State appealed a grant of MTS. At issue during the entire MTS hearing was whether Art 1 Sect 9 of TX Constitution provides greater protection in a search incident to arrest. All prevailing case law still uses Belton v. NY which is what the State argued. Trial court refused to file findings. State requested findings and filed with clerk; however, defense counsel did not file their requested findings with clerk. In those findings defense counsel states traffic stop was legal and arrest was pursuant to outstanding warrant. In appellee's brief he now alleges the trial court could have found the traffic stop illegal or the warrant not valid since we did not enter warrant. Is there a mechanism in which the State could require his findings to be part of the record? I will argue this case Wednesday and just wanted to know if there is anyway I can make his findings part of the record.

I was under the impression that the trial court must make findings if requested by a party. If those findings are made, they essentially become the factual basis for the appellate court's decision, unless they are not supported by the record. I cannot remember at the moment, however, what one does when a judge will not make findings of fact.

It seems to me that, if the proposed findings were filed with the clerk, they are part of the clerk's record, assuming they were included in the copy sent to the court of appeals. If the defendant proposed them, perhaps you could argue that they are admissions or concessions and estop him from arguing anything to the contrary.

If the proposed findings were not included in the record, perhaps you should file a motion to supplement. I think that the Rules of Appellate Procedure require the appellate court to allow supplementation if there is anything that might possibly affect the decision.

I think the law Jim is speaking about is civil law, rather than criminal law. To my knowledge, a court in a criminal case is only required to make findings in certain specific instances, e.g. art. 38.22, art 11.071. If the defense findings were not filed with the clerk, you're on pretty thin ice to try and get them before the coa. You could file them with the district clerk and then supplement the appellate record, but it will appear that you are attempting to manipulate the record. I did that once with a document both sides talked about on the record but did not file. COA did not like it.

Your argument would have to be that if proposed findings were filed with the Clerk, that such constitute a pleading (which would then prevent the Appellee from taking a contrary position on appeal). But, since the proposed findings were never even filed (much less adopted by the trial judge), I do not believe they are any part of the appellate record. Meaning that you will still have to overcome any implied findings the appellate may derive from the evidence. E.g., Nash, 55 S.W.3d 110; Boone, 45 S.W.3d 743; Hunter, 102 S.W.3d at 312. Generally the rule that the appellate court will sustain the decision below on any theory applicable to the facts benefits us, but the Guo situation is a definite exception. Good luck!