State v. Terrazas

PRICE, J.

delivered a dissenting opinion in which MEYERS and JOHNSON, J.J., joined.

I dissent. The majority asserts that it is justified in conducting a de novo review of this mixed question of law and fact because its resolution does not turn on an evaluation of credibility and demeanor. According to the majority, the essential implied fact finding to which we must defer is that Rodriguez told appellee “what had to be” in her statement. The majority avers that since the ultimate resolution of the voluntariness question does not turn on this implied fact finding, we may review de novo the trial court’s and the court of appeal’s legal ruling on the voluntariness question. Ante, at 726. This is incorrect. The controversy at issue here is not that the statement was made, but rather what was meant by the statement. More aptly put, what did Rodriguez mean when he made the statement, and given the circumstances and details of the questioning, what did appellant think Rodriquez meant when she heard the statement. 1 The reso *730 lution of this controversy must turn on an evaluation of credibility and demeanor.

In actuality, the majority appears to be attempting to avoid the dictates of Guzman by reasoning that the appellant failed to present evidence raising a voluntariness question. To further support this analysis, it points to the absence of evidence in the record of any type of practice by Rodriguez that has historically been held inherently coercive. Ante, at 727. In other words, the majority reasons that the defendant failed to prove involuntariness, and therefore did not raise it. In doing so, it creates a false dichotomy wherein the appellate courts are required to determine the factual merits of a case before they determine which standard of review to apply. I too recognize that the appellant was not subject to threats of mob violence, persistent and protracted questioning, torture, a recurrence of the Inquisition or the Star Chamber. However, the aforementioned practices do not constitute an exclusive list of circumstances which would render a statement involuntary. Quite the contrary. In Schneckloth v. Bustamante, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), the Supreme Court explained that when determining whether a defendant’s will was overborne in a particular case, courts should assess the totality of all of the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. Id at 226, 93 S.Ct. at 2047 . The Court explained that numerous factors may be considered including: the age of the accused, the accused’s lack of education or low intelligence and the lack of any advice to the accused of his or her constitutional rights. Id. (citations omitted).

Appellate courts should afford almost total deference to a trial court’s determination of the historical facts supported by the record, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Appellate courts should afford the same amount of deference to a trial court’s ruling on the application of law to fact, 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. The trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given their testimony at a hearing on a motion to suppress. Romero, 800 S.W.2d at 543.

Rodriguez testified that when taking a statement he tells the person that “this is what the allegations are, and this is what has to go on the voluntarily [sic] statement.” Defense counsel asked, “But you basically say, this is what has to be put in there, right?” Rodriguez said that was correct. The trial court asked Rodriguez what he told Appellee had to be in the statement. Rodriguez answered, “I did not report this information within ten days.” Although Rodriguez explained that Appellee told him that she did not report within ten days and that he just told Ap-pellee that she needed to put that in the statement, the trial court could have disbelieved the explanation.

The State had the burden to prove by a preponderance of the evidence that Appel-lee’s statement was given voluntarily. Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1995). By ruling that Appellee’s statement was involuntary, the trial court concluded that the State had not met its burden. The trial court’s ruling was correct if the judge did not believe Rodriguez, especially Rodriguez’ explanation about what he meant by his testimony that he told Appellee what to put in the statement. Compare Romero, 800 S.W.2d at 543 (trial court’s suppression of statements correct under theory that judge could have believed defendant, rather than the police officer or justice of the peace) with State v. Skiles, 938 S.W.2d 447, 451-52 (Tex.Crim.App.1997) (trial court’s suppression of evidence on basis of illegal roadblock was erroneous, because trial court found that *731 all of the police officer’s testimony was truthful, and that testimony showed there was no roadblock). Under the State’s argument and the Court of Appeals’ holding, the trial court would have been required as a matter of law to believe all of Rodriguez’ testimony. There is no such requirement.

I would reverse the judgment of the Court of Appeals, and affirm the trial court’s order suppressing the statement.

. This issue calls to mind the film "Let Him Have It,” which was based on the famous "Derek Bentley Confession” case in post WWII England.

Two boys who were trying to break into a building were cornered on a rooftop by a policeman. One of the boys had a gun. The policeman calmly reached out his hand and asked the boy to hand over the gun. The other boy said, "Let him have it.” The boy with the gun pulled the trigger and killed the officer.

What did the phrase, "Let him have it,” really mean? There are two possibilities: "Hand over the gun!” Or, "Shoot him!” A British jury decided upon the second possibility and the boy, a retarded young man named Derek Bentley was convicted of murder and hanged. Roger Ebert, Let Him Have It (visited June 3, 1999) <http://www.suntimes.com/ebert/ebert_re-views/1992>.