining that shewas notable

tocomply with our order because shewas not the judge who presided overthe suppression hearing.

She advised that shehad requested thepresidingjudge oftheFifth Administrative Region toappoint

the judge who had presided over the suppression hearing to prepare findings and conclusions.

Ultimately, the prior judge was not appointed, and on December 17, 2010, the new trial judge

prepared findings and conclusions based ontherecord and theprior judge's ruling that the statement

was voluntarily made, and the clerk forwarded asupplemental record to this Court. Once the trial

court had fulfilled itsdutyunder this Court's order and therecord had been received bythis Court,

the trial court lost its authority totake any further action in this case. See TEX. R. App. P. 25.2(g).
                                                                                                     24

       After the supplemental record was filed with this Court, appellant filed in the trial court an

"Objection to Findings of Fact and Conclusions of Law and Motion to Hold de novo Hearing

Pursuantto CCP 38.22." Pursuantto this motion, on January 19,2011, the trial court rescinded its

findings and conclusions and granted appellant a de novo suppression hearing. Two days later

appellant filed in this Court a motion to stay the briefing schedule until the trial court completed the

hearing and filed new findings and conclusions. However, because this Court had received the

record in the case, the trial court had lost the authorityto act on appellant's motion. Accordingly,

we denied appellant's motion and accepted the December 17lh findings and conclusions.

       We now have before us a complete record, the parties' briefs, and the additional public

information regarding the unavailability ofthe original trial judge. In his brief, appellant points out

that underour holding in Garcia v. State, 15 S.W.3d 533, 536 (Tex. Crim. App. 2000), it appears

that he is entitled to a de novo suppression hearing. In Garcia, however, we did not specifically

address the rare situation that presents itself here, wherein the prior judge cannot be appointed to

prepare findings of fact and conclusions of law because of unavailability orineligibility.

        Peculiarcircumstances surround this case. While the record does not include the reasonthe

presidingjudge ofthe Fifth Administrative Region did not appoint the priorjudge toprepare findings
and conclusions, we take note of the readily available public information indicating that the prior

judge is currently unavailable for appointment. In such a situation, where the prior judge is
unavailable orineligible for an appointment, we find it appropriate that there bean exception to the

rule laid out in Garcia. In the event that the judge who presided over a suppression hearing is

unavailable or ineligible to be appointed to prepare findings of fact and conclusions of law, the

current trial judge may prepare findings and conclusions based on the prior judge's ruling on the
                                                                                                                    25


record andthe transcript ofthe suppression hearing regarding whether a defendant's statementwas

voluntarily made.

        We recognize thatthe original trial judge, who is uniquely situated to observe the demeanor

of witnesses first-hand, is generally inthe best position to assess the credibility of witnesses.3 See

Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). In this rare circumstance, the trial

judge making the findings and conclusions did not observe the demeanor ofthe witnesses because

shedid not preside over the suppression hearing. However, sherefrained from makinganyexplicit

credibility determinations. Thus, wewillaccept thenewtrial judge's findings and conclusions, and

we will review the record to determine if they are supported by the evidence. Point of error ten is

overruled.


                                             USE OF RESTRAINTS

         In point oferror nineteen, appellant contends that the trial court violated his constitutional

rights by forcing him to appear at trial in visible shackles. In a pretrial motion, appellant sought to

preclude being shackled in public, and at the beginning of voir dire, defense counsel pointedout,

"Your Honor, my clienthas ankle bracelets on." Counsel asked the trial court, "Would the court

consider suspending that?" The trial court responded, "No sir."6

         The harm a defendant suffers when the jury sees him in handcuffs or shackles is that his

constitutional presumption of innocence is infringed. Long v. State, 823 S.W.2d 259, 282 (Tex.




         5 Wc note that the original trial judge made implicit credibility determinations bydenying appellant's
motion to suppress his statement.

        6 The state argues that this issue is not properly preserved because this exchange between defense counsel
and the trial court was not a proper objection. While this is not the form of a proper objection, this exchange did put
the trial court on notice that appellant opposed being placed in leg restraints in front of the jury.
