Reversing the Tenth Texas Court of Appeals this week, the Court of Criminal Appeals ruled that the appellate court erred in determining a search of Anibal Montanez's vehicle by the Deep East Texas Narcotics Task Force was not "voluntary" because Montanez could not speak English. Instead, declared the CCA majority, appellate judges are obligated to give "almost total deference" to trial judges as finders of fact - in this case, even when interpreting events they can see for themselves captured on videotape. Here's the majority opinion. Three CCA members dissented including Judge Lawrence Meyers, who wrote:
The issue in this case is identical to the issue we unanimously ruled on in Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000). The court of appeals did not err by failing to apply a Guzman standard of review because there is no issue of credibility and demeanor of the witnesses in this case. This is not a review of a cold record, rather it is the court of appeals watching the exact same videotape that the trial judge watched and then holding that the trial judge made an incorrect ruling. The trial judge was not in a better position to review the evidence as he would be in a situation of live testimony.Well, that's a nice sentiment but apparently we can blind ourselves to the evidence - at least a majority on Texas' highest criminal court could. The Texas Constitution requires the state to demonstrate through "clear and convincing" evidence that consent was voluntary - but that doesn't mean much when judges can be convinced even when the driver doesn't speak English.
In a situation such as the one before us, when the appellate court has the exact same quality of evidence before it on review that the trial judge had before him in a suppression hearing, it is not necessary to view the evidence in the light most favorable to the trial court, and it is not necessary to give almost total deference to the decision of the trial judge. Satisfying a burden of proof necessarily involves weighing evidence. For a preponderance of the evidence, any evidence that tips the scales is sufficient. For evidence to be clear and convincing, it must be "highly probable or reasonably certain." (3) And, as we all know, the highest burden is beyond a reasonable doubt.
As we stated in Carmouche, "the nature of the evidence presented in the videotape does not pivot 'on an evaluation of credibility and demeanor.' Rather, the videotape presents indisputable visual evidence contradicting essential portions of [the officer's] testimony. In these narrow circumstances, we cannot blind ourselves to the videotape evidence simply because [the officer's] testimony may, by itself, be read to support the. . .holding." 10 S.W.3d at 332.
The ruling comes at a time of growing public concern over abusive search practices at Texas traffic stops. The Legislature last year passed SB 1195 which would have required police to obtain written or recorded consent to perform searches at traffic stops without probable cause, but Gov. Perry vetoed the measure.