Abatement Order filed January 16, 2020.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-19-00154-CR

                      THE STATE OF TEXAS, Appellant

                                         V.
                     JOHN WESLEY BALDWIN, Appellee

                    On Appeal from the 208th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1527611

                             ABATEMENT ORDER

      This case comes to us after conflicting rulings from two different trial
judges.

      The first judge, the Honorable Denise Collins, presided over an evidentiary
hearing on a motion to suppress. At that hearing, the defense sought to suppress the
statements of appellee John Baldwin, as well as certain cellphone evidence that had
been obtained pursuant to a search warrant. The defense argued, among other
points, that all of this evidence should be suppressed because it was the fruit of an
unlawful traffic stop. The defense further argued that, even if the traffic stop had
been lawful, the cellphone evidence should be suppressed because the affidavit in
support of the search warrant was legally insufficient to establish probable cause.

      After considering the evidence and arguments of counsel, Judge Collins
orally found that the traffic stop was lawful but that the affidavit was insufficient.
Judge Collins accordingly granted the motion to suppress in part, but she did not
reduce her ruling to writing. Without a written order, the State was precluded from
filing an interlocutory appeal. See State v. Sanavongxay, 407 S.W.3d 252, 258–59
(Tex. Crim. App. 2012).

      While the case remained pending, Judge Collins was succeeded by the
Honorable Greg Glass, who issued a written order on the motion to suppress. In
that written order, Judge Glass granted the motion in full, rather than in part as
Judge Collins had previously ruled. Judge Glass did not enter any findings of fact
and conclusions of law along with his written order. And though his written order
contains recitals indicating that he considered the evidence and arguments of
counsel, our record does not reflect that Judge Glass ever presided over a hearing.

      The State filed an interlocutory appeal of Judge Glass’s written order, and
now raises two issues in its appellate brief. First, the State argues that Judge Glass
should not have suppressed the cellphone evidence because, when viewed in the
light most favorable to the magistrate’s decision, the affidavit actually supports a
determination of probable cause. Second, the State argues that Judge Glass should
not have suppressed Baldwin’s statements because Judge Collins had previously
found that the traffic stop was lawful, and that finding was supported by evidence
adduced at the hearing.

      We cannot address the sufficiency of the affidavit without first addressing
the lawfulness of the traffic stop, because if the traffic stop were unlawful, then all
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of the evidence would need to be suppressed as fruit of the poisonous tree—unless
an exception applied, which the State has not suggested. See Utah v. Strieff, 136 S.
Ct. 2056, 2061 (2016) (recognizing three exceptions to the exclusionary rule).

      Judge Glass did not make any express findings as to the lawfulness of the
traffic stop, but if we were to presume that he made all implied findings in support
of his ruling, as our standard of review requires, then we would have to conclude
that he implicitly found that the traffic stop was unlawful, as that was the only
ground offered for suppressing Baldwin’s statements. See Johnson v. State, 414
S.W.3d 184, 192 (Tex. Crim. App. 2013) (“In reviewing a trial court’s ruling on a
motion to suppress, appellate courts must view the evidence in the light most
favorable to the trial court’s ruling. When the trial court does not make explicit
findings of fact, the appellate court infers the necessary factual findings that
support the trial court’s ruling if the record evidence (viewed in the light most
favorable to the ruling) supports these implied fact findings.”).

      The implied finding from Judge Glass conflicts with the express finding
from Judge Collins, but Judge Glass was not necessarily bound by his predecessor.
A pretrial ruling on a motion to suppress is an interlocutory ruling that “a trial
court may revisit at its discretion at any time during the course of a trial.” See
Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012). And under Article
28.01 of the Code of Criminal Procedure, Judge Glass could have revisited the
motion to suppress and determined that the traffic stop was unlawful, based solely
on the motion itself. See Tex. Code Crim. Proc. art. 28.01, § 1(6) (providing that
“the court may determine the merits of said motion on the motions themselves, or
upon opposing affidavits, or upon oral testimony, subject to the discretion of the
court”); Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002) (“Appellant’s
motion to suppress asserted that the traffic stop and search were done without a

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warrant. By providing for a determination of the merits of such a motion on the
motion itself, Art. 28.01, § 1(6), established the motion to suppress as the basis for
an allegation of a Fourth Amendment violation.”).

      But at the very least, Judge Glass would have needed to conduct a hearing
under Article 28.01, even if no evidence was taken. See Tex. Code Crim. Proc. art.
28.01, § 1(6) (providing that the trial court may determine the merits of a motion
using the motion itself “when a hearing on the motion to suppress is granted”).
And a record of the hearing should have been prepared. See Tex. Code Crim. Proc.
art. 28.01, § 2 (“The record made at such pre-trial hearing, the rulings of the court
and the exceptions and objections thereto shall become a part of the trial record of
the case upon its merits.”). We do not have a record of a hearing. Moreover, the
State has represented on appeal that no hearing occurred, and the defense has not
challenged that representation.

      In certain situations, a successor judge may adopt the findings of a
predecessor judge without having to conduct a de novo hearing, provided that the
predecessor judge presided over a procedurally and substantively adequate hearing.
See, e.g., Bass v. State, 626 S.W.2d 769, 774–75 (Tex. Crim. App. 1982)
(addressing voluntariness issues under Article 38.22). But we are not aware of any
authority that would permit a successor judge to reject the findings of a
predecessor judge without having conducted any hearing at all.

      Given the conflicting rulings and the absence of a hearing transcript from
Judge Glass, the State has suggested that an abatement may be required, and we
agree. Under our rules, we must abate an appeal “if (1) the trial court’s erroneous
action or failure or refusal to act prevents the proper presentation of a case to the
court of appeals; and (2) the trial court can correct its action or failure to act.” See
Tex. R. App. P. 44.4.

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      The erroneous action here is that Judge Glass issued a ruling on the motion
to suppress that departed from the ruling of his predecessor, and he did so without
any sort of hearing. That conflict is preventing the proper presentation of the
appeal because we cannot determine whether Judge Glass believed that the traffic
stop was unlawful (which is the implication of his ruling), or whether he intended
to adopt his predecessor’s finding that the traffic stop was lawful but he
inadvertently granted more relief instead (which might explain why he did not
conduct a hearing in the first place). If the former is true, Judge Glass could
express that intent at a recorded hearing and cure any error under Article 28.01.
And if the latter is true, Judge Glass could remedy the conflict by issuing a
corrected order. See Henery v. State, 364 S.W.3d 915, 919 (Tex. Crim. App. 2012)
(ordering the abatement of an appeal and holding that the trial judge could correct
an order if the judge determined that the order was the result of clerical error).

      We therefore remand this case for a hearing where Judge Glass can clarify
the scope of his ruling. In his discretion, Judge Glass may choose to revisit the
motion to suppress de novo by ordering the live presentation of witnesses. See Tex.
R. App. P. 43.6 (“The court of appeals may make any other appropriate order that
the law and the nature of the case require.”). A record of the hearing shall be
included in a supplemental reporter’s record and any rulings or related documents
shall be included in a supplemental clerk’s record, and both supplemental records
shall be filed with the Clerk of our court on or before February 18, 2020.

      Without expressing any opinion on the merits of this interlocutory appeal,
we abate the appeal, treat it as a closed case, and remove it from this court’s active
docket. The appeal will be reinstated on this court’s active docket when the
supplemental records are filed or as this court may otherwise order.



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                                  PER CURIAM


Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.




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