            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         NO. PD-0486-10


                            THOMAS PAUL TUCKER, Appellant

                                                 v.

                                    THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FOURTH COURT OF APPEALS
                              KERR COUNTY
       .



       A LCALA, J., filed a concurring opinion in which K ELLER, P.J., joined.

                                   CONCURRING OPINION

       I respectfully concur. The majority opinion reverses the conviction of appellant,

Thomas Paul Tucker, for possession of marijuana. I agree that the judgment should be

reversed and the case remanded to the court of appeals. I write separately because I reach

this conclusion by employing a different analysis than the majority opinion.

           In his sole issue, appellant contends that the court of appeals “erred in upholding the

trial court’s implicit finding that petitioner’s consent to the search of his residence was
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voluntary.” I conclude that the court of appeals did properly articulate that the deferential

standard of review in Guzman v. State applied to the trial court’s determination of historical

facts. See Montanez v. State, 195 S.W.3d 101, 108 (Tex. Crim. App. 2006) (citing Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). The court of appeals erred, however,

by not examining the totality of the evidence and by not issuing an opinion that addresses all

of the issues necessary to final disposition of the appeal. See Guzman, 955 S.W.2d at 89

(courts must consider totality of evidence in record); T EX. R. A PP. P. 47.1 (court of appeals

must hand down written opinion “that addresses every issue raised and necessary to final

disposition of the appeal”); Keehn v. State, 233 S.W.3d 348, 349 (Tex. Crim. App. 2007) (per

curiam).

       Nothing in the court of appeals’s opinion addresses the videotape that was admitted

into evidence at the suppression hearing. In addition to the testimony of witnesses to an

event, a videotape of the events as they transpired can often be a critical piece of evidence

of an event. Therefore, the court of appeals’s opinion should have at least mentioned whether

the tape has any evidentiary value in this case. As with testimonial evidence, this Court has

determined that the deferential standard of review applies to a trial court’s determination of

historical facts when that determination is based on a videotape recording. See Montanez,

195 S.W.3d at 109. Appellate courts defer to those determinations because of the

“‘superiority of a trial judge’s position to make determinations of credibility’” and the need

for a single fact finder to avoid costly and unnecessary “‘[d]uplication of the trial judge’s
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efforts in the court of appeals[.]’” Manzi v. State, 88 S.W.3d 240, 243-44 (Tex. Crim. App.

2002) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574-75 (1985)). Appellate courts,

therefore, must defer to trial courts’ factual findings, whether those findings are express or,

as here, implied and whether the evidence is in the form of testimony, videotape, or anything

else. See id.; Montanez, 195 S.W.3d at 109.

       Deference to the trial court’s factual findings, however, does not mean that an

appellate court must accept findings, whether express or implied, that are not supported by

the record when viewed in a light most favorable to the trial court’s ruling. See Carmouche

v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (declining to defer to trial court’s ruling

where indisputable visual evidence contradicted implied findings of fact). This does not

mean that the appellate court is conducting a de novo review. “De novo” means that an

appellate court affords no deference to the lower court’s determination and the appellate

court considers the matter as if it was the court of first instance. See B LACK’S L AW

D ICTIONARY 864 (2004) (defining “de novo judicial review” as “nondeferential”). Rather,

the appellate court upholds the trial court’s express or implied findings as long as an

examination of the totality of the record, viewed in a light favorable to the trial court’s ruling,

supports them. See Guzman, 955 S.W.2d at 89. When there are factual disputes regarding

testimony or the contents of a videotape, the trial court’s findings of historical fact are

afforded almost total deference. See id. But when evidence is conclusive, such as a written
                                                                                            Tucker - 4

and signed agreed stipulation of evidence or “indisputable visual evidence,” 1 then any trial-

court findings inconsistent with that conclusive evidence may be disregarded as unsupported

by the record, even when that record is viewed in a light most favorable to the trial court’s

ruling. See Carmouche, 10 S.W.3d at 332. Whether the trial court’s findings are disregarded

as inconsistent with the record or accepted as supported by the record, the court of appeals

must examine the totality of the evidence in the record and must conduct that examination

in a light most favorable to the trial court’s rulings. See Montanez, 195 S.W.3d at 108;

Carmouche, 10 S.W.3d at 332; Guzman, 955 S.W.2d at 89.

       At first blush, the present case presents a twist in that the trial court apparently did not

watch or consider the videotape evidence. Although not raised in this appeal, an appellant


1
        Rarely will videotape evidence actually be “indisputable.” Audio and video recordings can
be conclusive as to what and how events transpired, but their evidentiary value often depends on
other factors, even when that evidence captures events as they are transpiring. The clarity of the
video is often dependent on the lighting, angle or focus of the camera, or the camera’s distance from
the object recorded. The audio may be inaudible due to the tone of the speaker, static, or other
background noise. Audiotapes and videotapes can be falsified or altered with different voices or
features, and the identity of the people in a video can be unclear. Furthermore, the fact finder
observing the videotape would have to interpret what the footage shows with respect to the tone of
the speakers, the attitudes of the participants, and any other pertinent matters that might assist in
understanding the events.

        Even here, where the parties seem to agree as to the events that transpired, the parties dispute
the contents of the videotape. In its reply to appellant’s petition for discretionary review, the State
“stipulates to the Petitioner’s description of the video with the following exceptions” and then lists
the exceptions. The record also shows that portions of the videotape lack clarity. Moreover, the mere
fact that appellant states, on the videotape, that he is concerned for his child’s welfare does not
necessarily establish the veracity of the statement. Perhaps a fact finder viewing the videotape could
determine, for example, either that the appellant was feigning concern for his child to avoid
discovery of the marijuana or that the police officer’s conduct was coercive. These are
determinations properly left to the trial court as the fact finder. See Anderson v. Bessemer City, 470
U.S. 564, 574-75 (1985).
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could raise an appellate issue that challenges the trial court’s refusal to consider evidence.

But this appellant has not raised that issue. The appellate court must, therefore, restrict its

review to the voluntariness of the search based on all the evidence admitted at the hearing.

       With these comments, I respectfully concur in the Court’s judgment remanding the

case to the court of appeals.

                                                   Alcala, J.

Filed: June 20, 2012

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