           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1540-07



                      GARLAND JEROME VENNUS, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE THIRTEENTH COURT OF APPEALS
                            HARRIS COUNTY

              Meyers, J., filed a dissenting opinion.

                                DISSENTING OPINION

       The State’s Petition for Discretionary Review reflects a fundamental

misconception of the mechanics and legalities of a pretrial suppression hearing.

Unfortunately, the State shows an even greater misunderstanding of the role of the court

of appeals in appellate review of the hearing. However, I do admire its powers of

persuasion in inducing the majority to not only rescue the State from its ignorance, but to

have this Court expand the scope of review of the courts of appeals in dealing with their
                                                                         Vennus dissent–Page 2

analyses of suppression hearings.

       In this Petition for Discretionary Review, the State’s position is presented as such:

“the court below erroneously failed to hold [A]ppellant estopped from complaining that

the trial court abused its discretion by denying his motion to suppress.” 1 What this

statement basically presumes is that the court of appeals’s authority extended to a review

of the logistics of admissibility and preclusion of the evidence the trial court accumulated

at the suppression hearing. This is simply not the case.

       A legal sufficiency review has always been (up until now) limited to what

evidence the fact-finder relied upon: “an appellate court’s review of the record itself is

generally limited to the evidence before the trial court at the time of the trial court’s

ruling.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). We may not

expand the record to make the officers’ testimony sufficient by imagining what the State

could have shown; and, we “may not re-evaluate the weight and credibility of the record

evidence and thereby substitute our judgment for that of the fact-finder.” Dewberry v.

State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

       Unfortunately, the State did not appreciate the tremendous advantage offered it in

suppression hearings–the Rules of Evidence do not apply. See T EX. R. E VID. 104(a);

Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002). Apparently the

suppression hearing herein was conducted by observing all of the traditional rules



       1
           See State’s Petition for Discretionary Review at 11.
                                                                        Vennus dissent–Page 3

applicable to a trial.

       But the crux of the State’s Petition for Discretionary Review is its argument that

the court of appeals erred in not recognizing estoppel based on some concept of invited

error. While I see a lot of what is considered invited error in the record, I only see the

State sending out invitations. It must be remembered that courts of appeals do not review

anything but the evidence supporting the trial judge’s ruling. The State’s brief to the

court of appeals tells it best:

       The scope of review of a trial court’s evidentiary ruling at a hearing on a
       motion to suppress evidence is ordinarily the evidence before the trial court at
       the time of the ruling. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.
       2002); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)
       (appellate court must review the trial court’s ruling in light of what was before
       the trial court at the time the ruling was made); Hoyos v. State, 982 S.W.2d
       419, 422 (Tex. Crim. App. 1998); Hardesty v. State, 667 S.W.2d 130, 133 n.
       6 (Tex Crim. App. 1984).2

       It is convenient that the majority can evade the limitations of review and

hypothesize with such certainty what could-have-been for the State. As the State

concedes, the morsels of information in the record do not amount to reasonable suspicion.

Based upon the record alone, I would affirm the court of appeals. Therefore, I

respectfully dissent.

                                                                 Meyers, J.

Filed: April 22, 2009

Publish

       2
           See State’s Appellate Brief at 9.
