Montanez v. State

JOHNSON, J.,

filed a dissenting opinion.

Our case law is replete with examples of the proper standard of review on issues that are not reliant upon a determination of credibility. Just six years ago, in Carmouche v. State, 10 S.W.3d 323 (Tex.Crim.App.2000), we declined to give almost total deference to the determinations of historical fact by the trial court because “the nature of the evidence in the videotape does not pivot on an evaluation of credibility and demeanor.” Carmouche at 332.

From 1981, the time at which the courts of civil appeals became courts of appeals and this Court became a true high court, until 1997, the standard for deference to the findings of trial courts on fact questions was “great deference.”1 The first appearance of “almost total deference” appeared in Presiding Judge McCormick’s concurring opinion in Yarborough v. State, *112947 S.W.2d 892 (Tex.Crim.App.1997), in which he said, “I believe that we should trust the trial courts to do their job fairly and announce a rule that the appellate courts in this State should show almost total deference to a trial court’s ruling on a Batson v. Kentucky claim since the trial court and not the appellate courts are in the best position to make the call.” Id. at 897. (McCormick, P.J., concurring.) In Joe Rivera Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997), Presiding Judge McCormick announced just such a rule saying, “However, as a general rule, the appellate court, including this Court, should afford almost total deference to a trial court’s determinations of the historical facts that the record supports especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor.... The appellate courts, including this Court, should afford the same amount of deference to trial courts’ rulings on ‘applications of law to fact questions,’ also known as ‘mixed questions of law and fact,’ if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.” Id. at 89. The opinion also cited to Judge McCormick’s concurring opinion in Villarreal v. State, 935 S.W.2d 134, 139 (Tex.Crim.App.1996) (“amount of deference appellate courts afford trial courts’ rulings turns on which ‘judicial actor is better positioned’ to decide the issue in question”). Joe Rivera Guzman thus set out a narrow rule: almost total deference on questions of fact that turn on credibility or demeanor. However, the only authority cited for that proposition was Presiding Judge McCormick’s concurring opinion in Villarreal.

Since 1981, 127 opinions from this Court have used the term “great deference” in various contexts, 94 before Joe Rivera Guzman and 33 after it.

I note that Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), on which the majority relies, is a federal civil case and thus is subject to very different rules and standards of proof and review. See, e.g., Manzi v. State, 88 S.W.3d 240, 245 (Womack, J., concurring) (“The Supreme Court decision in Anderson v. Bessemer City, on which the Court relies today, is inadequate to resolve the issue for us because we do not have the rule of procedure that the federal courts do. Anderson construed a rule. The decision to defer to findings of fact that are based on documentary evidence, rather than to find the facts de novo, was made when the rules [sic] was adopted, not in Anderson.”)

Anderson is also now more than twenty years old and predates many of our decisions on what deference is due to lower courts. It has been cited in only fourteen opinions, eleven of which were published. Of those eleven opinions, one was a concurring opinion, and eight cited Anderson in support of rulings on Batson claims, an issue that clearly involves determination of credibility and, especially, demeanor. One of the remaining two opinions, Kelly v. State, 163 S.W.3d 722 (Tex.Crim.App.2005), concerned a motion for speedy trial and addressed only the issue of the proper degree of deference to the trial court as to inferences drawn from undisputed facts. Id. at 726. In the other remaining opinion, Manzi, the issue was the level of deference to be afforded rulings made only on the basis of affidavits. The Manzi majority asserted that Benito Guzman v. State, 85 S.W.3d 242 (Tex.Crim.App.2002), a Batson case, relied “heavily” on United States Supreme Court precedent, then cited Anderson and quoted a section from it, emphasizing that deference is due when the findings are not based on credibility, “but are based instead on physical or doc*113umentary evidence or inferences from, other facts.” Id. (Italics in original.)

The Manzi majority also stated that “[Benito] Guzman did not purport to hold that historical fact issues could be reviewed de novo if credibility and demeanor considerations were absent.” Manzi at 243. But as Judge Womack noted in his concurrence, “it is also true that [Benito Guzman ] did not purport to hold that the same standard of almost total deference should apply when credibility and demean- or considerations were absent.” Id. at 248 (Womack, J. concurring). Indeed, the standard used by the Supreme Court in Anderson was “clearly erroneous,”2 a far cry from “almost total deference.”

The Manzi majority noted that “the fact remains that it is traditionally the role of the trial court to resolve issues of historical fact, whether or not credibility and demeanor determinations are involved.” Id. Resolution of fact issues is indeed one of the traditional roles of a trial court, but that is not to say that appellate review of the execution of such traditional roles is barred or inappropriate. Indeed, almost everything a trial court does is subject to appellate review; under some standard, whether “almost total deference” or de novo.

A high degree of deference to determinations of fact issues based on affidavits may be appropriate, as the trial court is well acquainted with the circumstances and may be acquainted with one or more of the affiants, either personally or by reputation. Credibility may also be judged by both internal and external consistency of the statements in an affidavit. Some hint of “demeanor” may be gleaned from the language and tone.3 Videotapes are a different matter; they are what they are. An appellate “judicial actor” is in no worse position to determine fact issues presented by the tape than is a trial court.

While some degree of deference is due, we do not owe “almost total” deference to a lower court’s finding that is based on matters that rely not at all on credibility or demeanor. I believe that we should return unequivocally to the standard of “great deference.” As the United States Supreme Court said in Anderson, “This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable fact finder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination.” Id. at 575, 105 S.Ct. 1504.

I respectfully dissent.

. See, e.g., Torres v. State, 182 S.W.3d 899 (Tex.Crim.App.2005); Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App.2004); Gibson v. State, 144 S.W.3d 530 (Tex.Crim.App.2004); Swearingen v. State, 143 S.W.3d 808 (Tex.Crim.App.2004); Hanks v. State, 137 S.W.3d 668 (Tex.Crim.App.2004); Laney v. State, 117 S.W.3d 854 (Tex.Crim.App.2003); Guajardo v. State, 109 S.W.3d 456 (Tex.Crim.App.2003); Swearingen v. State, 101 S.W.3d 89 (Tex.Crim.App.2003); Herron v. State, 86 S.W.3d 621 (Tex.Crim.App.2002); Corbin v. State, 85 S.W.3d 272 (Tex.Crim.App.2002); State v. Scheineman, 77 S.W.3d 810 (Tex.Crim.App.2002); Johnson v. State, 68 S.W.3d 644 (Tex.Crim.App.2002); Roquemore v. State, 60 S.W.3d 862 (Tex.Crim.App.2001); Villarreal v. State, 935 S.W.2d 134 (Tex.Crim.App.1996); State v. Carter, 915 S.W.2d 501 (Tex.Crim.App.1996); Vargas v. State, 838 S.W.2d 552 (Tex.Crim.App. 1992); Young v. State, 826 S.W.2d 141 (Tex.Crim.App.1991); Miller-El v. State, 748 S.W.2d 459 (Tex.Crim.App.1988); Gold v. State, 736 S.W.2d 685 (Tex.Crim.App. 1987).

. "Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.... Rule 52(a) ... states straightforwardly that 'findings of fact shall not be set aside unless clearly erroneous.’ ” Anderson v. City of Bessemer, 470 U.S. 564, 573-574, 105 S.Ct. 1504, 84 L.Ed.2d 518.

. See, e.g., Kelly v. State, 163 S.W.3d 722, 726-27 (Tex.Crim.App.2005) ("Moreover, the trial judge’s personal knowledge of the parties and the sequence of events do in fact place him in a better position to draw inferences than an appellate court without such familiarity”)-