the 54th District Court McLennan County, Texas Trial Court
Chief Justice Gray, Justice Davis, and Justice Neill
November of 1999, Pete Gonzales was convicted of aggravated
robbery and sentenced to 40 years in prison. He appeals the
trial court's denial of his fifth Motion for Forensic DNA
complains in his second issue on appeal that the trial court
erred in failing to make findings of fact and conclusions of
law which would allow a meaningful review on appeal. Gonzales
specifically contends that the lack of findings and
conclusions fail to provide him with meaningful insight as to
why the court ruled as it did. We agree that findings are
needed in this case.
conclusion of the hearing on Gonzales's motion, the trial
court stated, "I'm gonna grant the motion." But
before the court could sign an order memorializing its
ruling, the State filed a motion for reconsideration. Only
then did the trial court decide to deny the motion; and in
that denial, the trial court did not identify the rationale
for the new ruling other than to say the State's motion
to reconsider and the additional post-hearing legal authority
provided by the State caused him to change his mind. That
additional post-hearing legal authority provided by the State
and relied upon by the trial court was an unpublished opinion
from the Court of Criminal Appeals that was issued after the
hearing on Gonzales's motion but prior to the entry of a
may order forensic DNA testing only if the court
makes certain findings. See Tex. Code Crim. Proc.
Ann. art 64.03(a). Although we have held that findings are
required only if the trial court orders forensic DNA testing,
Birdwell v. State, No. 10-09-00409-CR, 2011 Tex.App.
Lexis 10235, *7 (Tex. App.-Waco, Dec. 28, 2011, no pet.)
(mem. op.), the Court of Criminal Appeals has determined that
at least findings as to what part of the statute the movant
did not prove is required when such a motion is denied.
See Skinner v. State, 122 S.W.3d 808, 809, 812 (Tex.
Crim. App. 2003).
appeal, the State again relies, at least in part, on that
unpublished Court of Criminal Appeals opinion to support its
argument that findings are not required in this case.
Although the opinion may have some bearing on the necessity
of findings in Chapter 64 proceedings, unpublished opinions
from the Court of Criminal Appeals have no precedential value
and must not be cited as authority by counsel or by
a court. Tex.R.App.P. 77.3 (emphasis added); Skinner v.
State, 293 S.W.3d 196, 202 (Tex. Crim. App. 2009). Thus,
we will neither discuss, nor rely on, nor cite to the
State also relies on the Court of Criminal Appeals opinion in
Skinner for its argument that findings are not
required. See Skinner v. State, 122 S.W.3d 808 (Tex.
Crim. App. 2003). Skinner is distinguishable. In
Skinner, the trial court denied the appellant's
motion for forensic DNA testing but failed to "enter
determinations under article 64.03 of the Texas Code of
Criminal Procedure." Id. at 809. The Court of
Criminal Appeals remanded the appeal to the trial court with
directions to enter an order containing the relevant article
64.03 determinations. Id. Consequently, the trial
court entered an order finding that the appellant did not
satisfy the requirements of article 64.03(a)(2)(A) and
(a)(2)(B). Id. When the appellant complained on
remand that the trial court's failure to provide specific
findings undermined the structure of the statute, the Court
of Criminal Appeals determined that because findings under
article 64.03(a)(2)(A) and (a)(2)(B) are reviewed de
novo, the trial court's findings were sufficient.
Id. at 813.
case, however, we are in the same posture as the Court of
Criminal Appeals was at the beginning of the opinion in
Skinner; we have no findings whatsoever. And we
cannot appropriately review whether the trial court erred in
denying Gonzales's motion for forensic DNA testing
without relevant findings.
this appeal is ABATED to the trial court to make findings
regarding the relevant article 64.03 determinations within 21
days from the date of this Order. The trial court clerk is
ordered to file a supplemental clerk's record containing
the trial court's findings within 28 days from the date
of this Order.