James Calvin Massey v. the State of Texas

In the Court of Appeals

Second Appellate District of Texas at Fort Worth

No. 02-20-00140-CR No. 02-20-00149-CR JAMES CALVIN MASSEY, Appellant V. THE STATE OF TEXAS On Appeal from the 371st District Court Tarrant County, Texas Trial Court Nos. 1572638D, 1632168D ORDER

On October 4, 2021, we abated the appeal, remanded the case to the trial court, and directed the trial court to prepare and file findings of fact and conclusions of law.

On October 6, 2021, the trial court sent a letter to this court requesting clarification of the reason for the abatement and the matters upon which the findings and conclusions should be based.

The parties’ briefs on appeal pose a number of issues concerning suppression that would benefit from written findings of fact and conclusions of law. To wit, the State has argued for the first time on appeal that Appellant consented to the search of his person at first but revoked his consent shortly thereafter. “The validity of a consent to search is a question of fact to be determined from all the circumstances.” Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011). It is the trial court’s right, not this court’s right, to pass on questions of fact. The trial court should also have the opportunity to clarify its other findings and conclusions in the case with respect to whether the detention of Appellant was proper, whether the protective frisk of Appellant was proper, whether any taint from any prior illegality was attenuated, whether the contraband was found in plain sight, and any other suppression-related matters that the trial court may deem essential. 1 See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). The trial court’s assistance in this matter is appreciated.

This court’s October 4, 2021 order remains in effect as clarified. Dated October 7, 2021.

Per Curiam