









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0894-04



ANIBAL MONTANEZ, Appellant


v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS

ANGELINA  COUNTY



 Johnson, J., filed a dissenting opinion.

D I S S E N T I N G   O P I N I O N


	Our case law is replete with examples of the proper standard of review on issues that are not
reliant upon a determination of credibility.  Just six years ago, in Carmouche v. State, 10 S.W.3d 323
(Tex. Crim. App. 2000), we declined to give almost total deference to the determinations of
historical fact by the trial court because "the nature of the evidence in the videotape does not pivot
on an evaluation of credibility and demeanor."  Carmouche at 332.  
	From 1981, the time at which the courts of civil appeals became courts of appeals and this
Court became a true high court, until 1997, the standard for deference to the findings of trial courts
on fact questions was "great deference." (1)
 The first appearance of "almost total deference" appeared
in Presiding Judge McCormick's concurring opinion in Yarborough v. State, 947 S.W.2d 892 (Tex.
Crim. App. 1997), in which he said, "I believe that we should trust the trial courts to do their job
fairly and announce a rule that the appellate courts in this State should show almost total deference
to a trial court's ruling on a Batson v. Kentucky claim since the trial court and not the appellate courts
are in the best position to make the call." Id. at 897. (McCormick, P.J., concurring.)  In Joe Rivera
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), Presiding Judge McCormick announced
just such a rule saying, "However, as a general rule, the appellate court, including this Court, should
afford almost total deference to a trial court's determinations of the historical facts that the record
supports especially when the trial court's fact findings are based on an evaluation of credibility and
demeanor. . . . The appellate courts, including this Court, should afford the same amount of
deference to trial courts' rulings on 'applications of law to fact questions,' also known as 'mixed
questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of
credibility and demeanor."  Id. at 89.  The opinion also cited to Judge McCormick's concurring
opinion in Villareal v. State, 935 S.W.2d  134, 139 (Tex. Crim. App. 1996)("amount of deference
appellate courts afford trial courts' rulings turns on which 'judicial actor is better positioned' to
decide the issue in question").  Joe Rivera Guzman thus set out a narrow rule: almost total deference
on questions of fact that turn on credibility or demeanor.  However, the only authority cited for that
proposition was Presiding Judge McCormick's concurring opinion in Villareal.
	Since 1981, 127 opinions from this Court have used the term "great deference" in various
contexts, 94 before Joe Rivera Guzman and 33 after it.
	I note that Anderson v. Bessemer City, 470 U.S. 564 (1985), on which the majority relies, 
is a federal civil case and thus is subject to very different rules and standards of proof and review. 
See, e.g., Manzi v. State, 88 S.W.3d 240, 245 (Womack, J., concurring)("The Supreme Court
decision in Anderson v. Bessemer City, on which the Court relies today, is inadequate to resolve the
issue for us because we do not have the rule of procedure that the federal courts do.  Anderson
construed a rule.   The decision to defer to findings of fact that are based on documentary evidence,
rather than to find the facts de novo, was made when the rules [sic] was adopted, not in Anderson.") 
	Anderson is also now more than twenty years old and predates many of our decisions on what
deference is due to lower courts.  It has been cited in only fourteen opinions, eleven of which were
published.  Of those eleven opinions, one was a concurring opinion, and eight cited Anderson in
support of rulings on Batson claims, an issue that clearly involves determination of credibility and,
especially,  demeanor.  One of the remaining two opinions, Kelly v. State, 163 S.W.3d 722 (Tex.
Crim. App. 2005), concerned a motion for speedy trial and addressed only the issue of the proper
degree of deference to the trial court as to inferences drawn from undisputed facts.  Id. at 726.  In the
other remaining opinion, Manzi, the issue was the level of deference to be afforded rulings made
only on the basis of affidavits.  The Manzi majority asserted that Benito Guzman v. State, 85 S.W.3d
242 (Tex. Crim. App. 2005), a Batson case, relied "heavily" on United States Supreme Court
precedent, then cited Anderson and quoted a section from it, emphasizing that deference is due when
the findings are not based on credibility, "but are based instead on physical or documentary evidence
or inferences from other facts."  Id.  (Italics in original.)  
	The Manzi majority also stated that "[Benito] Guzman did not purport to hold that historical
fact issues could be reviewed de novo if credibility and demeanor considerations were absent." 
Manzi at 243.  But as Judge Womack noted in his concurrence, "it is also true that [Benito Guzman]
did not purport to hold that the same standard of almost total deference should apply when credibility
and demeanor considerations were absent."  Id. at 248 (Womack, J. concurring).  Indeed, the
standard used by the Supreme Court in Anderson was "clearly erroneous," (2) a far cry from "almost
total deference."
	The Manzi majority noted that "the fact remains that it is traditionally the role of the trial
court to resolve issues of historical fact, whether or not credibility and demeanor determinations are
involved."  Id.  Resolution of fact issues is indeed one of the traditional roles of a trial court, but that
is not to say that appellate review of the execution of such traditional roles is barred or inappropriate. 
Indeed, almost everything a trial court does is subject to appellate review; under some standard,
whether "almost total deference" or de novo.   
	A high degree of deference to determinations of fact issues based on affidavits may be
appropriate, as the trial court is well acquainted with the circumstances and may be acquainted with
one or more of the affiants, either personally or by reputation.  Credibility may also be judged by
both internal and external consistency of the statements in an affidavit.  Some hint of "demeanor"
may be gleaned from the language and tone. (3)  Videotapes are a different matter; they are what they
are.  An appellate "judicial actor' is in no worse position to determine fact issues presented by the
tape than is a trial court. 
	While some degree of deference is due, we do not owe "almost total" deference to a lower
court's finding that is based on matters that rely not at all on credibility or demeanor.  I believe that
we should return unequivocally to the standard of "great deference." As the United States Supreme
Court said in Anderson, "This is not to suggest that the trial judge may insulate his findings from
review by denominating them credibility determinations, for factors other than demeanor and
inflection go into the decision whether or not to believe a witness.  Documents or objective evidence
may contradict the witness' story; or the story itself may be so internally inconsistent or implausible
on its face that a reasonable fact finder would not credit it. Where such factors are present, the court
of appeals may well find clear error even in a finding purportedly based on a credibility
determination."   Id. at 575.  
	I respectfully dissent.

Filed: April 26, 2006

Publish
1.  See, e.g., Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005); Kothe v. State, 152 S.W.3d 54 (Tex.
Crim. App. 2004); Gibson v. State, 144 S.W.3d 530 (Tex. Crim. App. 2004); Swearingen v. State, 143 S.W.3d 808
(Tex. Crim. App. 2004); Hanks v. State, 137 S.W.3d 668 (Tex. Crim. App. 2004); Laney v. State, 117 S.W.3d 854
(Tex. Crim. App. 2003); Guajardo v. State, 109 S.W.3d 456 (Tex. Crim. App. 2003); Swearingen v. State, 101
S.W.3d 89 (Tex. Crim. App. 2003); Herron v. State, 86 S.W.3d 621 (Tex. Crim. App. 2002); Corbin v. State, 85
S.W.3d 272 (Tex. Crim. App. 2002); State v. Scheineman, 77 S.W.3d 810 (Tex. Crim. App. 2002); Johnson v. State,
68 S.W.3d 644 (Tex. Crim. App. 2002); Roquemore v. State, 60 S.W.3d 862 (Tex. Crim. App. 2001); Villareal v.
State, 935 S.W.2d 134 (Tex. Crim. App. 1996); State v. Carter, 915 S.W.2d 501 (Tex.. Crim. App. 1996); Vargas v.
State, 838 S.W.2d 552 (Tex. Crim. App. 1992); Young v. State, 826 S.W.2d 141 (Tex. Crim. App. 1991); Miller-El
v. State, 748 S.W.2d 459 (Tex. Crim. App. 1988); Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987).  
2.  "Where there are two permissible views of the evidence, the fact finder's choice between them cannot be
clearly erroneous.  . . .  Rule 52(a) . . . states straightforwardly that 'findings of fact shall not be set aside unless
clearly erroneous.'"  Anderson v. City of Bessemer, 470 U.S. 564, 573-574.
3.  See, e.g., Kelly v. State, 163 S.W.3d 722, 726-27 (Tex. Crim. App. 2002)("Moreover, the trial judge's
personal knowledge of the parties and the sequence of events do in fact place him in a better position to draw
inferences than an appellate court without such familiarity.").
