Villarreal v. State

McCORMICK, Presiding Judge,

concurring.

I concur with the majority opinion that the ultimate question of appellant’s standing to complain about the police entry into Varner’s private residence is a “question of law.” I write separately to point out that this is consistent with how the United States Supreme Court characterizes analogous issues. See Miller v. Fenton, 474 U.S. 104 , 106 S.Ct. 445 , 88 L.Ed.2d 405 (1985). It is difficult to formulate a bright-line rule “that will unerringly distinguish a factual finding from a legal conclusion.” See Miller, 474 U.S. at 113 , 106 S.Ct. at 451 . Many cases present issues that some label as “mixed questions of law and fact.” See Miller, 474 U.S. at 113 , 106 S.Ct. at 451 .

The amount of deference a reviewing court affords a trial court’s ruling on a “mixed question of law and fact,” or whether an issue is characterized as one of “law” or “fact,” often turns on which “judicial actor is better positioned” to decide the issue in question. See Miller, 474 U.S. at 113-14 , 106 S.Ct. at 451-52 (when, for example, the issue involves the credibility of witnesses and therefore turns largely on an evaluation of demeanor and resolution of the issue is dispositive of the ultimate constitutional question, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court and according its determinations presumptive weight). The overriding principle, at least with respect to constitutional questions, is that where the trial court “is not in an appreciably better position” than the appellate court to decide the issue, the appellate court may independently determine the issue while affording deference to the trial court’s findings on subsidiary factual questions. See Miller, 474 U.S. at 110-17 , 106 S.Ct. at 450-53 .

This does not mean the reviewing court should not “give great weight” to a trial court’s “considered [legal] conclusions” or its application of the relevant legal principle to the particular facts of the case. See Miller, 474 U.S. at 112-14 , 106 S.Ct. at 451 . However, appellate courts should not abandon their “primary function as an expositor of law” or their duty to protect our constitutional rights. See Miller, 474 U.S. at 114, 116-18 , 106 S.Ct. at 451, 453 .

The dissenting opinion would hold “the existence of a privacy expectation and its legitimacy are empirical questions to be decided by the factfinder upon the basis of all relevant evidence.” See Villarreal v. State, 935 S.W.2d 134 (Tex.Cr.App.1996) (Meyers, J., dissenting). This approach comes perilously close to subjecting our constitutional rights too closely to majoritarian political processes and temporary passions of the moment, which is inconsistent with the idea *140 underlying the Bill of Rights. See, e.g., Article I, Section 29, Tex. Const.; Ex parte Ainsworth, 532 S.W.2d 640 (Tex.Cr.App.1976) (legislative amendment may not alter the scope of constitutional protections); Faulk v. Buena Vista Burial Park Ass’n, 152 S.W.2d 891, 893-94 (Tex.Civ.App.—El Paso 1941, no writ) (all powers of government are subject to the Bill of Rights); see also Miller, 474 U.S. at 116-18 , 106 S.Ct. at 453 (circumstances under which police obtain a confession elevate the risk that erroneous resolution of the voluntariness question as a “fact” issue might inadvertently frustrate the protection of our constitutional rights). While at times members of this Court have vehemently disagreed on the exact scope of protection of a particular constitutional provision and I have criticized various opinions of this Court for finding constitutional rights not contained in the literal text of the constitutional provision at issue, 1 a majority of this Court should agree on the principle that whatever bundle of rights a particular constitutional provision guarantees does not involve an “empirical question,” at least where resolution of the ultimate constitutional question does not depend upon the factfinder’s evaluation of credibility and demeanor. Under these circumstances, appellate courts have the power to decide the issue independently. See Miller, 474 U.S. at 110-17 , 106 S.Ct. at 450-53 .

Also contrary to the position taken by the dissenting opinion, our opinion in this case is consistent with this Court’s recent decisions in, and should yield the same results as, DuBose v. State, 915 S.W.2d 493 (Tex.Cr.App.1996), and State v. Carter, 915 S.W.2d 501 (Tex.Cr.App.1996). In Carter , the State presented one witness at the hearing on the defendant’s motion to suppress. At the conclusion of the hearing, the trial court stated that “there was not probable cause at all to walk up and begin searching” even with “taking into the account the information from the confidential informant.” The trial court made no findings of fact. The State lost in the trial court, and appealed to the Court of Appeals which reversed the trial court. This Court reversed the Court of Appeals because it failed to show the proper amount of deference to the trial court’s ruling. The main problem in Carter was that the Court of Appeals failed to view the evidence in the light most favorable to the trial court’s ruling and defer to the trial court’s implied findings on credibility and weight of the evidence. Given the absence of any factual findings, the appellate presumption of the regularity of a trial court’s judgment, and which party had the burden of proof, the trial court’s implied factual findings were dispositive of the ultimate constitutional question of probable cause. See Miller, 474 U.S. at 112-16 , 106 S.Ct. at 451-52 . The problem in DuBose was that the Court of Appeals viewed the facts “myopically” to conclude there was no evidence to support the trial court’s judgment; i.e., the Court of Appeals failed to view the evidence in the light most favorable to the trial court’s ruling. 2

I do not read DuBose and Carter as requiring appellate courts to abandon their role of protecting our constitutional rights. I read these cases as reaffirming our policy, after this Court’s recent decision in Clewis v. State, 3 that the reviewing court should give *141 “great weight” to a trial court’s “considered [legal] conclusions” while affording total deference to a trial court’s credibility and weight determinations. See Miller, 474 U.S. at 112-14 , 106 S.Ct. at 451 . DuBose and Carter were not intended to effect a sea change in how appellate courts have reviewed trial courts’ legal and factual rulings.

Finally, in this case, the trial court was not in an “appreciably better position” than the appellate court to determine whether appellant’s expectation of privacy in Varner’s residence was one society is prepared to recognize as reasonable. However, this Court has not been persuaded that the Court of Appeals erred to agree with the trial court’s implied legal conclusion that, under the factual circumstances of this case, appellant’s expectation of privacy in Varner’s residence was not one society is prepared to recognize as reasonable. After all, when appellant ran from the police, the police chased appellant from a public place into a private residence not belonging to appellant after the police had just seen appellant involved in criminal activity in the public place.

Miller v. Fenton should provide useful guidance to appellate courts in this State on how to characterize an issue as one of “law” or “fact.” With these additional comments, I join the majority opinion.

. See Bander v. State, 921 S.W.2d 696 , 706 fn. 5 (Tex.Cr.App.1996) (McCormick, P.J., dissenting) (plain language of Texas’ Double Jeopardy Clause merely prohibits the State from prosecuting a defendant for an offense of which the defendant previously has been acquitted); compare Witte v. United States,-U.S.-,- -, 115 S.Ct. 2199, 2209-2210 , 132 L.Ed.2d 351 (1995) (Scalia, J., concurring in the judgment) (Federal Double Jeopardy Clause merely prohibits the government from prosecuting a defendant twice for the same offense).

. This Court has reversed trial courts’ rulings on suppression motions on questions of law under other sets of circumstances. That is where a trial court’s express or implied factual findings have not supported its legal conclusions. In such cases, this Court has made an independent determination of the question of “law." This is more or less what happened in cases like Farmah v. State, 883 S.W.2d 674 (Tex.Cr.App.1994).

.See Clewis v. ,State, 922 S.W.2d 126 (Tex.Cr.App.1996) (permitting appellate courts, in reviewing the sufficiency of the evidence to support ffie elements of the offense, to second-guess the jury on questions of credibility and weight of the evidence). I read DuBose and Carter as limiting this Court's holding in Clewis . That is the main reason I voted with the majority in these cases. Otherwise, it would make no sense for appellate courts to show more deference to a trial court's *141 "legal” conclusions than the deference they show to a trial court’s “factual" conclusions.