Cullen, 04-04-583-CR (05/18/05) represents perhaps the extreme example of allowing a trial court to unjustifiably dismantle the intent of art. 44.01(a)(5). While I could not determine the meaning of "bupkus" (used by the commentator in his assessment of the trial court's decision in our weekly case digest), I certainly agree with the comments about Judge Garrahan-Moulder's decision and think the prosecution was dead right in arguing "that in the absence of findings and conclusions, the trial court's ruling is insulated from meaningful review, thereby undermining the legislative grant of the State's right to appeal an adverse ruling on a suppression motion." I also think the court is wrong in holding it has no authority to mandate findings or that there is no precedent for such action. Cf.Knapp, 488 N.E.2d at 143; Gaston, 512 So.2d at 801; Covington, 385 A.2d at 168 n. 6; Osborn, 547 N.W.2d at 145; Sampson, 854 S.W.2d at 664. The police officers involved (and the prosecutor and the public) deserve to know if the judge thinks they are lying- and if not- the appellate court should be forced to decide the case on the facts and not assumptions.

Those findings, if mandated, can also work to the disadvantage of a prosecutor. We do win most motions to suppress. Would we win as many with findings?

John Bradley
District Attorney
Williamson County, Texas

Are you saying that if the court were required to enter findings when contemplating ruling that relevant evidence is admissible it might choose to rule the other way? Findings of fact would be mandated only to protect the State's right of appeal and any findings not supported by the record could be challenged. If the judge wants to find contrary to credible testimony, so be it, at least everyone is clear about what is occurring. I just do not see the problem and there is a bigger problem when cases like Cullen cannot be prosecuted merely because some judge misapprehends the applicable law.

For a definition of bupkus (sp) or, more correctly, bupkiss, check out this link.

John Bradley
District Attorney
Williamson County, Texas

Hope this does not post twice. I was kicked off after I tried to post the first time.

See Oages, 11-04-00183-CR, 5/12/05. The same issue was raised. Appellee's attorney raised Guo and Ross and has now filed a motion for rehearing on this issue because the court failed to address it.

I argued implied findings because the argument at the suppression hearing was based on the constitutional grounds and the trial court's order appeared to imply that was the reason for the granting of the motion. But is was not entirely clear that was the reason.

Oages gives a little leeway if the record clearly supports the reason was not credibility, but very slim.

What if this was a murder case - and the trial court made no inferences of why the motion to suppress was granted. In absence of findings, Ross and Guo clearly support that the COA must defer to the trial court and find that the trial court simply disbelieved the officer. Shouldn't the trial court be held accountable for its rulings. If there was a legal argument, but it is not clear from the record that is why the trial court suppressed, the granting of the motion to suppress will be upheld. The trial court seems to have an out whenever they want to suppress evidence for whatever reason by just failing to make findings. The COA must defer to the trial court's ruling and assume that the officer was not credible.

I am not sure that holding the trial court to support its rulings by a factual and legal conclusion should hurt the prosecution that often.

I do agree that the court's ruling in Guo and Ross, and now in Cullen, that the State's ability to appeal under 44.01(a)(5). Trial court's failure to make findings will almost always pour us out on appeal, so how do we appeal?

We have prevailed on quite a number of appeals from MTS without any FOF. Of course, it is easier with FOF stating that credibility is not an issue, and we seek them if we can and expect them to be useful. More often than not, we do not hold hope for favorable FOF, though, so we pursue an appeal without them. We have to have very strong facts and a clearly erronous ruling. Maybe we are fortunate with our COA (5th) and we try to be selective with our appeals (better than 70% chance of prevailing), so we let some closer cases fizzle out, but the absence of FOF is definitely not fatal to pursuing a State's appeal. It just takes some careful crafting of the issues and probably a fair dose of luck. Our county courts certainly provide us with ample opportunity to reverse their rulings.

I don't see how FOF makes our job more difficult on appeal. Unless, of course, if trial courts are going to start finding the officers not credible in their FOF. I guess my theory is let the trial court get take the heat if they are ruling because the officer was not credible, they should say so. If their ruling was erroneous on how they applied the law won't it still be erroneous if they make FOF?

A trial court wanting to "bullet-proof" its rulings will enter FOF based upon credibility, so it pays to know your courts. If you want to appeal and recognize your trial court as one that will try to shield its rulings from reversal, you should probably pass up seeking FOF (the court might prepare its own anyway). On the other hand, if you realize your court simply wants the law resolved and credibility is not an issue, go get them. Indeed, why not prepare proposed FOF? But, bottom line, as a party that enjoys only a very limited right to appeal, we should be careful before we urge FOF as a condition precedent to appealing.

Did ask for FOF in Oages, and gave proposed FOF, because I thought court's ruling was on the constitutional issue. However, the court refused to file FOF and failed to explain on the record the rationale behind the granting of the motion. One wonders why a court would refuse to file FOF other than in attempt to protect its ruling no matter what the actual principles behind the ruling.

I suppose we have all had situations where trial courts hide behind a cloak of mystery. Recently, we have taken an intermediate approach and sometimes sought rehearings before appealing. The thought is that even if the court won't change its mind, maybe it will flesh out its rationale while discussing the matter. But we have had a couple of courts come around.