NO. 0064-99







Keasler, J., delivered this dissenting opinion, in which Mansfield, J., joined, and Keller, J., joined as to Part I.


I would hold that Garcia waived any error in the trial court's failure to file written findings of fact pursuant to Article 38.22, 6. Even if Garcia had not waived error, I would hold that there is nothing wrong with one judge making findings based upon a hearing conducted by another judge.

I. Failure to Preserve Error

The court of appeals initially concluded, in an order to abate the appeal, that Art. 38.22 is "a mandatory rule that applies even in the absence of an appellate objection and is not susceptible to waiver."(1) The court of appeals cited Wicker v. State(2) for this proposition. It is true that we held in Wicker that compliance with Art. 38.22, 6, is required "whether or not the defendant objects to the absence" of written findings.(3) But that holding is questionable for several reasons.

First, nearly all of the opinions which contain this proclamation fail to contain any analysis whatsoever as to why an objection is not required.(4) The cases simply cite each other for the rule.(5) Many of the cases cite McKittrick v. State, which relied on Hester v. State (6) and Davis v. State. (7) But neither Hester nor Davis supports the Wicker rule.

In Hester, there was no mention one way or the other about whether the defendant objected to the trial court's failure to make written findings of fact. Instead, we simply determined that Art. 38.22, 6, is a mandatory statute, and we abated the appeal for the trial court to comply with the statute.(8) Since there is no discussion of whether an objection was made or whether the statute must be complied with in the absence of an objection, Hester cannot support the Wicker rule. Obviously, merely labeling the statute "mandatory" does not resolve the issue, because even "mandatory" requirements can be waived by the failure of the defendant to object.(9)

Davis does not support the Wicker rule either. In Davis, not only were there no findings of fact by the trial judge, there was also no indication whether the trial court ruled on the voluntariness of the confession at all. We recognized that, pursuant to Jackson v. Denno,(10) there must be a "clear-cut and reliable determination in the first instance of the voluntariness of the written statement."(11) We did not mention whether the defendant objected, but even if he did not, Davis is inapplicable since that case involved a complete failure by the trial court to rule on the voluntariness of the statement.

Neither Davis nor Hester stands for the proposition that a trial court must make findings of fact pursuant to Art. 38.22, 6, even when a defendant fails to request them or object to the lack of them. So all the following cases, which cite either McKittrick, Hester, or Davis, are not persuasive.

The Wicker rule is also questionable because it directly conflicts with more recent authority from this Court. In Marin v. State,(12) we explained that there are three types of rules, or rights, in our judicial system. In the first category are absolute, systemic requirements which must be complied with regardless of whether there is any request or objection.(13) This category, we explained, included few rights, but one example we used was jurisdiction. Regardless of any failure to object, if a trial court lacks jurisdiction, the conviction cannot stand.(14) In the second category are rules which must be implemented unless expressly waived.(15) This category includes some constitutional rights, like the right to counsel.(16) Finally, the third category includes rules which must be implemented upon request. This third category contains most of "the myriad evidentiary and procedural rules comprising our system."(17)

The Wicker rule would put compliance with Art. 38.22, 6, into the first Marin category, labeling it an absolute, systemic requirement. But this makes little sense. There is nothing absolute or systemic about a trial court making written findings of fact. The failure to make findings certainly does not deprive the trial court of jurisdiction.

Nor should compliance with Art. 38.22, 6, fall into the second Marin category. It is true that the statute is designed to ensure that only voluntary confessions are admitted at trial. Indeed, we indicated in Davis that the failure to comply with this statute also constituted a constitutional violation.(18) But the Supreme Court has held otherwise. That Court has recognized that Jackson v. Denno requires only that the judge's conclusion as to voluntariness "appear from the record with unmistakable clarity."(19) The Court has specifically stated that "the judge need not make formal findings of fact or write an opinion."(20) Based on the Supreme Court's own interpretation of Jackson v. Denno, making written findings of fact is not even a constitutional requirement, such that it might fall within the second Marin category.

There seems little doubt that filing written findings of fact pursuant to Art. 38.22, 6, falls within the third Marin category. It is simply a procedural rule designed to ensure that only voluntary confessions are admitted at trial. Procedural rules designed to protect constitutional rights are not themselves constitutional rights.(21) As a result, Garcia waived the right by not requesting written findings of fact or objecting to the trial court's failure to issue them.

The majority states that we have no jurisdiction to consider Garcia's failure to object because the court of appeals only addressed the mandatory nature of Art. 38.22, 6, in its order to abate the appeal. (22) I disagree. Garcia argues before the Court today that a second judge was not permitted to make findings of fact based on the original hearing. Our first opportunity to consider whether Garcia has preserved error is in today's opinion. I would hold that Garcia waived his claim by failing to object to the first judge's failure to make findings.

II. The Merits

On the merits, the majority holds that "it was not appropriate for the second judge in the instant case to make findings of fact based solely on the written transcript of the initial hearing."(23) I disagree.

The statute requires only that the court conduct a "hearing."(24) It does not mandate that the hearing consist of live witnesses. It is clear that hearings in other contexts may be by way of affidavit, rather than live witnesses.(25) Though we have never, to my knowledge, considered whether a hearing pursuant to Art. 38.22, 6, may be by affidavit, I see no reason to reach a contrary conclusion in this context.

That said, I have no difficulty concluding that a second trial judge may make findings based upon a "cold" record. In such a case, it is no different from a trial judge, in the first instance, making findings of fact based upon affidavits. In either case, the judge making the findings is reviewing written statements of sworn witnesses. Whether we, as judges, find this situation appropriate is not relevant, as the legislature has already indicated its approval of "paper" hearings in other contexts.

III. Conclusion

I would affirm the judgment of the court of appeals on these grounds. Because the majority does not do so, I dissent.

DATE DELIVERED: March 29, 2000


1. Garcia v. State, No. 07-97-0008-CR (Tex. App. -- Amarillo April 14, 1998) (order to abate appeal)).

2. 740 S.W.2d 779, 783 (Tex. Crim. App. 1987).

3. Ibid.

4. Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995); Wicker, supra; Bonham v. State, 644 S.W.2d 5, 8 (Tex. Crim. App. 1983); Dykes v. State, 649 S.W.2d 633, 636 (Tex. Crim. App. 1980); Simpson v. State, 603 S.W.2d 862, 865 (Tex. Crim. App. 1980); McKittrick v. State, 535 S.W.2d 873, 876 (Tex. Crim. App. 1976).

5. Green (citing Bonham, McKittrick and Davis); Wicker (citing McKittrick and Dykes); Bonham (citing McKittrick, Davis and Simpson); Dykes (citing McKittrick and Simpson); Simpson (citing McKittrick, Davis and Hester); McKittrick (citing Hester and Davis).

6. 535 S.W.2d 354 (Tex. Crim. App. 1976).

7. 499 S.W.2d 303, 304-06 (Tex. Crim. App. 1973).

8. Hester, 535 S.W.2d at 536.

9. See, e.g., Grant v. State, 970 S.W.2d 22, 23 (Tex. Crim. App. 1998) (missing element of offense required to be in indictment waived by failure to object); Baker v. State, 956 S.W.2d 19, 24 (Tex. Crim. App. 1997) (rule requiring motion for new trial to be heard within 75 days waived by failure to object).

10. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

11. Davis, 499 S.W.2d at 304-05.

12. 851 S.W.2d 275 (Tex. Crim. App. 1993).

13. Id. at 279.

14. Ibid.

15. Ibid.

16. Ibid.

17. Id. at 278.

18. Davis, 499 S.W.2d at 305.

19. Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967).

20. Ibid.

21. See Ex parte Tovar, 901 S.W.2d 484, 486 (Tex. Crim. App. 1995) (violation of Art. 26.13 statutory error, even though statute designed to protect constitutional right to voluntary guilty plea); Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex. Crim. App. 1993) (violation of Art. 1.13 statutory error, even though statute designed to protect constitutional right to trial by jury).

22. Ante, slip op. at 6 n.3.

23. Ante, slip op. at 4.

24. Art. 38.22, 6.

25. Art. 11.07, 3(d) (to resolve issues on habeas corpus, trial court may order "affidavits, depositions, interrogatories, and hearings"); Tex. R. App. P. 21.7 (court may receive evidence on a motion for new trial "by affidavit or otherwise").