Dale A. Wolf v. The State of Texas--Appeal from 13th District Court of Navarro County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 2004 » Dale A. Wolf v. The State of Texas--Appeal from 13th District Court of Navarro County

State: Texas

Court: Texas Northern District Court

Docket No: 10-02-00147-CR

Case Date: 05/12/2004

Plaintiff: Dale A. Wolf

Defendant: The State of Texas--Appeal from 13th District Court of Navarro County

Preview:Dale A. Wolf v. The State of Texas--Appeal from 13th
District Court of Navarro County
MAJORITY | MAJORITY
Dale A. Wolf v. State /**/
IN THE
TENTH COURT OF APPEALS
No. 10-02-00147-CR
DALE A. WOLF,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 28,225
DISSENTING OPINION
In not giving almost total deference to the trial court s determinations of fact, the majority has used the wrong standard
of review. See Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003); Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997). I respectfully dissent.
The trial court s ruling on a motion to suppress evidence is subject to the discretion of the court. Tex. Code Crim. Proc.
Ann. art. 28.01(6) (Vernon 1989); see Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003). Only when the case
presents the appellate court with a question of law based on undisputed facts does the court review the ruling de novo.
Id. However, a reviewing court must give almost total deference to a trial court s determination of historical facts.
Rayford at 528; accord Guzman at 89. Moreover, an appellate court is obligated to uphold the trial court s ruling on
[an] appellant s motion to suppress if that ruling was supported by the record. Armendariz v. State, 123 S.W.3d 401,
404 (Tex. Crim. App. 2003), cert. denied, 158 L.Ed.2d 469 (2004). Where the trial court does not make express
findings of fact, appellate courts review the evidence in a light most favorable to the trial court s ruling and assume
that the trial court made implicit findings of fact supported in the record. Balentine v. State, 71 S.W.3d 763, 738 (Tex.
Crim. App. 2002).
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The majority states that the facts are not disputed, and thus uses a de novo standard of review. (Slip op. at 4.). But the
facts are disputed. Appellant introduced a video recording of the stop. As the record shows, the trial court did not view
the recording in the hearing on the motion to suppress, although he had done so in a proceeding concerning Appellant
s co-defendant. For that reason, we should be leery of putting much weight on the video. But the majority apparently
credits the video to the exclusion of the live testimony before the court. We must, instead, defer to the trial court s
determination of the facts, and to the trial court s determination of mixed questions of law and fact, even when those
determinations are based on evidence concerning which the trial court has little or no advantage over the appellate
court, such as affidavits. Manzi v. State, 88 S.W.3d 240, 242-44 (Tex. Crim. App. 2002). This rule has even stronger
effect in the review of video recordings, whose images and sounds are often difficult to understand and interpret.
Appellant testified that the video recording was partial and imperfect, in that there s parts of it that the audio has been
dropped out. To the extent that the recording differs from the testimony of the witnesses, the historical facts are
disputed. Moreover, there were conflicts between the arresting officer s testimony on direct and on cross-examination.
For example, on direct examination, he testified that he had [p]rior [criminal] histories on both subjects while he was
writing warnings for Appellant and his passenger; but on cross-examination, the officer testified to the contrary.
Accordingly, we must give almost total deference to the trial court s determination of those facts and of mixed
questions of law and fact, so long as those determinations are supported by the record. Here, the trial court s
determinations are supported by the record. That record does not show that the officer extended his detention of
Appellant any longer than was necessary to complete writing Appellant a warning.
We should consider the matter of Appellant s apparent voluntary consent to search, and if necessary, consider
Appellant s other issue. Because the Court does otherwise, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed May 12, 2004
Publish
[CR25]
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