Urias, Tomas

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0335-03 TOMAS URIAS, Appellant v. THE STATE OF TEXAS DISSENT TO DENIAL OF STATE'S MOTION FOR REHEARING FROM COURT'S OPINION REMANDING CASE TO THE EIGHTH COURT OF APPEALS ECTOR COUNTY Keller, PJ., filed a dissenting opinion. DISSENTING OPINION When this case was submitted to us on petition for discretionary review, the Court had three options: affirm the decision of the court of appeals, reverse the decision of the court of appeals while affirming the trial court's judgment, or dismiss the State's petition as improvidently granted. Instead, the Court chose a fourth option: reversing and remanding to the court of appeals to reconsider the voluntariness question after ensuring that the trial court has made findings of fact. (1) The problem with this fourth option is that no one has ever requested findings of fact. Neither party asked for findings at trial. Neither party complained to the Court of appeals about the absence of findings. The Court of appeals reviewed the voluntariness issue without findings. (2) And no one has complained about the absence of findings in a petition for discretionary review. Relying upon State v. Terrazas (3) and Marin v. State, (4) the State contends in its motion for rehearing that remand is inappropriate when neither party has complained about the absence of findings. The Court's opinion on original submission cites for support the earlier decisions of Wicker v. State (5) and McKittrick v. State. (6) I see several problems that warrant a rehearing. First, whether the statutory requirement that findings be made constitutes "forfeitable" error is an important issue that should be considered - if a remand for findings is contemplated - after notice to the parties and full briefing. It is true that Wicker and prior cases have indicated that a party can raise the trial court's failure to issue findings for the first time on appeal on the ground that Article 38.22, §6 "is mandatory in its language" and requires the trial court to file findings concerning the voluntariness of a confession "whether or not the defendant objects to the absence of such omitted filing." (7) But later cases have cast doubt on whether that continues to be the law. Relying upon Marin, this Court specifically stated in Terrazas that "the 'right' to findings and conclusions is a statutory 'right' which is forfeited by a party's failure to insist upon its implementation." (8) That statement was admittedly dicta, (9) but Marin was "a watershed decision in the law of error preservation" and has required us to reconsider a number prior holdings. (10) Marin indicates that the vast majority of errors are of the forfeitable type. (11) Green v. State, (12) a case decided after Marin but before Terrazas, reaffirmed the proposition of law cited in Wicker but did not address the issue in light of Marin. (13) As a result, the law in this area is uncertain. If we are to decide that the absence of findings constitutes one of the few errors that are not forfeitable, we should give the issue more careful consideration than we have done in this case and we should clearly delineate the rule to be followed and the controlling precedent. But we really should not address the preservation issue because of a second problem. Whether or not the absence of findngs constitutes forfeitable error, the fact remains that this error was never brought to the attention of the court of appeals. While an appellate court may in its discretion address "unassigned" error, (14) it is rarely required to do so, and this case does not seem to involve the type of claim that an appellate court must recognize on its own. (15) And since the court of appeals did not address this unassigned error on its own, we should not address it either. (16) No case that addresses the absence of findings holds to the contrary. In Wicker, the issue was raised by the defendant in the court of appeals and was addressed by that court. (17) Green was a death penalty appeal in which the trial court filed its findings late, and the defendant claimed in a point of error that the appeal should be abated for the timely entering of findings. (18) In Bonham v. State, (19) one of the cases relied upon in Green, the defendant did not raise the issue. But that case was also a death penalty appeal, and therefore did not involve consideration of the issue by a second-level appellate court. (20) McKittrick and prior cases were decided before the intermediate courts had criminal jurisdiction. (21) Finally, the absence of findings was not raised as an issue in a petition for discretionary review before this Court. The State did not raise it, and appellant did not file a cross-petition. Therefore, we should not address the issue. (22) In sum, we should not address the issue of the absence of findings because it was not raised at trial, was not raised on direct appeal, was not addressed by the court of appeals, and was not raised in this Court. It should be an exceedingly rare occurrence for this Court to address on discretionary review an issue that has not been raised at any level in the judicial system. In my opinion, this is not one of those occurrences. I respectfully dissent. KELLER, Presiding Judge Date filed: February 16, 2005 Publish 1. Urias v. State, 2004 Tex. Crim. App. LEXIS 1751 at 4-5 (October 20, 2004). 2. Urias v. State, 104 S.W.3d 578, 585 (Tex. App.-El Paso 2003)("The State correctly points out that because there were no explicit findings of historical facts by the trial court in this case, the evidence must be viewed in a light most favorable to the trial court's ruling"). 3. 4 S.W.3d 720 (Tex. Crim. App. 1999). 4. 851 S.W.2d 275 (Tex. Crim. App. 1991). 5. 740 S.W.2d 779 (Tex. Crim. App. 1987). 6. McKittrick v. State, 535 S.W.2d 873, 875 (Tex. Crim. App. 1976), 7. See Wicker, 740 S.W.2d at 783. 8. 4 S.W.3d at 728. 9. See id. at 728-729 (trial court not required to enter findings to support a conclusion that a confession was involuntary). 10. Saldano v. State, 70 S.W.3d 873, 888-889. 11. Marin, 851 S.W.2d at 279. 12. 906 S.W.2d 937 (Tex. Crim. App. 1995). 13. Green, 906 S.W.2d at 939. 14. Wright v. State, 981 S.W.2d 197, 199, 199 n. 2 (Tex. Crim. App. 1998). 15. See e.g. Things Remembered v. Petrarca, 516 U.S. 124, 132 (1995)("every federal court, whether trial or appellate, is obliged to notice want of subject-matter jurisdiction on its own motion"). 16. See Whatley v. State, 956 S.W.2d 73, 76 n. 6 (declining to address "timing" issue because it was not raised before or considered by the Court of appeals). 17. 740 S.W.2d at 782. 18. 906 S.W.2d at 938. 19. 644 S.W.2d 5 (Tex. Crim. App. 1983) 20. Id. at 6-8. 21. See McKittrick, supra. 22. Whatley, 946 S.W.2d at 76 n. 6 (declining to address "timing" issue discussed in dissenting opinion: even if Court of appeals opinion could be interpreted as addressing the timing issue as unassigned error, it was not raised in the petition for discretionary review).