               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS

                                NO. PD-0324-17


                             THE STATE OF TEXAS

                                           v.

               ROGER ANTHONY MARTINEZ, Appellant

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

     N EWELL, J., filed a concurring opinion in which K ELLER, P.J.,
H ERVEY and R ICHARDSON, JJ., joined.

      We initially remanded this case to the trial court because the trial

court did not make factual determinations regarding the dispositive

issues.1   A plurality of the Court also signaled to the trial court that it




      1
        State v. Martinez, No. PD-1337-15, 2016 W L 7234085, at *7 (Tex. Crim . App. Dec.
14, 2016) (plurality op.) (not designated for publication).
                                                              Martinez Concurring – 2

could infer probable cause based upon circumstantial evidence.2 Yet, in

its new findings, the trial court refused to make those inferences. Now,

instead of deferring to the findings we remanded for, we reverse under

the doctrine of collective knowledge. I agree with the holding, and join

the Court’s opinion. I write separately to question why we remanded in

the first place.

       When the Court originally remanded this case, I thought it was

inappropriate for the plurality to address the issue of whether probable

cause could be based upon the circumstantial evidence before we had

obtained dispositive findings.3 Now it is clear that addressing the issue

was wrong because it was unnecessary.4                    It is equally clear that our

precedent requiring a remand for “necessary” findings provides an

incentive for reviewing courts to micro-manage trial courts rather than

defer to their findings.5 The requirement that trial courts enter findings

       2
           Id. at *8 n.13.

       3
           Id. at *8 (Newell, J., concurring).

       4
          Rather than determ ine whether the arresting officer was aware of circum stantial
evidence supporting a determ ination of intoxication, the Court’s opinion m akes clear that it
doesn’t m atter what the arresting officer was aware of. The collective knowledge of all the
officers involved provided specific facts supporting probable cause to believe that Appellant
was intoxicated. Rather than virtue-signal to the trial court how we wanted it to analyze the
case on rem and, we should have viewed the evidence in a light m ost favorable to the trial
court’s ruling and held in the first instance that there was probable cause to arrest based
upon the collective knowledge of all the officers involved.

       5
           Id. at *9 (Newell, J., concurring).
                                                                 Martinez Concurring – 3

and conclusions upon request is self-inflicted.6 So is the requirement that

a reviewing court remand to the trial court for new findings when the

reviewing court determines the existing findings are inadequate.7 This

case is a good example of the trouble that our chosen approach can

cause.

       We should reconsider our holding in State v. Elias. 8                       Instead of

remanding when a reviewing court determines that existing findings are

inadequate, we should remand for “essential” findings only if there was

some objection in the trial court regarding the inadequacy of the existing

findings. If there wasn’t, we should fall back on our standard in State v.

Ross and simply view the evidence in the light most favorable to the trial

court’s ruling.9         We already do that when the parties fail to request

findings altogether.10 I see no reason we shouldn’t do so when they fail




       6
            State v. Cullen, 195 S.W .3d 696, 699 (Tex. Crim . App. 2006).

       7
         State v. Elias, 339 S.W .3d 667, 676 (Tex. Crim . App. 2011) (holding that the
court of appeals was required to rem and to the trial court for additional, specific findings of
fact to address a dispositive issue not addressed in the existing findings).

       8
            Id.

       9
            See State v. Ross, 32 S.W .3d 853, 856 (Tex. Crim . App. 2000).

       10
         Cullen, 195 S.W .3d at 699 (noting that the standard set out in State v.
Ross controls when the non-prevailing party fails to m ake a request of findings and
conclusions).
                                                              Martinez Concurring – 4

to draw the trial court’s attention to problems with the findings it enters.11

       With these thoughts, I join the Court’s opinion.

Filed: January 9, 2019

Publish




       11
         See Elias, 339 S.W.3d at 680 (Keller, P.J., concurring) (“There is nothing unfair or
unusual about requiring a party to object in a tim ely m anner to what it finds
objectionable.”).
