            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-1873-11



                                   THE STATE OF TEXAS

                                                 v.

                                CARLOS ESPARZA, Appellee

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

               M EYERS, J., filed a dissenting opinion.

                                   DISSENTING OPINION

       In its findings of fact and conclusions of law, the trial court found, “The State

failed to present any testimony regarding the breath-test results; therefore, those results

were suppressed by the Court.” The State argued on appeal that the trial court abused its

discretion because the State did not have the burden of production. The court of appeals

found no theory of law to support the trial court’s order.1 The court of appeals and the


       1
        The court of appeals reiterated the axiom in our appellate law that the appeals court
should affirm the judge’s ruling if it can be justified on any other theory of law. See Hailey v.
                                                                         Esparza Dissent–Page 2

majority specifically reject Appellee’s argument that his pretrial motion to suppress

challenged the scientific reliability of the breath-test results. The majority states that the

Appellee argued that the evidence should be excluded as illegally obtained but did not

argue that it should be excluded as scientifically unreliable and inadmissible. If Appellee

had so argued, then the burden of production would have been on the State. The majority

says that the absence of evidence could be a reason for a trial judge to deny a motion to

suppress but it is not a valid reason to grant the motion. I disagree. The defendant’s

motion to suppress asked the judge to review the lawfulness of the detention and the

breath-test evidence. Appellee was not required to cite rules of evidence, which do not

apply at suppression hearings, in order for the judge to review the requested breath-test

results. See Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002).2 It is clear

from the record that the trial judge understood the defendant’s request to review the

reliability and admissibility of the breath-test evidence, but the fact is that the State did

not present any evidence at all related to the breath test. After the arresting officer

testified at the hearing, the judge asked the State to call its next witness and the State said

it was “pretty much done.” The judge asked the State two more times to call a witness.



State, 87 S.W.3d 118 (Tex. Crim. App. 2002). We actually abandoned this line of reasoning in
Judge Alcala’s opinion in State v. Copeland, 399 S.W.3d 159 (Tex. Crim. App. 2013).
Apparently the courts of appeals are no longer supposed to try to affirm cases on some other
grounds.
       2
         Obviously the majority relies on Rule of Evidence 703 to justify the decision in this
case. Apparently the majority has overruled Granados and the Rules of Evidence do now apply
to suppression hearings.
                                                                      Esparza Dissent–Page 3

At that point it was clear that the State had nothing to show the court concerning the

reliability of the breath test. Because nothing was provided for the judge to review, he

was certainly within his discretion to suppress this evidence.

       In its findings and conclusions, the trial court determined that Appellee was

lawfully detained, but because the State failed to present evidence regarding the breath

test, the trial judge granted the defendant’s motion to suppress. The trial judge did not

abuse his discretion in suppressing evidence that the State failed to produce at the hearing

and therefore I would reverse the court of appeals and affirm the ruling of the trial court.




Filed: October 30, 2013

Publish
