           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                       NO. AP-76,936

                     TERENCE TRAMAINE ANDRUS, Appellant

                                              v.

                                 THE STATE OF TEXAS

             ON DIRECT APPEAL FROM CAUSE NO. 09-DCR-051034
                      IN THE 240 TH DISTRICT COURT
                          FORT BEND COUNTY

       Y EARY, J., filed a concurring statement in which H ERVEY and N EWELL, JJ.,
joined.

                             CONCURRING STATEMENT

       Today the Court in this capital murder appeal directs the trial court to prepare findings

of fact with respect to whether Appellant’s statement to the police “was voluntarily made.”

T EX. C ODE C RIM. P ROC. art. 38.22, § 6. The Court rightly regards such findings to be

mandatory, and Appellant does not have to object to their absence before we may order the

trial court to make them. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004). But

we also recently held in a unanimous opinion “that the requirement for 38.22 findings applies
                                                                                    Andrus — 2

whenever there is a challenge to a statement’s voluntariness.” Vasquez v. State, 411 S.W.3d

918, 920 (Tex. Crim. App. 2013) (emphasis added). Thus, while an appellant does not have

to object to the absence of Section 6 findings under Article 38.22 before this Court may order

the trial court to make them, id., unless “a question is raised” at the trial court level, there is

no issue of “voluntariness” in the case and therefore nothing for the trial court to make

findings about. Cf. Oursbourn v. State, 259 S.W.3d 159, 175 (Tex. Crim. App. 2008) (“The

language ‘where a question is raised’ contrasts with the language found in Article 38.22, §

7 and Article 38.23 which speaks of the evidence raising an issue. Because raising a

‘question’ is what triggers the trial court’s duty under Section 6 to conduct a hearing outside

the presence of the jury, the only reasonable reading of this language is that a ‘question is

raised’ when the trial judge is notified by a party or raises on his own an issue about the

voluntariness of the confession.”).

       In the instant case, although Appellant seems to have raised a pure voluntariness

challenge to the admissibility of his statement as one argument in one of his pre-trial motions

to suppress, he did not develop that particular challenge during the evidentiary hearing, and

he failed to obtain a ruling on that basis from the trial court. He essentially abandoned that

challenge. Consequently, I would not order the trial court in this case to enter findings of

fact with respect to that issue.

       But the Court has not limited the Article 38.22, Section 6 requirement to issues of pure

due process voluntariness. In recent years, the Court has also required Article 38.22, Section
                                                                                    Andrus — 3

6 findings when a “question is raised” with respect to police adherence to many of the

prophylactic rules that are designed to ensure that statements are voluntarily obtained (the

violation of which will trigger the exclusionary rule regardless of whether any resulting

statement is actually involuntary for due process purposes). For example, in Urias, in which

the defendant complained that his confession “was obtained in violation of his Fifth

Amendment right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966)[,]” we concluded that “[t]he proper procedure is that the trial judge

be directed to make the required written findings of fact and conclusions of law.” 155

S.W.3d at 142. And in Vasquez, a capital murder appeal, we remanded to the trial court to

enter findings of fact on the issues of whether the defendant had received his Miranda

warnings and, if he had, whether the police had utilized a two-step interrogation process to

vitiate their efficacy in violation of Missouri v. Seibert, 542 U.S. 600 (2004). 411 S.W.3d

at 920. Neither Urias nor Vasquez was required to establish that his confession was actually

involuntary for due process purposes in order to prevail on their respective claims; even

though a pure claim of involuntariness was not involved in either case, this Court

nevertheless invoked Article 38.22, Section 6, to require the trial court to supply findings of

fact where there were none in the record.1


       1

        See also, e.g., Green v. State, 934 S.W.2d 92, 96-101 (Tex. Crim. App. 1996) (having abated
the appeal and remanded the cause for findings of fact from the trial court “regarding appellant’s
confession[,]” in Green v. State, 906 S.W.2d 937 (Tex. Crim. App. 1995), the Court went on to
address those issues, including not only a pure voluntariness claim, but also, among other things, a
                                                                                     (continued...)
                                                                                      Andrus — 4

       Consistent with these cases, I agree with the Court’s decision today to require the trial

court to enter findings of fact under Rule 34.5(c)(2) of the Texas Rules of Appellate

Procedure.2 But I would limit the findings to the issues that were actually “raised” and

resolved in the trial court, namely, whether Appellant’s statement should have been

suppressed because 1) the interrogating officers did not honor his purported invocation of his

Fifth Amendment right to counsel and 2) the officers improperly continued to question him

after he had invoked his Fifth Amendment right to silence by terminating the interview.3




FILED:   February 25, 2015
DO NOT PUBLISH




       1
         (...continued)
claim that the confession should have been suppressed because of a violation of the appellant’s Fifth
Amendment right to counsel during custodial interrogation, as explicated in Edwards v. Arizona, 451
U.S. 477 (1981)); Wicker v. State, 740 S.W.2d 779, 782 (Tex. Crim. App. 1987) (abatement for
findings was appropriate in a case in which the appellant raised issues of both pure voluntariness and
the failure to give Miranda warnings).
       2

        The doctrine of stare decisis requires us, at the very least, to “keep in mind the strong
preference for adhering to past decisions[.]” Ex parte Lewis, 219 S.W.3d 335, 338 (Tex. Crim. App.
2007).
       3

        These are the only two issues that the parties argued to the trial court at the conclusion of
the evidentiary hearing and the only two issues upon which the trial court explicitly ruled. Appellant
did not object to the trial court’s failure to rule on any other issue he contended was raised by his
motions to suppress.
