NO. 2116-01






Womack, J., filed a concurring opinion, in which Johnson, J., joined..

The Court holds, "The Court of Appeals correctly employed a deferential standard of review of the trial court's resolution of the historical facts from conflicting affidavits." (1) My understanding of this holding is that it does not decide (1) whether the Court of Appeals employed the correct standard, or (2) whether a trial court would err by resolving factual issues like the ones in this case when a party objected.


Saying that the Court of Appeals "correctly employed a deferential standard of review" is not the same as saying that it employed the correct deferential standard of review. My understanding that the Court says the former, but not the latter, is bolstered by the first paragraph of its opinion:

The question presented is whether a deferential or a de novo review applies to a trial court's determination of historical facts when that determination is based solely upon affidavits. We hold that a deferential review applies in that situation." (2)

I take our decision to go no further than the choice of deference over de novo.

The court of appeals' standard was "almost total deference to the trial court's resolution of the historical facts." (3) This is the same standard that we apply to findings that the trial court makes from testimony. We may have to decide, in the future, whether another, deferential standard applies to findings that are based on affidavits. As does the Court, I find the decisions of the federal courts to be instructive.

The Supreme Court decision in Anderson v. City of Bessemer City, (4) on which the Court relies today, (5) is inadequate to resolve the issue for us because we do not have the rule of procedure that the federal courts do. Anderson construed a rule. The decision to defer to findings of fact that are based on documentary evidence, rather than to find the facts de novo, was made when the rules was adopted, not in Anderson. Anderson states some, but not all, of the arguments that prevailed when the rule was adopted.

A. Federal Rule of Civil Procedure 52(a), 1938 - 1984.

In 1938 Federal Rule of Civil Procedure 52(a) was adopted. The relevant sentence read, "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." According to Professors Wright and Miller, the most important purpose of that sentence was to allow federal appellate courts to do any review of fact findings in cases at law. The drafters also set a standard of review, and they chose the one that was used in equity cases.

The provision in Rule 52 (a) stating that findings of fact shall not be set aside unless clearly erroneous represents a statement of what was considered to be the federal equity practice in the years just prior to the merger of law and equity. Before that merger the scope of appellate review turned on whether an action was at law or in equity. The Seventh Amendment bars appellate review of facts found by a jury in actions at common law and it had been held that the same bar to review applied in legal actions in which jury trial was waived. Equity practice had departed from the broad de novo review of ancient chancery and the rule had developed that the findings of the trial court had great weight with the appellate court but were not conclusive.

The Advisory Committee deemed it desirable to have a single standard of review for all actions tried to the court, whether historically legal or equitable. A majority of the Committee preferred the broader equity review to the narrower review at law, although the Committee was not unanimous on this point. Early drafts undertook to state the scope of review by simple reference to equity practice, but this was abandoned, quite likely because there was considerable uncertainty about precisely what the equity practice was. Instead the rule as adopted states the "clearly erroneous" test. (6)

For 45 years after the adoption of the rule, including the time when Anderson was litigated, there developed "confusion and conflicts among the circuits as to the standard of appellate review of findings of fact by the court, [and] disparity between the standard of review as literally stated in Rule 52(a) and the practice of some courts of appeals." (7)

Some courts of appeal have stated that when a trial court's findings do not rest on demeanor evidence and evaluation of a witness' credibility, there is no reason to defer to the trial court's findings and the appellate court more readily can find them to be clearly erroneous.

Others go further, holding that appellate review may be had without application of the "clearly erroneous" test since the appellate court is in as good a position as the trial court to review a purely documentary record.

A third group has adopted the view that the "clearly erroneous" rule applies in all nonjury cases even when findings are based solely on documentary evidence or on inferences from undisputed facts.

The commentators also disagree as to the proper interpretation of the Rule. Compare Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn. L. Rev. 751, 769-70 (1957) (language and intent of Rule support view that "clearly erroneous" test should apply to all forms of evidence), and 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil 2587, at 740 (1971) (language of the Rule is clear), with 5A J. Moore, Federal Practice P 52.04, 2687-88 (2d ed. 1982) (Rule as written supports broader review of findings based on non-demeanor testimony).

The Supreme Court has not clearly resolved the issue. (8)

Professor Wright's view was that the original version of Rule 52(a) clearly required deference to findings, whether made on documentary evidence or on oral testimony. He pointed out, "In 1948, in the leading case on Rule 52(a), the Court said that the 'clearly erroneous' test is applicable to 'inferences drawn from documents or undisputed facts' and it has restated that position several times," in cases before Anderson. (9)

What was clear to Professor Wright being evidently unclear to others, action was taken in 1985 on two fronts. One was by amendment to the rule, and the other was in Anderson.

B. Anderson

The passage from the Anderson opinion that the Court quotes today does not mention two things that I think are significant. One is the Anderson Court's statement that, while de novo review of documentary evidence might be a good thing, Rule 52(a) does not allow it. The other is that the Anderson Court specifically recognized that findings on oral testimony are entitled to greater deference than findings on written evidence.

Anderson was an equal-employment-opportunity suit in which the issue was whether the court of appeals had correctly applied the "clearly erroneous" standard of review. The Supreme Court held that the court of appeals had erred in conducting a de novo review of documentary and oral evidence. Its opinion first set out the rules that should be followed for review of written and oral evidence. Then it applied the rules. It discussed the oral testimony to which the court of appeals failed to give proper deference but I cannot tell from the opinion what the written evidence was. The court of appeals' opinion does not identify it either, and it says nothing about a different standard for written evidence.

For the reader's convenience, here is the entire passage from Anderson that set out the standards:

The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. "In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969). If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982).

This is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. To be sure, various Courts of Appeals have on occasion asserted the theory that an appellate court may exercise de novo review over findings not based on credibility determinations. See, e.g., Orvis v. Higgins, 180 F.2d 537 (CA2 1950); Lydle v. United States, 635 F.2d 763, 765, n. 1 (CA6 1981); Swanson v. Baker Industries, Inc., 615 F.2d 479, 483 (CA8 1980). This theory has an impressive genealogy, having first been articulated in an opinion written by Judge Frank and subscribed to by Judge Augustus Hand, see Orvis v. Higgins, supra, but it is impossible to trace the theory's lineage back to the text of Rule 52(a), which states straightforwardly that "findings of fact shall not be set aside unless clearly erroneous." That the Rule goes on to emphasize the special deference to be paid credibility determinations does not alter its clear command: Rule 52(a) "does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court's findings unless clearly erroneous." Pullman-Standard v. Swint, 456 U.S. [273], at 287 [(1982)].

The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the Court has stated in a different context, the trial on the merits should be "the 'main event' ... rather than a 'tryout on the road.'" Wainwright v. Sykes, 433 U.S. 72, 90 (1977). For these reasons, review of factual findings under the clearly-erroneous standard -- with its deference to the trier of fact -- is the rule, not the exception.

When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. See Wainwright v. Witt, 469 U.S. 412 (1985). This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. See, e.g., United States v. United States Gypsum Co., supra, 333 U.S., at 396. But when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Cf. United States v. Aluminum Co. of America, 148 F.2d 416, 433 (CA2 1945); Orvis v. Higgins, supra, at 539-540.

It seems to me that the last paragraph from Anderson, above, is similar to our opinion in Guzman v. State. (10) Today we say, "Guzman did not purport to hold that historical fact issues could be reviewed de novo if credibility and demeanor considerations were absent." (11) While that is true, it is also true that Guzman did not purport to hold that the same standard of almost total deference should apply when credibility and demeanor considerations were absent.

C. 1985 Amendment of Rule 52(a)

The other federal action that was taken in 1985 was to add to Rule 52(a) the italicized words: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."

The advisory committee's stated reasons for choosing to apply the "clearly erroneous" standard to findings that are based on documents were:

The principal argument advanced in favor of a more searching appellate review of findings by the district court based solely on documentary evidence is that the rationale of Rule 52(a) does not apply when the findings do not rest on the trial court's assessment of credibility of the witnesses but on an evaluation of documentary proof and the drawing of inferences from it, thus eliminating the need for any special deference to the trial court's findings. These considerations are outweighted [sic] by the public interest in the stability and judicial economy that would be promoted by recognizing that the trial court, not the appellate tribunal, should be the finder of the facts. To permit courts of appeals to share more actively in the fact-finding function would tend to undermine the legitimacy of the district courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority. (12)

A federal court of appeals has given another reason to justify Rule 52(a)'s policy: "The existence of any doubt as to whether the trial court or this Court is the ultimate trier of fact in nonjury cases impairs the confidence of the public in the decisions of the district courts." (13)

I offer these reasons to bolster today's decision that a trial court's findings from written evidence are entitled to deference.

D. Federal Courts of Appeals

Lower federal courts have recognized a difference in the deference that is due to findings that are based on written, rather than oral, evidence. Examples:

Slightly broader discretion when the trial court partially relied on documentary evidence or found many facts by drawing inferences from undisputed facts. (14)


If fact-finding is based on documentary evidence alone, appellant's burden of showing clear error is not as heavy as in a case that turned on the credibility of witnesses who appeared before the judge. (15)

When the fact-findings are based in large measure on documentary evidence, they do not carry the same weight on appeal as findings based entirely on oral testimony. (16)

When the district court relied solely on documents, the burden of establishing clear error is not so great as when the court engaged in judging witness credibility or in some other way that was in a superior vantage point, but the review is not de novo. (17)

One justification for this difference is the language in the rule about giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. If there was no such opportunity, the rule may be disregarded only as to the factor of that opportunity. (18)

Today's decision that appellate courts should review such findings with deference, and not de novo, should not foreclose our consideration of a degree of deference that is lower than the "almost total" deference to findings from oral testimony. Anderson recognizes this, and gives reasons for this policy that are the same as those in our Guzman opinion.


It is important that the findings in this case were made without objection in a proceeding that was not required. In oral argument we learned the important fact that the trial court had a policy of not allowing oral testimony at pre-trial hearings on motion to suppress evidence. This a trial court is free to do, since Article 28.01, section 1 of the Code of Criminal Procedure expressly allows a trial court to make pre-trial findings by affidavit, or not to make them at all. The best way to understand this case is that the trial court was, in effect, exercising its authority to hold no pre-trial hearing at all.

Such a policy involves saving judicial resources. A court must balance the time saved by not holding real pre-trial hearings against the time that would be expended if defendants were willing to plead "not guilty" in order to compel oral testimony on these issues. This is only a part of the intricate, every-day plea-bargaining in our courts, in which the courts and the prosecutors agree to lower punishments if the defendants agree to forego procedural rights. The fact that 97 per cent of Texas' felony convictions are obtained by guilty pleas (19) suggests that complete inadequacy of our judicial system to give plenary consideration to the fact issues in its cases. But a defendant who is willing to go to trial can have the factual issues determined on oral testimony; he can even have a jury determination of the issues that bear on the State's acquisition of its evidence. (20)

My Sister Cochran has explained, post, why the issues should not (and in other kinds of cases, may not) be decided from affidavits. If this or any other case presented an instance of a court's refusing to decide a credibility question on oral testimony, coupled with a party's inability to require such a decision in a proper proceeding, we would have to decide whether there was error.

The pre-trial statute does not foreclose such a holding. That the statute authorizes a court to make decisions on affidavits does not mean that it can make decisions of every kind on affidavits. The statute can be construed to allow some issues to be decided by written evidence when credibility determinations are not involved.

I join the Court's opinion, with the understandings I have set out.

En banc.

Delivered October 23, 2002,


1. Ante, at 6.

2. Id., at 1.

3. Id. at 3.

4. 470 U.S. 564 (1985).

5. See ante, at 5-6.

6. Charles Alan Wright & Arthur R. Miller, 9A Federal Practice and Procedure 2571 (2d ed. 1994) (footnotes omitted).

7. Advisory Committee Comments to 1985 Amendments.

8. Id. (case citations omitted).

9. Charles Alan Wright & Arthur R. Miller, supra note 1, at 2571 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 394 (1948), and citing, among others, United States v. Singer Mfg. Co., 374 U.S. 174, 194 n.9 (1963)).

10. 955 S.W.2d 85 (Tex. Cr. App. 1997).

11. Ante, at 5.

12. Advisory Committee Comments to 1985 Amendments.

13. Lyons v. Board of Educ. of Charleston Reorganized School Dist. No. 1, 523 F.2d 340, 347 (CA8 1975).

14. Clark v. Universal Builders, 718 F.2d 281 (CA7 1983).

15. Sierra Club v. Sigler, 695 F.2d 957 (CA5 1983).

16. Aetna Cas. & Sur. Co. v. Hunt, 486 F.2d 81 (CA10 1973).

17. Hall v. National Gypsum, 105 F.3d 225 (CA5 1997),

18. Epperson v. Connecticut Fire Ins. Co., 314 486 (CA 10 1963).

19. See Office of Court Admiinistration, Texas Judicial System Annual Report -- State Fiscal Year 2001 84-89 (2001).

20. See Tex. Code Crim. Proc. art. 38.23(b).