I am working on a response to a Motion for Rehearing in which the Appellant is claiming the appeals court erred by upholding the trial court's denial of Appellant's motion to suppress based on a fact that was in the record, but was not included in the trial court's written findings of fact.

[In its FFCL, the trial court found there was reasonable suspicion for the stop based on suspicious actvitity. The COA upheld the denial of the motion to suppress based not on reasonable suspicion, but rather on probable cause to stop the Appellant based on an on-view traffic offense, which the officer mentioned during his testiomony. (The trial court did not mention the offense in the FFCL.) The COA held the traffic violation would have been an objective basis for the stop, regardless of the officer's subjective belief and, thus, the stop was valid.]

Is there any case law I am missing that holds the appeals court is barred from looking to the record when there are explicit findings of fact? I know in Laney v. State, 117 S.W.3d 854, the CCA held that "a trial court's ruling admitting the evidence will be sustained if reasonably supported by the record and correct on any theory of law applicable to the case. . . even if the trial judge gives the wrong reason for the decision," but I just want to make sure I am not missing case law that states the appeals court cannot go outside the written findings of fact to examine the record.

That's an excellent question. The CCA has not really revisited what I think of as the Romero rule since they began requiring fof/col after Cullen. I think a court can sustain a ruling on a legal theory other than than that enunciated by the trial court in its fof/col. Thus, if the trial court finds X, and calls it reasonable suspicion, the COA could determine that X is probable cause, because that is a legal ruling. They might be able to go so far as to imply Y if it is in the record and not inconsistent with X. But they will have to defer to fact findings based on credibility and demeanor, so if the finding of X means that Y is not true, then certainly the COA's hands are tied.

Apparently the trial court did not determine whether the officer observed a traffic offense, but found some other possible criminal activity was observed. I think all that Cullen does is require the court to state the facts on which it is basing its ruling, so that the appellate court does not make a false assumption of fact in deciding the legal issue of application of the exclusionary rule. If the appellate court determines additional facts support the decision in the trial court, it seems to me it can find and observe those facts (as they are not contrary to any decision made by the trial court). But, perhaps the criminal rule is very much like Tex.R.Civ.P. 299 which deals with omitted findings in civil cases. I would look to some Rule 299 caselaw for an analogy.

Your case really highlights the need to make sure that a trial court's findings are detailed and thorough. The negative case you're looking for might be State v. Gerstenkorn, 239 S.W.3d 357, 358 n.1 (Tex.App. -- San Antonio 2007, no pet.) (because trial court made findings, alternative theory not addressed by findings -- that trial didn't believe officer -- would not be reviewed).

Ideally, the trial court should make a finding for every fact that it found to be true. After that, the trial court should make conclusions of law about what it thinks those facts mean.

I would argue that a non-finding is not the same as a negative finding.

A non-finding should be treated as though the trial court didn't make ANY explicit findings on that issue. And the normal “implied favorable findings doctrine” applies. See Com. v. Jones, 891 N.E.2d 718 at *2 (Mass. Ct. App. August 12, 2008) (Table) (upholding denial of suppression on theory not found by trial court); see also U.S. v. Bloomfield, 40 F.3d 910, 913-15 (8th Cir. 1994) (addressing conclusory findings). Some states would remand for findings on an alternative theory. Commonwealth. v. Alfonso A., 780 N.E.2d 1244 (Mass. 2003); State v. Nelson, 47 P.3d 521, 527 (Or. Ct. App. 2002).


Civil cases struggle with non-findings too:

Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 634 (Tex.App. -- Tyler 2004, no pet.) ("When the party who had the burden of proof on an issue in a bench trial complains about the absence of a finding of fact by the court, we treat the absence of the finding as a refusal by the trial court to find the fact from a preponderance of the evidence.") – this is a little different than your situation as the State isn’t complaining about the absence of a finding;

See Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 253 (Tex.App. -- Houston [14th Dist.] 1999, pet denied) ("[W]here the court specifically finds one or more elements of a ground of recovery or defense, this fact constitutes some evidence the court relied upon the ground or defense in reaching its decision. In such case, the omission of some of the elements of a ground of recovery or defense is deemed to be inadvertent.").

I would think that "right for any reason" would apply whether there are FOF or not. After all, it's supposed to be if the decision is correct, whether or not the judge articulated the right reason for it.

If the judge makes an explicit fact-finding of "X", then of course the appellate court can't conclude "not X", but I don't see any reason they can't independently conclude "Y".

I guess we all agree on that -- although the "right for any reason" doctrine seems most applicable for questions of law, not questions of fact.

The Appellee in Gerstenkorn made the argument that the suppression order should be affirmed on a factual theory not addressed in the FOF. He got shot down.

If defendant didn't like non-finding, he should have objected and urged the judge to make that specific negative or affirmative finding. Otherwise, it should revert to presumption that remaining unmentioned facts otherwise will be viewed in light most favorable to judge's ruling. Why should silence suddenly become a negative finding?

Thank you everyone for your thoughts!