In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-16-00135-CR


                        THE STATE OF TEXAS, APPELLANT

                                          V.

                       NATHANIEL JAY KAPLAN, APPELLEE

                          On Appeal from the 69th District Court
                                 Sherman County, Texas
                   Trial Court No. 973, Honorable Ron Enns, Presiding

                                  October 31, 2016

                           MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      The State of Texas has filed an interlocutory appeal of the trial court’s order

granting appellee Nathaniel J. Kaplan’s motion to suppress evidence.1 Both the State’s

brief and appellee’s brief have been filed. The State has presented two issues. For




      1
         See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West 2015) (State may
appeal trial court’s grant of motion to suppress evidence).
reasons we will outline, on our own motion we will abate the appeal and remand the

cause to the trial court.


        Kaplan was indicted for possession of marijuana and another controlled

substance. The illegal substances were found in his vehicle when it was searched after

a traffic stop. Kaplan’s motion to suppress asserted the Stratford, Texas officers who

made the stop did not see him commit a traffic violation and thus had no objective basis

justifying the stop. The motion contained a detailed analysis of the officers’ report and

of the video from their patrol car camera. The motion’s argument was based on the

provisions of Texas Transportation Code section 544.010, regarding a driver’s duty to

stop at an intersection with a stop sign.2


       The arresting officer testified at the suppression hearing.      He asserted the

intersection at which he stopped Kaplan is governed by Transportation Code section

554.008(a), which addresses intersections containing a flashing red signal. 3 He testified

he observed Kaplan’s vehicle stopped with its front tires resting on the forward edge of

the stop line, the tires having passed over the painted line. Counsel and the court

discussed both transportation code sections at the hearing, and the court stated from

the bench an opinion regarding the proper interpretation of section 554.008(a). The

State argued a different interpretation, and the State argued the stop in any event could

be justified under the holding of the United States Supreme Court’s opinion in Heien v.




       2
           TEX. TRANSP. CODE ANN. § 544.010 (West 2015).
       3
           TEX. TRANSP. CODE ANN. § 544.008(a) (West 2015).


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North Carolina.4 The court announced its ruling granting the motion to suppress and

signed an order the next day.


       Both the State and Kaplan submitted proposed findings of fact and conclusions

of law. The court signed those submitted by Kaplan. Those findings, like the motion to

suppress, appear to be based on the law applicable to intersections governed by stop

signs. The findings also suggest the court’s ruling might have been influenced by

credibility determinations regarding the vehicle’s actual, or at least initial, stopping point,

as reflected by the officer’s testimony and the views depicted from the video. Neither

the findings nor conclusions mention the court’s stated opinion regarding the proper

interpretation of section 554.008(a).


       When reviewing a trial court’s ruling on a motion to suppress, appellate courts

uphold the ruling of the court if it is correct under any theory of law applicable to the

case, even if the trial court did not rely on that theory in making its ruling. State v.

Copeland, No. PD-1549-15, 2016 Tex. Crim. App. LEXIS 1195, at *4-5 (Tex. Crim. App.

2016) (citing Calloway v. State, 743 S.W.2d 645 (Tex. Crim. App. 1988)). A “theory of

law applicable to the case” is one presented at trial in such a manner that the appellant

was fairly called upon to present evidence on the issue. Id. (citation omitted). On

request of the losing party, a trial court must issue essential findings of fact and

conclusions of law that justify its ruling. Id. (citing State v. Cullen, 195 S.W.3d 696, 698-

99 (Tex. Crim. App. 2006)). The requirement for “essential findings” means that the trial

court must make findings of fact and conclusions of law “adequate to provide an



       4
           2014 U.S. LEXIS 8306, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014).

                                              3
appellate court with a basis upon which to review the trial court’s application of the law

to the facts.” Id. (citing State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011).


       “In issuing its essential findings, trial courts have an obligation to ensure that they

are ‘adequate and complete, covering every potentially dispositive issue that might

reasonably be said to have arisen in the course of the suppression proceedings.’”

Copeland, 2016 Tex. Crim. App. LEXIS 1195, at *5 (citations omitted). The essential-

findings requirement exists to ensure that appellate courts resolve issues presented on

appeal “based on the reality of what happened at the trial court level rather than on

appellate assumptions that may be entirely fictitious.” Id. (citations omitted); see also

State v. Saenz, 411 S.W.3d 488 (Tex. Crim. App. 2013); State v. Mendoza, 365 S.W.3d
666 (Tex. Crim. App. 2012) (both applying Elias).


       From our review of the motion to suppress and the record of the suppression

hearing, we find the findings and conclusions submitted by Kaplan’s counsel and signed

by the trial court are not complete or adequate. They do not address “every potentially

dispositive issue that might reasonably be said to have arisen in the course of the

suppression proceedings,” Elias, 339 S.W.3d at 676, nor are they adequate to provide

us a basis on which to review the trial court’s application of the law to the facts. Id. at

674. Accordingly, we must abate the interlocutory appeal and remand the cause to the

trial court. TEX. R. APP. P. 44.4; Elias, 339 S.W.3d at 676. On remand, we direct the trial

court to execute supplemental findings of fact and conclusions of law, consistent with

the authority we have cited. Our summary of the proceedings in the trial court is not

intended to limit the issues the trial court may consider appropriate to address in its



                                              4
supplemental findings and conclusions. Its supplemental findings, however, must be

based on the facts that currently appear in the record. Saenz, 411 S.W.3d at 497 n6.


      The court’s supplemental findings and conclusions shall be filed with the clerk of

this Court, via a supplemental clerk’s record, as soon as is feasible and in any event by

November 21, 2016. If additional time is needed, the court may request it by that date.


      It is so ordered.


                                                      Per Curiam


Do not publish.




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