*1 way majority’s agenda of the constructing II.
results favorable to the State. Because the ruling The trial court’s on a based de- majority apply prece- fails the controlling to clearly termination of the historical facts any in this thoughtful dent case without or record, supported by the based comprehensible position, analysis for its credibility evaluation of and demeanor. Therefore, obligation to has findings to
defer the trial court in ac- opinion cordance with this Court’s Guz- I. man, supra. Additionally, Pursuant to Tex.Rev.Civ. Ann. art. Stat. public policy encouraging offends 6701d, 39-47, appellee §§ suppress moved to cooperate individuals not to with authorities any police to statements that he made by pitting accident cooper- situations such during investigation their of the instant acci- against ation of one’s right the exercise judge appellee’s The trial granted dent. mo- against self-incrimination. suppress. only to judge tion Not is the trial majority ignores Because the precedent the sole trier of fact in a suppress motion to requires from this Court individuals hearing, judge the trial court is amake Hobson’s choice between the exercise credibility of the well witnesses as as the right being of their Fifth Amendment
weight testimony. given to be their Guz- offense, prosecuted for a misdemeanor I dis- findings 955 S.W.2d at If sent. filed, fact conclusions of law are not presume that the trial made the court find- J., OVERSTREET, joins opinion. ings necessary support ruling long so implied findings supported as those are Gusman,
the record.
As the trial did not file of fact law,
or conclusions of but rather his made
ruling orally, “findings the instant of fact” in “implied.” necessarily
this ease are clearly supports The record trial Wayne LOESCH, Appellant, David judge’s upon premise ruling decision to his that, 6701(d), finding pursuant to art. The STATE of Texas. appellee provided police information privileged. garding Article this accident was No. 814-96. 6701d, §§ 45 and 47 combined to Texas, of Criminal subject liability if appellee appel- to criminal En Banc. lee did not remain the scene of the acci- provide police dent and information Dec. However, investigating officers the accident. appellee about the information
accident, 6701d, pursuant police to art. gain incriminating in a infor-
were Appel- investigation.
mation for their DWI given prior warnings
lee was Miranda2 being police arrested for DWI. The officer charge investigation admitted investigation in- and the DWI accident
vestigation the extent “intertwined” investigation began,
that when the DWI progress. still in investigation
accident
Arizona,
(1966).
OPINION ON STATE’S FOR PETITION ATTORNEY’S REVIEW DISCRETIONARY KELLER, opinion of delivered the Judge, McCORMICK, Presiding Court, in which PRICE, MANSFIELD, Judge, and WOMACK, HOLLAND, Judges, joined. plea a of “no contest” Appellant entered on marijuana. complained He possession of refusing the trial court erred appeal that The suppress. grant his motion agreed and reversed. The State Appeals improp- that the contends a novo review standard erly applied de give rise to reasonable certain facts whether suspicion. The State also contends erred, even under a because viewed standard novo relating reasonable each isolation, instead of combina- suspicion in other. tion with each following factors were evaluated The determining whether the Court of exists: (1) roving A the area: Characteristics of stopped appellant’s vehicle patrol border beyond an along miles Highway several immigration checkpoint. agents Two testi- illegal smuggled are often fied that aliens area, they through frequently and that through around the check- walk the brush willing catch rides with point, and then the other drivers on side.
(2) two patrol The saw Drivers’ Behavior: bumper-to-bumper. Both riding vehicles staring rigid, nervous and drivers seemed straight patrol car shined ahead when the When the headlights at the vehicles. approached, one the vehicles patrol car sped up while the other slowed down— vehicles difficult. making pursuit both (3) Aspects The vehicles the cars: Houston, Bellows, Wice, Rober Brian tranks, large with were older cars question Rivers, appellant. Three aliens, illegal commonly smuggle used Horn, Jeffrey Atty., L. Van Asst. State’s down, if weighed cars looked and the Austin, Paul, Atty., for the Matthew States’s heavily they loaded.1 State. basically con of the historical ducted deferential cited factors. 1. Other factors were either or cumulative the above absent facts and de novo determination of court, whether the appropriate to the trial give those facts rise to reasonable
This review is consistent
our
with
recent
pronouncement
in Guzman v.
I.
(Tex.Crim.App.1997).
88-89
Appellant
originally suspected by
However, in conducting its de novo review of
*3
transporting
of
U.S. Border Patrol
undocu-
suspicion
the reasonable
the Court of
Appellant
mented aliens.
suspi-
the
aroused
Appeals
apparently
has
each
examined
of the
agente
cion of
driving
the
because he was
an
different factors in isolation to determine
appeared
older vehicle which
weighted down
whether each militates
against
in favor of or
very
and was
close to another vehicle. Fur-
a finding of
suspicion.
reasonable
See
ther, the vehicles were located several miles
State,
405,
Loesch v.
921 S.W.2d
408-409
immigration checkpoint.
an
from
The Court
1996).
(Tex.App.—Corpus Christi
Because
Appeals gave
of
the historical
suspicion
reasonable
is determined
the
facts of the trial court and conducted a re-
totality
circumstances,
of the
an
upon
totality
view based
the
of the circum-
court
all
together
must look at
of the facts
Loesch,
(Tex.
stances.
921
408
S.W.2d
make
determination;
suspicion
reasonable
1996).
App.—Corpus Christi
facts that do
suspicion
not show reasonable
may
in isolation
do so when combined with
recently
This Court has
held “reasonable
other facts.
Brignoni-
See United
v.
States
probable
cause should be
Ponce,
422 U.S.
885 n.
95 S.Ct.
appeal.”
viewed de novo
v.
Guzman
(1975).
n.10, 45
2582
607
L.Ed.2d
State,
(Tex.Cr.App.1997)
955
87
S.W.2d
—
(citing
States,
Ornelas v. United
Moreover,
U.S.
Appeals
the Court of
also
has
-,
1657,134
(1996)).
116 S.Ct.
L.Ed.2d 911
apparently utilized the “as consistent with
opined,
As this Court
“if the issue is whether
activity
innocent
as
activity”
with criminal
probable
an officer had
cause to seize a sus-
construct
in at
part
opinion.
least
of its
circumstances,
pect,
totality
under the
of the
Loesch, 921 S.W.2d at
(citing
409
Johnson
judge
appreciably
the trial
is
in
State,
not
better
658 S.W.2d
626 (Tex.Crim.App.
reviewing
1983)).
than the
court to make
recently
We have
disavowed the use
Guzman,
that determination.”
A
at 87.
care-
State,
of that construct. Woods v.
956
Appeals
ful review of
opinion
the Court of
(Tex.Crim.App.1997).
S.W.2d 33
every
reveals that the Court took
historical
judgment
We vacate the
of the Court
Loesch,
fact as
trial
court found it.
921
Appeals
pro
of
and remand this cause for
Only
applied
at 407.
after
ceedings
opinion.2
consistent with this
proper
legal, analysis,
was the trial
Id.,
court’s decision determined erroneous.
OVERSTREET, J., dissents.
at 411. The Court held:
BAIRD, Judge, dissenting.
...
roving
court cannot
[t]his
warrant
The majority chooses to reverse the
appearance
searched based on the nervous
because,
Appeals opinion
although the
in
happen
of drivers
older
who
cars
used the
de
highways,
correct
novo
drive down certain
absent other
incorrectly
standard of
applied.
articulable
which create
facts
reasonable
analysis
already
Because the correct
has
While we are of the
completed by
been
testify
with
that the
did
as to some of the
State
Judge Meyers
depart
Appeals’
may
contends that we
from
Court of
we
decision that
choose to
by remanding
case
to the Court
Guzman
review or not
a
review. Whether
conduct
de
conducting
instead of
our
own
novo
review or
novo
remand
review. But he concedes that
did not
discretionary
do so
is a
in
first instance
say
we
must conduct such a review our-
governed by
types
is
matter and
"may
merely
selves but
stated that this Court
prudential
determining
in
considerations used
”
Meyers,
exercise
J.
its discretion to do so. See
And,
grant
whether
at all.
in all
case,
present
op.
dissenting
(quot-
in
n. 1
decisions,
discretionary
we
such
need
articu-
ing
added).
89)(emphasis
appli-
declining
late our reasons for
review.
simply
aspect
cation of law to
facts is
of that standard.
which briefest
considerations
Brignoni-Ponce
in
criteria stated
State,
recently
justify As
decided Woods
with
might, together
other
(Tex.Cr.App.1997), that test
totality of the
suspicion, the
man, J., (Meyers, at fii. 4 concurring and
dissentingXquestioning role of this
“reviewing” appeals decisions of courts of noting “normally, and that when this Court VINEYARD, Appellant, Cecil Don appeals applied determines a court wrong applied test wrongly or of Texas STATE test, we vacate remand for and that court test”) No. 4446-96. properly apply with Guz at Meyers’ fn. 3 (responding to Texas, Court of Criminal “reviewing” comments about decisions En Banc. appeals stating courts of that this Court Jan. “reviews” conducting decision de novo concluding disagree review and “we with the prob and decide there was cause”).
able Admittedly said that its discretion to review de novo these decisions appeals "may" courts and this Court courts”). the intermediate But questions view these mixed of law and fact de guidance there or in the novo, suggesting appeals the courts opinion today appeals as to when the courts of or “may” differently elect review them also might this Court elect not to conduct de novo Court, “may” the case of this elect also matter, insight review. Until further on the ("the appel- them all. dispose of will assume this Court should cases in may questions late court 'mixed review novo ” manner as Court Guzman. may law fact’ "[t]his exercise