Villarreal v. State

MEYERS, Judge,

dissenting.

Relying on our opinion in Calloway v. State, 743 S.W.2d 645 (Tex.Crim.App.1988), the Court of Appeals in this case held that *155 “[a]n individual who has no possessory or proprietary interest in the premises, but is a guest, has no clothes in the house, or other belongings, has no legitimate privacy interest in the premises searched.” It seems to me that this proposition of law is plainly false on its face. As Justice Wilson argued in. dissent, and as the United States Supreme Court made clear in Minnesota v. Olson, 495 U.S. 91 , 110 S.Ct. 1684 , 109 L.Ed.2d 85 (1990), the existence of a proprietary interest is by no means legally essential to the claim that one has a reasonable expectation of privacy in certain premises. Indeed, Calloway itself seems to hold that 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, just as any other question of fact. To the extent that the Court of Appeals held otherwise, I believe it was in error. Accordingly, I think that its judgment must be reversed.

Furthermore, I do not agree that this Court should promulgate its own entirely new and, in my opinion, equally erroneous rule of law or that it should engage in a dynamic application of that or any other legal rule to the facts of this case. I would hold that the only rule of decision applicable to the issue presented here is that a person has no standing to complain about an unconstitutional search unless his expectation of privacy in the place searched is considered reasonable by his society. I would also hold that whether appellant’s expectation of privacy in this case was one which society actually considered reasonable is an empirical question to be resolved by the factfinder only after he hears all of the relevant evidence. Accordingly, I cannot concur in this Court’s judgment either.

The difficulty is a recurring one. Appellate courts are institutionally obliged to address and resolve a variety of questions affecting the fairness and validity of trials. The standard of appellate review is markedly different when the question involves a finding of fact than when it concerns a question of law. With regard to the latter, neither trial judges nor jurors may exercise discretion or judgment to ignore, discredit, diminish the importance of, or refuse fully to implement each and every requirement of the law which is applicable to the decisions they are called upon to make. To the extent that points of error on appeal call for elaboration or interpretation of identifiable constitutional and statutory provisions or authoritative judicial rules and decisions, appellate courts need not defer at all to trial judges or juries. Trial judges may not declare the law of a case to be other than it is, and juries may not nullify it with their verdicts.

The matter is very different with questions of fact. The institutional factfinder, whether judge or jury, is obliged to answer questions of this kind on the basis of evidence which he .may usually credit in whatever degree he sees fit. Except under extreme circumstances, he is regarded by the law as sole judge of the credibility of witnesses and of the weight to be given their testimony. The manner in which he performs these evaluations is not rule-governed, from which it follows that he has broad discretion in the task. As a result, appellate courts must defer to his decisions unless the evidence supporting them is so meager or the evidence against them so great that they appear objectively irrational.

What will eventually be manifest to anyone who thinks about this problem very long is that the difference between questions of law and questions of fact is largely a matter of convention. No problem actually presented on appeal is ever really just one or the other, and it is therefore possible to characterize every one either way. But because the law prescribes a different standard of review for each, it is important that reviewing courts at least describe the issue in a manner consistent with the kind of analysis they intend.

In the instant cause, the majority has identified the question presented as one of law, based mainly on this Court’s opinion in Cha-pa v. State, 729 S.W.2d 723 , 732 n. 3 (Tex.Crim.App.1987), wherein we directly addressed the issue, holding that

[wjhether a particular expectation of privacy is one society is willing to recognize ... is in the nature of a legal rather than a factual inquiry. All that is necessary to be proven as a factual matter is the particular *156 context in which appellant harbored that expectation. It is then left to be resolved as a matter of law whether in the context shown society is willing to sanction that expectation as reasonable or legitimate.

I disagree with this conclusion, and would hold that it has been undermined by recent opinions of this Court, decided since Chapa, which treat analogous issues as questions of fact to be reviewed according to a different and more deferential standard.

For example, in DuBose v. State, 915 S.W.2d 493 (Tex.Crim.App.1996) and State v. Carter, 915 S.W.2d 501 (Tex.Crim.App.1996), we recently held that the question whether a police officer has probable cause to search a person is a matter to be determined by the trier of fact based upon his evaluation of the relevant evidence and its significance.

When the courts of appeals analyze a trial court’s denial of a motion to suppress evidence they must be deferential to the trial court’s judgment, not only as to the historical facts, but also as to the legal conclusions to be drawn from the historical facts — at least so long as it appears the trial court has applied the correct standard of law to those historical facts. They should reverse the trial court’s decision only for an abuse of discretion; that is to say, only when it appears that the trial court applied an erroneous legal standard, or when no reasonable view of the record could support the trial court’s conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion.

DuBose, 915 S.W.2d at 497-98 . 1

What is here described as a legal conclusion could also be fairly characterized as an application of controlling law to the relevant facts of the case. Literally every issue presented to an appellate court which challenges a finding from which some consequence must follow as a matter of law is just such an issue. Thus, points of error which challenge the sufficiency of evidence to support a legal conclusion, that is any conclusion from which the law makes a certain consequence to follow, are application-of-law-to-fact issues. Such issues are distinguished from pure issues of law and fact by the circumstance that they must be proven at trial by one of the parties. Historical or evidentiary facts, on the other hand, need not be proven at trial, and no legal consequence follows from the failure of a party to prove them. Likewise, laws and propositions of law are ordinarily not subject to trial proof because the judge is assigned by our system the responsibility for declaring the law applicable to each case from his own knowledge or from sources not made a part of the evidentiary record.

It follows that historical or evidentiary factfindings are not reviewable on appeal at all. Declarations of law, on the other hand, must be strictly reviewed by appellate courts for their correctness. All other questions presented on appeal are application-of-law-to-fact questions, and they are generally reviewable under our system of jurisprudence only according to an abuse of discretion standard. That is to say, an appellate court may not set aside the conclusion of a lower court which was reached by the application of correct legal rules to relevant historical or evi-dentiary facts adduced at trial unless the conclusion is manifestly irrational, given the appropriate burden of proof. See Arcila v. State, 834 S.W.2d 357 (Tex.Crim.App.1992).

In the present context, a majority of this Court maintains that the question whether appellant’s subjective expectation of privacy in the searched premises was considered reasonable by his society is a question of law. Yet, the Court makes it his burden to prove *157 the legitimacy of this expectation, elaborating at some length a purportedly nonexhaustive list of potentially pertinent considerations, taken from our opinion in Calloway, 743 S.W.2d at 651 , which he might consider producing in evidence, since “he has greater access to the relevant facts[.]” Op. at 138. In my opinion, assigning the burden of proof in this way is patently inconsistent with the Court’s position that the matter in issue is a question of law. One need not adduce evidence (certainly not the kind of evidence here contemplated) to establish what class of privacy expectations, if any, the law holds to be reasonable. Simply looking up the law should be quite enough for this purpose if law really has anything to say about it. I am mystified, therefore, as to what sort of proof an accused is expected to make in this connection. How convincing must his proof be before he is entitled to prevail? Is the fact-finder at liberty to reject his proof if it seems incredible? And, if so, must the appellate court not defer in some measure to the fact-finder’s judgment on this question? Holding that an accused must prove society actually regards his expectation of privacy as reasonable seems plainly to hold that it is a question of fact or application of law to fact. For it is the facts, and only the facts, which must be proven at trial. The law is simply declared by the judge, and there need be no evidence adduced to support his declaration. 2

Thus, a majority of this Court falls into the same error as did the First Court of Appeals. It purports to establish a new rule of law, holding that “American society is not willing to sanction as reasonable the subjective privacy expectation of someone who is in a residence in order to arrange and conduct a business transaction.” Op. at 139. Even if I thought this odd proposition to be true, which I do not, it would still be an inappropriate and unnecessary way to resolve this case. The trial judge here refused to suppress the evidence seized from appellant, and the Court of Appeals affirmed his decision upon the basis of an erroneous legal principle. Rather than exacerbate the problem with an even less supportable rule of law, I would reverse the Court of Appeals, hold that the issue presented on appeal is an application-of-law-to-fact question, and remand this cause for further consideration by the First Court of Appeals under an appropriately deferential standard of review.

. The thoughtful concurring opinion of Presiding Judge McCormick takes a somewhat different view of DuBose and Carter than I do. He maintains that our holding in those cases merely requires a reviewing court to defer to implied factual findings such as witness credibility. Op. at 140. But with due respect to Judge McCormick's considered judgment in this matter, I think it is perfectly clear, even on a casual reading of our opinions in DuBose and Carter , that we require "great deference” on appeal to the judgment of a trial court as regards "[b]oth its findings of historical fact and its application of the law to those facts[.]” Carter, 915 S.W.2d at 504 . Thus, however problematic it may be in some contexts to defer on ultimate issues affecting application of important constitutional principles to the peculiar facts of individual cases, our opinions in Carter and DuBose plainly require appellate courts to do just that. Judge McCormick's representations to the contrary are, therefore, certainly mistaken.

. In his concurring opinion, Presiding Judge McCormick argues that the appropriate standard of review should turn, not merely upon whether the question presented is one of fact or of law or of both, but upon which judicial actor (trial judge or appellate court) is “better positioned” to decide the question. Op. at 139, 140. He intimates, without much elaboration, that applications of important constitutional principles should be uniform (not subject to "majoritarian political processes and temporary passions of the day”), and suggests that appellate courts are in a better position to ensure such uniformity than are the trial level courts. See Op. at 140. There is, of course, much persuasive force in this argument. But it is nevertheless at odds with the present state of our law, and would bring about profound changes in that law if adopted wholesale. Accordingly, even if very good reasons exist for assigning ultimate responsibility to the appellate courts as regards some applications of law to fact, our precedents do not yet accommodate such an approach. While it is true that we have often seized control of such questions, we have never attempted any coherent explanation of why we refuse to defer to the factfinder on certain application-of-law-to-fact questions and not on others. Instead, we simply pretend, as the majority does in the instant cause, that such questions are really questions of law after all. But they aren't, and the pretense only promotes sloppy thinking and erratic appellate review. If this Court is to take the position that some applications of law to fact are ultimately the province of appellate courts, it should fashion a comprehensible general theory for benefit of the bench and bar and not just run roughshod over the findings of lower courts whenever it disagrees with them.