                                COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON


                                 ORDER OF ABATEMENT

Appellate case name:          Keith Allen Kupferer v. The State of Texas

Appellate case number:        01-11-00619-CR

Trial court case number:      1237989

Trial court:                  338th District Court of Harris County, Texas

       Appellant Keith Allen Kupferer pled guilty to first degree murder with a deadly
weapon and was sentenced to forty years in the Texas Department of Corrections. See
TEX. PENAL CODE§ 29.03(a)(2) (West 2011). Before pleading guilty, Kupferer filed a
motion to suppress his confession, which he contended was obtained in violation of the
Fifth Amendment because police officers continued to question him after he
unambiguously invoked his right to remain silent. After a suppression hearing, the trial
court denied Kupferer’s motion and entered findings of fact and conclusions of law.

         In reviewing a ruling on a motion to suppress, we give almost total deference to a
trial judge’s explicit findings of fact. State v. Castleberry, 332 S.W.3d 460, 465 (Tex.
Crim. App. 2011). The Court of Criminal Appeals has held that “upon the request of the
losing party on a motion to suppress evidence, the trial court shall state its essential
findings.” State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). These include
“findings of fact and conclusions of law adequate to provide an appellate court with a
basis upon which to review the trial court’s application of the law to the facts.” Id. This
requirement assures that appellate resolution of the suppression issue is based on the
reality of what happened at the trial court rather than on appellate assumption that may be
entirely fictitious. State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing
Cullen, 195 S.W.3d at 699).

        In some cases the trial court may make explicit findings it considers dispositive of
the historical facts, but that the appellate court determines are insufficient to resolve the
legal issues. See, e.g., Elias, 339 S.W.3d at 676–77. In Elias, the trial court granted a
motion to suppress and entered written findings of fact and conclusions of law, and the
court of appeals affirmed. The Court of Criminal Appeals concluded, based on the
testimony and argument developed at the suppression hearing, that the trial court was on
“notice that the question whether the [defendant] activated his turn signal within a
hundred feet of the intersection was potentially dispositive of the legality of his initial
detention,” and yet the trial court’s findings did not address this potentially dispositive
issue. Id. at 676. Therefore, the Court held that the trial court erred to conclude that its
findings of fact were legally dispositive of the motion to suppress, and that the court of
appeals should have remanded the case to the trial court for entry of additional, specific
findings of fact and conclusions of law with respect to this dispositive issue. Id. at 676–
77.

        Here, Kupferer contends that he invoked his Fifth Amendment right to remain
silent by telling the Houston Police Department officer conducting the interview: “To tell
you the truth, I really don’t want to talk about it, but I mean.” The record reflects that
defense counsel specifically asked the trial court to make a finding on whether this was
an invocation of his right to remain silent. In response, the trial court made only a
finding regarding Kupferer’s waiver of his rights: “I find, after again the defendant began
asking questions himself and then answering the questions of [the officer], that he did in
fact waive his rights.”

        The trial court thus focused on the issue of waiver and made no finding as to
whether Kupferer’s statement was an invocation of his right to remain silent. However,
the issues of invocation and waiver are two distinct inquiries. See Smith v. Illinois, 469
U.S. 91, 98, 105 S.Ct. 490 (1984). Based on the arguments and testimony developed at
the suppression hearing and the explicit request by defense counsel for a finding on the
issue, the trial court was on notice that the question of whether Kupferer unambiguously
invoked his right to remain silent was potentially dispositive of its admissibility ruling,
yet the trial court failed to make an express finding with respect to this issue. We need
not presume, assume, or guess at what historical facts a trial court actually found when
ruling on a motion to suppress. Mendoza, 365 S.W.3d at 670. The more prudent course
is to abate this case and remand to the trial court for entry of more specific supplemental
findings of fact and conclusions of law. See Mendoza, 365 S.W.3d at 672–73; Elias, 339
S.W.3d at 676–77.

        Accordingly, we abate the appeal and remand the case for entry of additional
findings of fact and conclusions of law. The trial court is directed to make written
findings on: (1) whether Kupferer unambiguously invoked his right to remain silent; (2)
if so, whether Sergeant Chappell scrupulously honored that invocation; and (3) any other
matters the trial court deems relevant or necessary to provide this court a basis for
reviewing the ruling’s correctness. The written findings of the trial court shall be
included in a supplemental clerk’s record and sent to this Court within 30 days of the
date of this order.

        Kupferer’s supplemental brief, if any, will be due twenty days after the
supplemental clerk’s record is filed. The State’s supplemental brief, if any, will be due
twenty days after Kupferer’s supplemental brief is due, or is filed, whichever occurs
earliest.

        It is so ORDERED.

Judge’s signature:     /s/ Justice Huddle
                      Acting individually    Acting for the Court

Date:                   October 17, 2012
