Anderson v. Texas (Tex.App. - Austin Jan. 18, 2008)

Adam Anderson v. The State of Texas

M E M O R A N D U M O P I N I O N ON REMAND

Adam Anderson appeals his conviction for aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (West Supp. 2007). In his only point of error, he complains that the trial court failed to make the statutorily required findings of fact and conclusions of law regarding the voluntariness of his statement to the police. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West 2005). We overruled this point on original submission, noting that the evidence showed that appellant was not in custody when the statement was made and citing court of appeals authority holding that section 6 applies only to statements made during custodial interrogation. Anderson v. State, No. 03-06-00496-CR (Tex. App.--Austin July 13, 2007) (mem. op., not designated for publication). In so doing, we overlooked the court of criminal appeals's holding in State v. Terrazas (not cited by either party on original submission) that article 38.22, section 6 applies to all cases in which a question is raised as to the voluntariness of a statement by the accused, whether or not the statement was made while the accused was in custody. 4 S.W.3d 720, 727 (Tex. Crim. App. 1999). The court of criminal appeals granted appellant's petition for discretionary review, vacated our judgment, and remanded the case to us for further proceedings. Anderson v. State, No. PD-1213-07 (Tex. Crim. App. Nov. 7, 2007) (not designated for publication).

Appellant filed two motions challenging the admissibility of his statement to the police on the grounds that it was involuntary and taken in violation of article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22. The trial court did not rule on the motions until after this bench trial had begun. After hearing the testimony of the lead investigator to whom the statement was made, the court announced that "the court finds that Mr. Anderson was not in custody when he gave his statement and that the statement was given freely and voluntarily."

The State argues that the trial court's statement quoted above satisfies the requirements of article 38.22, section 6. See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003) (holding that trial court satisfies section 6 when it dictates its findings and conclusions to court reporter and they are made part of reporter's record). We disagree. The court merely stated its conclusion that the statement was voluntary. The court did not dictate into the record "the specific finding of facts upon which the conclusion was based." Tex. Code Crim. Proc. Ann. art. 38.22, § 6.

Alternatively, the State argues that the trial court's failure to comply with section 6 was harmless because appellant does not bring forward a point of error complaining of the admission of his statement. The State cites an unpublished opinion as authority for this argument. Bombasi v. State, No. 01-95-00726-CR, 1996 Tex. App. LEXIS 4302, at *7 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Whatever the merits of the holding in Bombasi, appellant does assert that his statement was involuntary, albeit not in a separate point of error. We also note that the statement at issue in Bombasi was never admitted in evidence before the jury. Id. at *8.
Appellant's point of error is sustained. The appeal is abated, and the trial court is instructed to prepare and file written findings of fact and conclusions of law regarding the voluntariness of appellant's statement to the police. See Green v. State, 906 S.W.2d 937, 940 (Tex. Crim. App. 1995). A supplemental record containing these findings and conclusions shall be tendered for filing no later than thirty days following the date of this opinion. Appellant will thereafter have thirty days to file a supplemental brief raising points of error challenging the trial court's findings and conclusions, and the State will have the same amount of time to file a responsive brief.
___________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Abated
Filed: January 18, 2008
Do Not Publish

ABATED: Opinion by Justice Waldrop (Before Justices Patterson, Pemberton and Waldrop)

Adam Anderson v. The State of Texas--Appeal from 390th District Court of Travis County

Shelby v. Texas (Tex.App.- Austin, Jan. 18, 2008)

Shelby F. Starnes v. The State of Texas

M E M O R A N D U M O P I N I O N


In January 2001, appellant Shelby F. Starnes was placed on deferred adjudication supervision for ten years after he pleaded guilty to the aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (West Supp. 2007). On July 27, 2007, a hearing was held on the State's motion to adjudicate, and appellant pleaded true to most of the allegations contained in the motion. The court adjudged him guilty and assessed punishment at thirty years' imprisonment.

Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant received a copy of counsel's brief and was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.

We have reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Counsel's motion to withdraw is granted.

The judgment of conviction is affirmed.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 18, 2008
Do Not Publish

AFFIRMED: Opinion by Justice Pemberton (Before Justices Patterson, Puryear and Pemberton)

Shelby F. Starnes v. The State of Texas--Appeal from 264th District Court of Bell County

DWI Plea bargain precludes appeal

Tracy Eugene Rickerson v. The State of Texas--Appeal from 277th District Court of Williamson County

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 07-478-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Tracy Eugene Rickerson seeks to appeal a judgment of conviction for driving while intoxicated. The trial court has certified that: (1) this is a plea bargain case and Rickerson has no right of appeal, and (2) Rickerson waived his right of appeal. The appeal is dismissed. See Tex. R. App. P. 25.2(a)(2), (d).
___________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed for Want of Jurisdiction
Filed: January 18, 2008
Do Not Publish

DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)

Tracy Eugene Rickerson v. The State of Texas--Appeal from 277th District Court of Williamson County

Retrial after hung-jury mistrial not barred by double jeopardy, Justice Diane Henson writes

Ex parte Edwin Baezotero--Appeal from 403rd District Court of Travis County

M E M O R A N D U M O P I N I O N BY JUSTICE DIANE HENSON

[REMOVED]

Blogmaster's note: At the polite request of the Defendant received Mar. 9, 2008 [as opposed to the threats and accusations that have been made in some comments posted earlier] I have decided to remove the text of the opinion by Justice Henson, pending further consideration of the issue.

For those not familiar with appellate practice and appeals court's conventions and rules, "Do not publish" means do not publish in the South Western Reporter, ( ___ S.W.3d ___) - an evergrowing collection of appellate opinions that are cited as precedent in legal briefs and opinions. These published cases guide consideration and decision of future cases involving similar issues, but "unpublished" cases may now be cited as well, although they do not carry the same weight. Not published or "unpublished" does not not have the literal meaning in this context, as almost all appellate opinions - designated for publication or otherwise - (including this one - as of today) are available on the courts' web sites and through WestLaw and other publishers. Those who have a need to read the opinion I have removed from this blog can access it by alternative channels.

AFFIRMED: Opinion by Justice Henson (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00241-CR
Ex parte Edwin Baezotero--Appeal from 403rd District Court of Travis County