

 
            This opinion has been withdrawn per order of the
Tenth Court of Appeals.


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IN THE
TENTH COURT OF APPEALS










 

No. 10-04-00345-CR
 
ANTONIO SERRANA,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the County Court at Law No.
2
Johnson County, Texas
Trial Court No. M200301848
 

CONCURRING  Opinion





 
          The discussion of Tarvin in the
majority opinion will be difficult for many readers to reconcile, creating
confusion and chaos, and could be considered misleading if it is not properly
explained.  State v. Tarvin, 972 S.W.2d 910 (Tex. App.—Waco 1998, pet.
ref’d).  Tarvin is not a particularly good case to discuss in this
opinion because the holding of Tarvin was based on a motion to suppress
that was granted as distinguished from those cases in which a motion to
suppress has been denied.  This distinction makes all the difference in the
world. 
          This distinction is probably why
neither Serrana nor the State cite Tarvin in their briefs.  The analysis
that applies to the facts when a motion to suppress has been granted versus
when the motion has been denied is the same.  The distinction between Tarvin
and the other cases is not about the facts; but rather, it is about the related
standard of review of the trial court’s ruling.  Thus, the “facts” of the two
cases could be identically the same, in the cold appellate record, and we could
have two different results.  And based upon the applicable standard of review,
both decisions could be properly affirmed.  Because we are reviewing issues on
which the trial court had to evaluate credibility of the witnesses, our
standard of review is an abuse of discretion.
          This confusion could easily be avoided
if we simply stayed focused on the issues and addressed the parties’ arguments
under the proper analysis related to motions to suppress that have been
denied.  Tarvin is just not good precedent for a fact-intensive
discussion on this issue.  It does not fit the analysis that is appropriate for
this case.
          Notwithstanding the confusion created
by the Court’s effort to compare the facts in Tarvin with the facts of
this case, the majority does get to the correct result.  Accordingly, I concur
in the judgment affirming the decision of the trial court to deny the motion to
suppress and thus affirming the trial court’s judgment.
 
                                                          TOM
GRAY
                                                          Chief
Justice
 
Concurring
opinion delivered and filed February 15, 2006 

