          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. PD-1000-11



                                THE STATE OF TEXAS

                                             v.

                          VANESSA M. MENDOZA, Appellee



         ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE EIGHTH COURT OF APPEALS
                         EL PASO COUNTY

       C OCHRAN, J., delivered the opinion of the Court, in which M EYERS, P RICE,
W OMACK, J OHNSON, K EASLER, H ERVEY, and A LCALA, JJ., joined. K ELLER, P.J.,
dissented.

                                       OPINION


       A police officer stopped appellee, Vanessa Mendoza, and arrested her for driving

while intoxicated. The trial judge granted appellee’s motion to suppress, concluding that the

officer lacked reasonable suspicion to make his traffic stop. The State appealed that ruling

and requested written findings of fact and conclusions of law. Based upon the judge’s
                                                                                 Mendoza      Page 2

written factual findings, the court of appeals inferred that the judge must have believed the

officer’s testimony–testimony that was in some conflict with the dash-cam video recording.

The court of appeals reasoned that, if the trial judge fully credited the officer’s testimony,

then her legal conclusion that the officer did not have reasonable suspicion to stop appellee’s

car was incorrect.1 We granted appellee’s petition to review whether the court of appeals

deferred sufficiently to the trial court’s factual findings.2 We agree with appellee that

reviewing courts should not make implied findings of fact and credibility determinations that

are contrary to the trial judge’s ultimate ruling. But because the written findings in this case

are ambiguous and there is no credibility determination, we remand this case to the court of

appeals with instructions to abate the case to the trial judge for supplemental findings.

                                                 I.

       The trial judge held an evidentiary hearing on appellee’s motion to suppress, in which

Officer Davila was the only witness. He testified that he saw Ms. Mendoza’s car “ahead of

[him] at a distance [and she] appeared to be traveling at a high rate of speed.” He started to

pace her car and turned on his dash-cam video recorder, but by then she had slowed down

and maintained her speed below the posted speed limit. Officer Davila followed Ms.

Mendoza’s car–driving downhill and around curves–from about the 5500 block of Mesa


       1
       State v. Mendoza, No. 08-09-00175-CR, 2011 WL 1157691, at *3 (Tex. App.–El Paso
March 30, 2011) (not designated for publication).
       2
         Appellee’s sole ground for review reads: “The court of appeals disregarded the standard
of review that requires it to uphold the trial court’s ruling so long as the trial court’s ruling is
supported by the record and is correct under some theory of law applicable to the case.”
                                                                            Mendoza      Page 3

Street to the 4100 block of Mesa Street. He testified that Ms. Mendoza weaved within her

lane, braked as she went downhill around the curves, and, at one point, veered a “little bit”

towards the right, where another car was traveling several car lengths ahead. On cross-

examination, the officer agreed that Ms. Mendoza had not committed any traffic offense and

that his purpose in stopping her was to do “a safety check on her to make sure she was okay.”

The trial judge watched the dash-cam video of the incident as Officer Davila testified that

nothing on that video showed Ms. Mendoza commit any traffic offense.3 After taking the

matter under advisement, the trial judge granted Ms. Mendoza’s motion and filed the

following findings of fact and conclusions of law:

                                  FINDINGS OF FACT

1.     On January 29th, 2008, Officer Enrique Davila observed the defendant,
       Vanessa M. Mendoza, driving southbound around the 5500 or 5100 block of
       Mesa Street at about 2:28 a.m.

2.     Officer Davila believed the defendant was going at a high rate of speed but did
       not ascertain the vehicle’s speed by radar or by pacing the vehicle.

3.     Officer Davila noticed the defendant’s vehicle weaving within its lane a few
       times, the defendant was traveling on the far left lane of Mesa Street.

4.     Officer Davila stated that the defendant’s car would continuously slow down
       and brake. The video depicts Mesa Street as a roadway going downhill with
       several curves.

5.     When approaching the intersection of Executive Center Blvd. and Mesa Street,
       Officer Davila felt that the defendant’s car was going to hit another vehicle
       because it veered to the right. There was no testimony indicating if the

       3
         We requested a supplemental record containing the dash-cam video recording, as it was
not in the record on direct appeal.
                                                                                Mendoza      Page 4

       defendant’s car weaved out of her lane. There was no testimony about the
       proximity of the other car. The video shows a vehicle about two or three car
       lengths in front of defendant’s vehicle traveling on the far right lane.

6.     Officer Davila testified that he stopped the defendant because she weaved
       within a lane a few times, veered to the right and braked erratically.

                                  CONCLUSIONS OF LAW

       The Court finds that the facts of this case, (as seen on the video and the
       testimony of Officer Davila) did not justify a stop of the defendant’s vehicle
       and do not provide the police officer with sufficient reasonable suspicion to
       believe that the defendant was intoxicated.

       The court of appeals held that the trial judge’s legal conclusion did not follow from

her factual findings, because it inferred that the trial judge’s explicit findings created an

implied finding that she believed the officer’s version of events.4 After assuming that the

trial judge must have believed the officer, the appeals court found that the State’s version of

events constituted reasonable suspicion.5 If the trial judge fully credited all of Officer

Davila’s testimony and the logical inferences that flow from his testimony, then the officer

did have reasonable suspicion to stop Ms. Mendoza’s car. However, in both her factual

findings and legal conclusion, the trial judge also referred to the video recording, and that

video is not entirely consistent with Officer Davila’s testimony. The problem with these

factual findings is that they are ambiguous and do not contain any credibility determinations.



       4
          Mendoza, 2011 WL 1157691, at *3 (“In this instance, the trial court’s findings of fact
identify the individual actions that preceded the detention, as articulated by Officer Davila.”).
       5
         Id. (“[T]he trial court’s conclusion that reasonable suspicion was lacking, based on its
limited view of the circumstances, was in error.”).
                                                                                 Mendoza      Page 5

                                                 II.

       In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of the

weight and credibility of the evidence.6 In reviewing the ruling on a motion to suppress,

appellate courts must give almost total deference to a trial judge’s findings of historical fact

and credibility determinations.7 First, “the trial judge is ‘Johnny-on-the-Spot,’ personally

able to see and hear the witnesses testify.”8 Second, “[t]he trial judge’s major role is the

determination of fact, and with experience in fulfilling that role comes expertise.” 9 Third,

appellate courts that duplicate the trial judge’s factfinding role likely contribute only

marginally to accuracy while diverting large amounts of scarce judicial resources.10 And,

finally,


       6
         State v. Ballard, 987 S.W.2d 889, 891 & n.2 (Tex. Crim. App. 1999) (noting that,
because the officer testified in “an evasive and self-contradicting manner,” the trial judge as “the
sole arbiter of witness credibility and the proper weight to give testimony,” could properly
disregard that testimony entirely).
       7
           Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
       8
            Manzi v. State, 88 S.W.3d 240, 254 (Tex. Crim. App. 2002) (Cochran, J., concurring)
(citing Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (explaining requirement that
reviewing courts must defer to trial court findings of fact unless they are clearly erroneous and
noting that “only the trial judge can be aware of the variations in demeanor and tone of voice that
bear so heavily on the listener’s understanding of and belief in what is said”); and Boyd v. Boyd,
169 N.E. 632, 634 (N.Y. 1930) (“Face to face with living witnesses the original trier of the facts
holds a position of advantage from which appellate judges are excluded. In doubtful cases the
exercise of his power of observation often proves the most accurate method of ascertaining the
truth. . . . How can we say the judge is wrong? We never saw the witnesses. . . . To the
sophistication and sagacity of the trial judge the law confides the duty of appraisal. . . . His was
the opportunity, the responsibility and the power to decide.”).
       9
           Anderson, 470 U.S. at 574.
       10
            Id. at 574-75.
                                                                               Mendoza    Page 6

       the parties to a case on appeal have already been forced to concentrate their
       energies and resources on persuading the trial judge that their account of the
       facts is the correct one; requiring them to persuade three more judges at the
       appellate level is requiring too much. . . . [T]he trial on the merits should be
       the “main event” . . . rather than a “tryout on the road.” 11

       A suppression ruling includes two types of trial-judge rulings; historical factual

findings, often based on credibility determinations12 (subject to abuse-of-discretion review),

and ultimate legal rulings that determine whether reasonable suspicion or probable cause

existed (subject to de novo review). The Supreme Court has explained that

    [t]he principal components of a determination of reasonable suspicion or probable
    cause will be the events which occurred leading up to the stop or search, and then
    the decision whether these historical facts, viewed from the standpoint of an
    objectively reasonable police officer, amount to reasonable suspicion or to probable
    cause. The first part of the analysis involves only a determination of historical facts,
    but the second is a mixed question of law and fact . . . [that] should be reviewed de
    novo on appeal. Having said this, we hasten to point out that a reviewing court
    should take care both to review findings of historical fact only for clear error and to
    give due weight to inferences drawn from those facts by [trial] judges[.]13

       But sometimes it is not clear precisely what historical facts a trial judge actually found

or what her credibility determinations were.         Because “there is no justification for us to

‘assume that the trial court made implicit findings of fact that support its ruling,’” we held,




       11
            Id. at 575 (some internal quotation marks omitted).
       12
          “[F]actual findings are who did what, when, where, how, or why. They also include
credibility determinations. They do not include legal rulings on ‘reasonable suspicion’ or
‘probable cause.’” State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008).
       13
           Ornelas v. United States, 517 U.S. 690, 696, 699 (1996); see also Guzman, 955 S.W.2d
at 87 (citing Ornelas with approval).
                                                                              Mendoza     Page 7

in State v. Cullen,14 that a trial judge, “upon the request of the losing party . . . must make

[on-the-record] findings of fact and conclusions of law adequate to provide an appellate

court” a basis for reviewing the ruling’s correctness.15 Thus, the losing party in a motion to

suppress hearing may require the trial judge to make explicit historical findings of fact and

credibility determinations. These may be either written out and signed by the judge or

dictated on the record.16 This rule has the salutary effect of ensuring that the appellate courts

will grant almost total deference to the trial judge’s findings of historical fact while

reviewing de novo the application of the law concerning probable cause or reasonable

suspicion to those historical facts.17

       Occasionally, the trial judge may make explicit findings that she considers sufficient

and dispositive of the historical facts, but the appellate court determines that those findings

are either ambiguous or insufficient to resolve the legal issue. For example, in State v.

Elias,18 the trial judge made written findings of fact and conclusions of law concerning a

motion to suppress, but those findings did not directly address the potentially “dispositive”

historical fact of whether the defendant “activated his turn signal within a hundred feet of the




       14
            195 S.W.3d 696 (Tex. Crim. App. 2006).
       15
            Id. at 698-99 (some internal quotation marks omitted).
       16
            Id. at 699-700.
       17
            See Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007)
       18
            339 S.W.3d 667 (Tex. Crim. App. 2011).
                                                                                Mendoza     Page 8

intersection.”19 One way of dealing with insufficient factual findings might be to revert to

our former Ross20 presumption that the trial judge made all possible implied findings of fact

that are supported by the record and consistent with her ultimate legal ruling.21 But, in Elias,

this Court decided that the more prudent course would be to remand the case to the trial judge

to make findings of fact with greater specificity if the original findings are insufficient to

resolve the legal question.22 In Elias, this Court continued the route it charted in Cullen to

ensure that reviewing courts need not presume, assume, or guess at what historical facts a

trial judge actually found when making a ruling in a motion to suppress hearing. In both

Cullen and Elias, this Court followed Judge Womack’s admonition in Ross to take steps

“toward the just resolution of these appeals—a resolution that is based on the reality of what

happened rather than on assumptions that may be entirely fictitious.” 23

                                                 III.

       In this case, the court of appeals began with the premise that the trial judge “implicitly

accept[ed] the State’s version of events and [found] the detaining officer’s testimony

credible,” thus “the only question remaining for this Court is to determine whether the trial



       19
            Id. at 676.
       20
            State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
       21
            See Elias, 339 S.W.3d at 680 (Keller, P.J., concurring).
       22
         Id. at 679 & n.37 (noting that if the trial judge again granted the defendant’s motion to
suppress based on its essential findings of fact, the State could once again appeal).
       23
            Ross, 32 S.W.3d at 859-60 (Womack, J., concurring).
                                                                             Mendoza     Page 9

court properly applied the law to those facts.” 24 If the trial judge fully credited Officer

Davila’s testimony that appellee was “weaving within the lane, braking erratically, and

drifting toward another vehicle,”25 then the court of appeals properly concluded that the

combination of these facts, “considered in the context of the time of night, the location, and

Officer Davila’s training and experience investigating DWI offenses, . . . provided a

reasonable basis for him to conclude Appellee was engaged in criminal activity.” 26

       But the trial judge’s written findings contain both “weasel words” and factual

juxtapositions that cast doubt on an implied finding that she fully credited Officer Davila’s

version of events.

       First, we look at the “weasel words.” The trial judge began her factual findings with

a strong verb: Officer Davila “observed” appellee driving. That is an historical fact; he saw

her drive. But then the judge stated that the officer “believed” appellee was speeding; he

“noticed” her weaving a few times; he “stated” that she would continuously slow down; he

“felt” that appellee’s car was going to hit another car; he “testified” that he stopped appellee

“because she weaved within a lane a few times, veered to the right and braked erratically.”

Clearly, the officer “testified” to those facts; any reviewing court can read the record and see

Officer Davila’s testimony, but did the trial judge believe that testimony?



       24
            Mendoza, 2011 WL 1157691, at *2.
       25
            Id. at *3.
       26
            Id.
                                                                            Mendoza     Page 10

       For example, in her second factual finding, the trial judge stated, “Officer Davila

believed the defendant was going at a high rate of speed[.]” If the trial judge fully credited

Officer Davila’s testimony that he believed appellee was speeding, why not state the

straightforward historical fact– “Officer Davila saw the defendant speeding.” Even if the

trial judge concluded that Officer Davila was factually incorrect about the historical fact–that

appellee was speeding–his testimony might still be credited if the judge concluded that

Officer Davila “reasonably believed” that she was speeding. It is the officer’s “reasonable

belief”–one that would be held by an objectively reasonable and prudent police officer– that

governs the question of reasonable suspicion or probable cause. But here, the trial judge did

not add the word “reasonably” to Officer Davila’s belief.

       In her final factual finding, the trial judge stated that Officer Davila “felt” that

appellee was going to hit another car because her car veered to the right. That is not an

historical fact, it is a subjective thought. If the trial judge concluded that Officer Davila

“reasonably felt” that appellee was going to hit another car, then that finding would provide

support for a legal conclusion of reasonable suspicion, but if the trial judge concluded that

Officer Davila did not have an objectively reasonable basis for his “feeling,” that finding

does not support a reasonable suspicion.

       In sum, these factual findings do not find many historical facts, nor do they find that

Officer Davila’s beliefs and feelings were objectively reasonable ones. They also contain

no credibility assessment of Officer Davila’s testimony.
                                                                            Mendoza     Page 11

       In addition, the trial judge also used a juxtaposition of phrases and facts that creates

more ambiguity in her findings. For example, in her second factual finding, the trial judge

states that “Officer Davila believed the defendant was going at a high rate of speed,” but she

then contrasts that phrase with the additional fact that he “did not ascertain the vehicle’s

speed by radar or by pacing the vehicle.” In her fourth finding, the trial judge notes, “Officer

Davila stated that the defendant’s car would continuously slow down and brake.” But she

immediately contrasts that statement with the further fact that “the video depicts Mesa Street

as a roadway going downhill with several curves.” And the video shows appellee braking

as she approaches each downhill curve and then taking her foot off the brake as she moves

into the curve. It is impossible to tell whether the trial judge considered appellee’s braking

“erratic” or appropriate or whether she concluded that Officer Davila’s statement was an

objectively reasonable one based on his perception or an objectively unreasonable one based

upon her viewing of the video. And, in the fifth finding, the trial judge noted that Officer

Davila “felt” that appellee’s car was going to hit another car “because it veered to the right.”

But that statement is immediately followed by a contrasting statement: “There was no

testimony indicating if defendant’s car weaved out of her lane. There was no testimony

about the proximity of the other car. The video shows a vehicle about two to three car

lengths in front of the defendant’s vehicle traveling in the far right lane.” Indeed, looking

at the video, it appears that appellee’s car was two lanes away from and several car lengths

behind the other car, but if the trial judge concluded that Officer Davila reasonably felt that
                                                                                 Mendoza      Page 12

appellee’s car did pose a danger to the other car, then that fact would support a finding of

reasonable suspicion.

       Finally, in her conclusion of law, the trial judge stated that “the facts of this case, (as

seen on the video and the testimony of Officer Davila) did not justify” the traffic stop. But

what does that mean? What actual historical facts did the trial judge find as opposed to what

Officer Davila testified to, believed, felt, and stated? And, if she based her findings more on

the video rather than Officer Davila’s testimony, it cannot necessarily be inferred that she

believed Officer Davila’s testimony to be entirely accurate and credible.27

       The written findings in this case could be construed to imply that the trial judge

believed Officer Davila was entirely reasonable and that she simply misapplied the law of

reasonable suspicion. If that were clearly the case, the court of appeals’s application of de

novo review was proper, and its ruling should stand.28 However, it is at least equally possible

that the trial judge made an implied credibility finding that supported her ruling, namely that

she disbelieved the officer or the reasonableness of his beliefs, feelings, and statements.




       27
           Our review of the video is more consistent with the trial judge’s qualifiers to the
officer’s testimony in the factual findings than with the officer’s testimony itself. In short, the
video puts into question the court of appeals’s implied finding that the trial judge believed the
officer. Of course, this court and all courts of appeals must apply “the deferential standard of
review . . . to a trial court’s determination of historical facts [even] when that determination is
based on a videotape recording admitted into evidence at a suppression hearing.” Montanez v.
State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006).
       28
          Crain v. State, 315 S.W.3d 43, 48-49 (Tex. Crim. App. 2010) (“We review de novo
whether the totality of circumstances is sufficient to support an officer’s reasonable suspicion of
criminal activity.”).
                                                                            Mendoza      Page 13

       However, we should not make either assumption, because either assumption could be

incorrect. Just as the trial judge was best positioned to evaluate the officer’s credibility at

the hearing, so she is in the best position to clarify her ambiguous factual findings and make

an explicit credibility determination. Those new findings should dispel any confusion about

precisely what historical facts the trial judge found and whether she found Officer Davila’s

beliefs and conclusions objectively reasonable, based on the historical facts. Presumably the

trial judge will then deny the motion to suppress if she accepts Officer Davila’s version of

the facts because the court of appeals correctly set out the applicable legal principles. And

presumably the trial judge will again grant the motion to suppress if she disbelieved Officer

Davila’s version or finds that he was objectively unreasonable in his factual beliefs and

conclusions. The losing party could once again appeal, but with more explicit factual

findings and credibility assessments, we anticipate that the trial judge will apply the pertinent

Fourth Amendment law as set out by the court of appeals to those facts.

       We remand this case to the court of appeals with instructions to abate it to the trial

court for further proceedings consistent with this opinion.

Delivered: May 9, 2012
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