Anibal Montanez A/K/A Ivan Montilla-Pena v. State

• Court: Court of Appeals of Texas
• Decided: November 8, 2006
• Docket: 10-02-00274-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-02-00274-CR

Anibal Montanez

a/k/a Ivan Montilla-Pena,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 217th District Court

Angelina County, Texas

Trial Court No. 21844

DISSENTING Opinion ON REMAND

The opinion of the Court of Criminal Appeals states:  “The fact that the State bore the burden of proving by clear and convincing evidence that Montanez voluntarily consented to the search at the suppression hearing does not change the standard of review on appeal.”  Montanez v. State, 195 S.W.3d 101, 108 (Tex. Crim. App. 2006).

That defies logic.

      In my view, the error in that statement springs from the indiscriminate application of Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997), to all suppression hearings, regardless of their subject matter.  See Montanez, 195 S.W.3d at 109-10 (Meyers, J., dissenting).  The decision in Guzman was whether probable cause existed and the standard set out in the court’s opinion was designed to comply with the mandate for “independent review” of determinations of reasonable suspicion and probable cause set forth in the U.S. Supreme Court’s Ornelas decision.  Guzman, 955 S.W.2d at 87 (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).  The Guzman opinion notes that probable cause “requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence.”  Id.

      Abuse-of-discretion reviews generally involve two types of questions:  questions of fact[1] and questions of law.  Questions of fact are subject to a deferential sufficiency review wherein we determine whether the evidence contained in the record sufficiently supports the factual matters determined by the trial judge.  Application of the law to those facts is a question of law reviewed de novo.  See Villarreal v. State, 935 S.W.2d 134, 145 (Tex. Crim. App. 1996) (Keller, J., concurring).

Thus, the problem this court faced in this case, and faces again, is that we have found no Court of Criminal Appeals case defining the term “clear-and-convincing evidence.”  Nor did we find any discussion about how the requirement of clear-and-convincing proof of consent fits into the Guzman standard of review, which, as noted, did not address consent to search but dealt with findings of reasonable suspicion and probable cause that can be supported by less evidence than a preponderance.

      I cannot conceive that the Court of Criminal Appeals would adopt a definition of clear and convincing evidence different from that enunciated by the U.S. Supreme Court and the Texas Supreme Court.  And, I cannot believe that the court says that findings made under the constitutionally required clear-and-convincing standard of proof can be reviewed in the same manner as findings requiring only a preponderance of the evidence, or less.  I say this because the court has already recognized that the burden of proof in a trial-court hearing affects the standard by which we review factual determinations on appeal.  See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Thus, as a “matter of logic,” our review of the ruling from a suppression hearing in which proof of the fact issue of consent must rise to the level of clear and convincing evidence should be less deferential, even when the standard of review is whether the trial judge abused his discretion and when the factual determinations turn on the credibility of the witnesses.  See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004)[2] (“As a matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.”) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)).

Is the court really saying that under Guzman, the burden of proof at the suppression hearing does not matter, so that the standard of review is the same whether the burden in the trial court was clear and convincing evidence or some lesser burden?

      Hopefully the court will re-examine whether Guzman applies to appellate review of all suppression hearings or just those involving reasonable suspicion and probable cause.  A more workable solution would be to return to the two-part analysis, whereby fact issues are reviewed to determine whether the evidence contained in the record sufficiently supports the factual matters determined by the trial judge (bearing in mind the burden of proof at the hearing) and application of law to fact issues are reviewed de novo.  See Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).

The majority quotes the Court of Criminal Appeals’ opinion: “The issue is whether, after affording almost total deference to the trial court's determination of historical facts that are supported by the record, the trial court abused its discretion by finding that the State proved by clear and convincing evidence that Montanez voluntarily consented to the search of the vehicle.”  See Montanez, 195 S.W.3d at 108.  That statement is internally inconsistent—only after deferring to the trial judge’s determination of historical facts that are supported by the record, should the question concerning abuse of discretion be asked.  However, whether consent was given is an issue of fact.  Here, it is an historical fact that must be supported by the record before it is due “almost total deference.”  Because I do not believe that the record sufficiently supports (by clear and convincing evidence) the implied finding that Montanez voluntarily consented to the search of the vehicle, I respectfully dissent.

BILL VANCE

Justice                                                                                                                                         

Dissenting opinion delivered and filed November 8, 2006

Publish   

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    [1]   The quantum of proof required in a suppression hearing may differ depending on the issue involved.  For example, proof of consent requires clear and convincing evidence (as here).  In a search warrant case proof of perjury or reckless disregard of the truth requires a lesser burden: preponderance of the evidence.  Other issues require a lesser standard (such as in Guzman).

    [2]   Zuniga was overruled in part by Watson v. State, ___ S.W.3d ___, ___ 2006 WL 2956272, at *10 (Tex. Crim. App. October 18, 2006).