IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1618-99

THE STATE OF TEXAS


v.



RODNEY DEE ROSS, Appellee



ON DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

AUSTIN COUNTY


Womack, J., filed a concurring opinion in which Keller, and Keasler, JJ., joined.



I agree with what the Court has done, but I wish we would change what we say.

No matter how many times we have said it, there is no justification for us to "assume that the trial court made implicit findings of fact that support its ruling," ante at 7. There is no more reason to assume that the trial court made implicit findings of fact that support its ruling than there is to believe that the trial court made implicit conclusions of law that support its ruling.

It is not correct that "in cases like this one, when no findings of fact are filed, [and] the uncontroverted testimony of the witness adds up to probable cause if believed, and the motion [to suppress evidence] is nevertheless granted, the resolution of the issue in such cases turns completely on the credibility of the witness," ante at 11. It is just as possible that the resolution of the issue turned on the trial court's understanding of the law. Indeed, it is more likely that the trial court's ruling is one of law when the evidence was uncontradicted.

It is not correct that there are "two possible theories upon which the trial court's ruling may rest[:] either the testimony of the agent was credible, but the facts established by that testimony do not constitute probable cause (or reasonable suspicion for the initial detention)[,] or the trial court did not find the agent to be credible," ante at 7. An almost infinite number of theories, each of them resting on a different legal error, also would explain the trial court's ruling.

We should abjure such statements, not only because they are unjustified or incorrect, but also because they encourage unexplained rulings. In a system in which appellate courts make unjustified and incorrect assumptions to uphold rulings, a trial judge who is more concerned about being affirmed than being right has every incentive to make one-word rulings. I hope and believe that such judges are few. But countless errors of law can be hidden behind unexplained rulings if we are willing to assume that judges have rejected uncontroverted testimony, for no apparent reason, without saying so.

None of the Court's statements is necessary to our judgment. The simple and correct resolution of this recurring problem is to say that, when the party that is challenging a trial court's ruling fails to request findings of fact, an appellate court will not reverse a ruling that could be reasonably based on adverse findings of fact. If we couple this rule with a rule that the failure to make findings of fact, on request that was timely presented and refused over objection, is an independent ground for reversal of the trial court's judgment, (1) we will have taken a step toward the just resolution of these appeals -- a resolution that is based on the reality of what happened rather than on assumptions that may be entirely fictitious.

I concur in the judgment of the Court.

En banc.

Delivered November 29, 2000.

Publish.

1. Cf. Tex. R. Civ. P. 297 ("The court shall file its findings of fact and conclusions of law within twenty days after a timely request is filed"); id., R. 299 ("Refusal of the court to make a finding requested shall be reviewable on appeal"); Tex. R. App. P. 33.1(a)(2)(B) (prerequisite to complaint on appeal is satisfied by showing that request, objection or motion was properly made and "the trial court refused to rule on the request, objection, or motion, and the complaining party objected to the refusal").