MARTINEZ, ROGER ANTHONY Appeal from 24th District Court of Victoria County (concurring by judge newell)
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1337-15 THE STATE OF TEXAS v. ROGER ANTHONY MARTINEZ, Appellee ON COURT’S OWN MOTION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS VICTORIA COUNTY N EWELL, J., filed a concurring opinion in which J OHNSON, H ERVEY, and A LCALA, JJ., joined. O P I N I O N I agree with the ultimate conclusion that we should remand the case for “essential findings” before we can evaluate the propriety of the trial court’s ruling on the defendant’s motion to suppress the evidence. Many of the trial court’s findings simply recount the trial court’s recollection of the hearing without evaluating the evidence for accuracy or credibility, or Martinez Concurring Opinion – 2 declaring what the trial court found to have happened. We simply have no idea what happened because we do not know if the trial court regarded some, all, or none of the testimony of the police officers as credible. This was the same flaw in the factual findings in State v. Mendoza, 365 S.W.3d 666, 671 (Tex. Crim. App. 2012). We remanded for new findings in that case, and we properly do so in this one. But I do not understand why the plurality ever sets out on the journey to evaluate the legal claims themselves (and adversely to the trial court, I might add) without knowing “what happened” according to the trial court. For example, the plurality notes that the testimony at the hearing permitted the reasonable inference that one officer perceived the same signs of public intoxication as the other two officers. But this assumes the very thing we are sending the case back for, a credibility determination. A trial court cannot draw reasonable inferences from incredible testimony. In this way, the plurality seems to be telegraphing to the trial court what factual determinations to make and how to resolve the legal issues.1 1 The plurality candidly adm its as m uch in its opinion. According to the Court, we m ust first determ ine whether the trial court could infer probable cause assum ing all the evidence was credible and properly considered. But that question is a legal one. The trial court held that such inferences are im perm issible under existing law. The plurality purports to “correct” the trial court’s legal determ ination by holding that “a finding of probable cause Martinez Concurring Opinion – 3 In State v. Elias, we held that the more prudent course in these situations is to remand the case to the trial court so it has the opportunity to address the potentially “dispositive” historical facts necessary to evaluate the legal claims. 339 S.W.3d 667, 679 (Tex. Crim. App. 2011). We relied upon Elias when we remanded for essential findings in Mendoza. 365 S.W.3d at 670-71. I agree with the holdings in both Elias and Mendoza. They have not yet proven to be unworkable or wrongly decided. See Grey v. State, 298 S.W.3d 644, 646 (Tex. Crim. App. 2009) (setting out different factors that support the overruling of precedent). But if we keep issuing opinions like the one in this case, we may have to revisit whether remanding for essential findings is truly an act of prudence rather than micro-management. With these thoughts I concur. Filed: December 14, 2016 Do not publish does not necessarily have to be supported by testim ony from the arresting officer him self, or even by testim ony from other officers who were at the scene concerning what they told the arresting officer.” This is not sim ply adding up all the evidence presented and determ ining if it would be possible to draw inferences; it is actually deciding the legal issue before all the facts are actually in. W ithout knowing what the trial court believed happened, any legal conclusion we would draw would be m erely advisory. See Arm strong v. State, 805 S.W .2d 791, 794 (Tex. Crim . App. 1991) (“This Court and the Court of Appeals are without authority to render advisory opinions.”). W ithout a credibility determ ination, the Court cannot reach the legal question because a finding on rem and that the officers lacked credibility renders the entire legal discussion com pletely m oot.
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