                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                             ORDER

Appellate case name:      The State of Texas v. Juan Negrete

Appellate case number:    01-19-00357-CR

Trial court case number: 1524468

Trial court:              263rd District Court of Harris County

        Appellant, the State of Texas, appeals from the trial court’s order granting the motion to
suppress the oral statements that appellee, Juan Negrete, made to law enforcement. Appellant
has filed a motion to abate to allow the trial court to “supplement the record with a [videotaped]
recording [containing appellee’s oral statements] which was functionally admitted and
considered by the [trial] court” at the hearing on appellee’s motion to suppress and to allow the
trial court to “enter findings of fact and conclusions of law” related to its order granting
appellee’s motion to suppress.
       Videotaped Recording
         On May 21, 2019, the court reporter filed with this Court the reporter’s record from the
hearing on appellee’s motion to suppress. Appellant asserts in its motion to abate that the oral
statements made by appellee to law enforcement “is on a video,” the trial court “viewed th[e]
video” during the hearing on appellee’s motion to suppress, the trial court “mentioned time
stamps on the video” “on the record” during the hearing, and “[t]his [was] the only evidence that
the trial court considered in making [its] ruling.” Although appellant states that “no one offered
the video[taped recording]” containing appellee’s oral statements, “[s]ometimes the parties may
treat an exhibit, document, or other material as if those items had been admitted into evidence,
even though they were never formally offered or admitted in the trial court.” See Amador v.
State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). And “Texas courts have held that
documents or items [are] in some way made part of the trial record wh[en] [they] are treated by
the [trial] court and parties as if formally introduced into evidence.” Id. at 673–74; see also
Cornish v. State, 848 S.W.2d 144, 145 (Tex. Crim. App. 1993). Here, during the hearing on
appellee’s motion to suppress, the videotaped recording of appellee’s oral statements was
repeatedly cited by the trial court during the hearing and referenced by the trial court when it
ruled that it would “suppress appellee’s statement[s].” Thus, the videotaped recording should be
made part of the appellate record. See Amador, 221 S.W.3d at 673–74; Cornish, 848 S.W.2d at
145; State v. Brown, 929 S.W.2d 588, 591 (Tex. App.—Corpus Christi–Edinburg 1996, pet.
ref’d).
        Accordingly, the District Clerk of Harris County or the court reporter, if the videotaped
recording is in his or her possession, is directed to deliver the original videotaped recording to
the Clerk of this Court. See TEX. R. APP. P. 34.6(d), 34.6(g)(2). The Clerk of this Court is
directed to cooperate with the district clerk and/or court reporter to provide for the safekeeping,
transportation, and return of the exhibit.
        To the extent that appellant, in its motion, requests abatement and remand to the trial
court to allow it to “supplement the record with a [videotaped] recording [containing the oral
statements],” appellant’s request is DENIED. See TEX. R. APP. P. 34.6(d) (appellate court may
direct court reporter to file supplemental reporter’s record); 34.6(e) (appellate court may remand
case to trial court when dispute arises as to inaccuracies in reporter’s record); Amador, 221
S.W.3d at 676–77 (“If the record . . . does not fully reflect the evidence considered by the
factfinder, then the trial judge, the court of appeals, or any of the parties may direct the court
reporter to supplement the appellate record with the missing items. If the parties have a dispute
over what items are missing from the appellate record, or they dispute the accuracy or
completeness of those items, [then] the trial court will resolve that dispute.” (internal citations
omitted)); see, e.g., Shilling v. State, No. 07-17-00105-CR, 2017 WL 3882729, at *1–2 (Tex.
App.—Amarillo Aug. 30, 2017, order).
         The videotaped recording shall be filed in this Court within 14 days of the date of this
order.
         Findings of Fact and Conclusions of Law
        The reporter’s record reflects that at the conclusion of the hearing on appellee’s motion to
suppress, the trial court stated: “I’m going to suppress the statement. And there are couple
reasons on the record why, but I expect [appellee’s] counsel to turn in very detailed, well-written
[f]indings of [f]act and [c]onclusions of [l]aw . . . . And I invite [appellant] to submit [p]roposed
[f]indings of [f]act and [c]onclusions of [l]aw.” The clerk’s record contains proposed “Findings
of Fact and Conclusions of Law” filed by appellee. However, they are unsigned, and there is no
indication in the record that the trial court adopted these findings of fact and conclusions of law.
The record also does not indicate, and appellant does not argue in its motion, that it filed
proposed findings of fact and conclusions of law or that it filed a “Notice of Past Due Findings of
Fact and Conclusions of Law.”
        Here, the trial court granted appellee’s motion to suppress the oral statements that he
made to law enforcement.1 In such circumstances, the Texas Court of Criminal Appeals has
stated that:
         [U]pon 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.


1
         Cf. TEX. CODE CRIM. PROC. art. 38.22, § 6.
State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (emphasis added) (relying on
Texas Rule of Civil Procedure 297 “to provide guidance to the trial courts about the time to file
requested findings of fact and conclusion of law”); State v. Villarreal, 476 S.W.3d 45, 48–49
(Tex. App.—Corpus Christi–Edinburg 2014), aff’d, 475 S.W.3d 784 (Tex. Crim. App. 2014)
(noting trial court, after granting defendant’s motion to suppress, entered findings of fact and
conclusions of law upon State’s timely request). However, appellate review of the trial court’s
ruling granting the motion to suppress is not contingent upon the trial court entering findings of
fact and conclusions of law. See Cullen, 195 S.W.3d at 699 (not indicating that such findings
and conclusions are mandatory). Notably, the losing party, i.e., appellant in this case, must
request the findings of fact and conclusions of law and, if applicable, file a “past due” notice.
See Sonnier v. Sonnier, 331 S.W.3d 211, 214 (Tex. App.—Beaumont 2011, no pet.) (failure to
file “past due” notice waives party’s right to complain about the trial court’s failure to file
findings of fact and conclusions of law) (citing Burns v. Burns, 116 S.W.3d 916, 921–22 (Tex.
App.—Dallas 2003, no pet.); see also TEX. R. CIV. P. 297 (relied on by Court of Criminal
Appeals in Cullen). As noted above, the record in this case does not indicate that appellant did
so.
        Accordingly, to the extent that appellant, in its motion, requests abatement and remand to
the trial court to allow it to “enter findings of fact and conclusions of law” related to its order
granting appellee’s motion to suppress, appellant’s request is DENIED.
       Appellant’s brief remains due on October 11, 2019.

       It is so ORDERED.


Judge’s signature: ________/s/ Julie Countiss___________________________
                     Acting individually       Acting for the Court


Date: _October 8, 2019_____________________
