Ross says: "If a non-prevailing party wishes to avoid the effects of [bad] appellate presumptions, then it should attempt to get the rationale for the trial court's ruling on the record through either a verbal explanation at the hearing or express findings of fact and conclusions of law." 32 S.W.3d at 858. Of course, we have no provisions in the Code of Criminal Procedure similar to Tex.R.Civ.P. 296-99 and as far as I know this was not an issue addressed by the common law. See art. 1.27, C.C.P. So just what is the procedure envisioned in this statement by the CCA? Are there any time deadlines? Any way to force a trial judge to further explain his ruling? Can the appellate court help out? cf. Sampson, 854 S.W.2d at 664. Is there any need for the legislature to act to remedy any ambiguity? How are you generally dealing with this problem?
[This message was edited by Martin Peterson on 12-14-01 at .]
We have had success in persuading the trial courts to make written findings of fact. Many of our judges have stated that they want appellate resolution of an issue, and we simply tell them that findings increase the likelihood of review of the merits of the issue. We try to keep the findings fairly simple, and we draft them in such a way as to prevent "affirmance on other grounds." Still, even given that practice, we only take up a handful of cases each year.
We try to get findings made at the same time the judge issues a written order on the motion to suppress. I think a judge could probably make findings up until the court of appeals obtains jurisdiction. See Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995). I don't know of any way to force a judge to make findings--even article 38.22, Sec. 6 only applies if the judge does not suppress a confession. I'm not sure we've ever had a judge refuse to make findings when we asked.
[This message was edited by John Rolater on 12-17-01 at .]
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Requesting findings of fact and conclusions of law is a dangerous double edge sword. Most of the time, it is the defendant who appeals the denial of a motion to suppress. In the absence of such findings and conclusions, the trial court's ruling can be upheld on any theory supported by the record. But if there are specific findings and conclusions, then the State may lose, even though there may be a theory that would support the trial court's ruling.
We have not ever filed an appeal of a trial court's ruling in a felony case. If the case is that close, we try to resolve the case without a ruling. I realize that is not always possible in larger jurisdictions, but it does make me reluctant to suggest that you always want to get findings and conclusions. I would not like to see a court or legislative rule that requires it in every case.
John Bradley First Assistant DA Williamson County, Texas
I completely agree that trial prosecutors should not ask for findings and conclusions on every motion to suppress. The only time we ask for them is if the motion is granted and we're trying to appeal. We answered about 1000 defense appeals last year, but probably only took up 3 State's appeals. The most I can remember in a year is 6. (We have had a number of mandamus actions lately that don't count in these totals). I think it is best to say that we exercise 'cautious restraint' with the State's right to appeal.
Congratulations to the new Williamson County District Attorney!
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
The reason for my inquiry was as follows: Officer conducts Terry pat-down and discovers 4 oz. of marihuana in pants pocket. Court rules insufficient basis to believe "suspect" armed or dangerous. I file request for findings of fact (after court signs motion to suppress). Defense attorney's response is: "I find no rule of procedure which requires any such findings in a criminal case. Ross makes it clear that , where no findigs of fact are made, appellate review of the evidence is made in the light most favorable to the trial court's ruling, and 'almost total deference' is given that ruling. Unless the Court wants to give some appellate court an excuse for nit-picking your decision, there is no reason to make or file the requested findings." To date, judge has made no findings. The evidence was conflicting on what the parties said or did immediately prior to the pat-down. I believe, however, that the judge credited the testimony of the officer, just didn't find his explanation sufficient for the search as a matter of law, which, if true, has the potential to endanger officers in our district. Any ideas on how to answer the defense attorney's assertions? The record is due in Waco on January 7, so my time is running short. The clerk has agreed not to send it until then.
"Judge, I've brought defense attorney X here with me today so we could talk a little bit about the marijuana you suppressed in the Y case. You remember, that is the case where _____________. Your ruling appeared to be that, as a matter of law, the officer did not have reasonable suspicion such that he could conduct a pat down. If that is your ruling, the State would like to appeal it because this is a felony case that we feel we would win at trial and because it is important to us to establish good guidelines for our officers to use when determining whether they can conduct a pat down. As defense counsel has previously told you, we cannot obtain review of the merits of your ruling unless you make findings of fact for the appellate court. This is not about nit-picking your honor's ruling, but about what constitutes reasonable suspicion. I have drafted proposed findings that state that you believe the officer's testimony but that the testimony is insufficient to provide reasonable suspicion for a pat down. On the other hand, if you did not believe our officer, then we can just drop the matter . . ."
I'm a law-book pushing computer jockey--they don't let me talk to trial judges very much--but this is what I would try. You know your judge best. The hardest part is figuring out whether you really should appeal. That is not the sort of thing to discuss on the forum.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Sorry. If it happens again, try to draw out your judge's reasoning on the record during your MTS hearing. I once successfully used the judge's comments as the equivalent of FOF.
The other thing to remember is that the Ross rule helps us on appeal about a thousand times more than it helps the defense. I'm sure many appellate courts have seen pro-State suppression rulings they just hated but could not touch under the applicable standards.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
I agree completely. If you can't get your judge to state on the record that he believed the officer but found insufficient evidence to support a reasonable search, then gracefully accept the ruling and move on. The State will rue the day it forces trial judges to make specific findings of fact regarding search and seizure rulings.
A lot of this has to do with developing a relationship of trust between lawyers and judges. Our office works very hard to avoid putting our judges in the position of having to grant a motion to suppress. By heavily screening such issues before they are litigated, our offices can avoid many of these disputes by resolving the issue with a plea agreement (that waives the search and seizure question) or dismissing the case.
Of course, there are those very serious cases that just require us to litigate close questions. And we should do so with great vigor. But I still don't think the benefits of a law requiring findings of fact is better than the current system, in which the State often is the beneficiary of no findings and a deferential appellate court.
John Bradley District Attorney Williamson County, Texas
I completely agree with Justice Nuchia's comments in Guo (12-27-01). This case demonstrates how bad the "assumptions in favor of the judgment" rule can be- since if one believed the officers, there was little doubt the search there was valid. Maybe the CCA will adopt a new approach, in line with Nuchia's or Womack's positions. I would like to suggest the court also scrap the requirement that the state offer all legal reasons in support of admissibility (other than lack of standing) in the trial court. The current rule treats the interlocutory order as though it were a ruling on a motion for summary judgment. Tex.R.Civ.P. 166a requires the party defending one of those to bring forward all defensive issues, but also requires a very specific motion.
Most motions to suppress I see have little to say about exactly why the evidence was wrongfully obtained and you don't really know where the defendant is headed until the hearing. The appellate courts should recognize that the trial court still has authority to reverse its ruling and therefore apply any legal theory applicable to the evidence to assure that a correct ruling is entered. So what if the Defendant gets surprised by a new legal theory (of admissibility) on appeal. Doesn't he still get a second chance to respond and succeed (by objecting when the evidence is actually offered at trial)? The courts have erred in importing all the rules developed in appeals from orders denying motions to suppress into State's appeals under 44.01(a)(5).
In Cullen, No. 984-05 (06/28/06) the CCA has now mandated that the trial court cause the appellate record to reflect the findings of facts (who was deemed credible) supporting the suppression ruling. I believe this is a good thing despite the bad side effects spoken of above. I applaud Bexar County for pressing this issue.
Whether a trial court has to make findings of fact or has discretion to do so is always a two-edged sword for those considering an appeal. At least mandatory FOF, on request, should keep the review process more honest. We live with non-discretionary FOF already for confessions and writs and the result hasn't been apocalyptic. Almost certainly some judges will seek to bullet-proof themselves by assessing credibility, but those judges are the same ones already employing procedures to shield their rulings. Bottom line, the appellate courts should be in a stronger position to properly evaluate rulings. And, just because there are FOF doesn't mean arguments can't be made about what they mean. Anyway, don't we get the best of both worlds due to the requirement a party must request the findings. We will seek them only when we think they will help us and the other side will remember to request them infrequently.
[This message was edited by John Stride on 06-28-06 at .]
I have a case, Oages, at the CCA almost exactly like Cullen. I expected its ruling to be a companion case to Cullen. I do not see the harm either way in forcing the trial judges to make FoF, CoL. If the MTS should have been granted, shouldn't the trial judge be reversed? Further, what about the cases that say if the evidence supports any theory of law even if the trial judge denies on an incorrect reason the ruling will be upheld. I think the State must present the reasons to the trial cour, but isn't that what we should do anyway?
Posts: 419 | Location: Abilene, TX USA | Registered: December 16, 2002
I have a similar case on appeal to the court of appeals. Does anyone have a MOTION TO ABATE that I could look at. Based on this decision I would like to ask my court of appeals to abate my state's appeal and remand the case back for the trial court to enter findings of fact. (I filed a written request for findings and the trial court didn't file any. Thanks
