Cochran, J., filed a concurring opinion, joined by Johnson, J.

I join the Court’s opinion. I write separately to express my reservations about the propriety of resolving disputed material facts based solely upon the relative merits of conflicting affidavits. I do not know how anyone, judge or jury, can assess credibility and decide which of two sworn, conflicting versions of one event is true, based solely upon a written affidavit.

Affidavits are widely used in both criminal and civil proceedings to determine if there are material disputed fact issues and, if so, to define exactly what those disputed issues are.¹ When, however, one affiant says, “the light was green,” while another affiant says, “the light was red,” a hearing at which the witnesses testify, are cross-examined, and have their credibility assessed by the factfinder is usually required.² As the court of appeals aptly states in this case:

In cases where the parties are in substantial agreement on the underlying facts, the use of affidavits may be an efficient means of presenting legal issues to a court for determination prior to trial. Where critical facts are in dispute, however, such disputes are poorly resolved by the use of affidavits. The procedure permits no confrontation, no opportunity to observe, no testing by cross-examination, no inadvertent slips of the tongue, no retraction or recantation of testimony, no clarification of terms, etc.³

Even in civil cases, in which the penalty is measured in terms of money, rather than in terms of imprisonment, summary judgment based on sworn affidavits is appropriate only when those affidavits do not raise a disputed fact issue.⁴ The federal and Texas civil summary judgment rules do not allow trial by affidavit. Rather, those rules provide a method of summarily disposing of a case that involves only a question of law and no disputed fact issues.⁵ The rationale is clear: a factfinder cannot determine credibility and hence cannot decide between two conflicting versions of an event without seeing and hearing witnesses.

It seems odd, then that, in the criminal justice system, this methodology– determining the “truth” from the face of conflicting affidavits alone – is not only permitted, but widely practiced. I frankly do not understand how a trial judge can reliably determine which of two conflicting affidavits is the more truthful version of events. Should the more grammatically correct affidavit prevail? Or perhaps the more mellifluous? Or more plain-spoken? The longer narration? Or the shorter? Or, as in the medieval days of “oath-helping,” does truth lie with the greater number of affidavits?⁶ One hopes that an affiant’s status does not automatically determine the choice, with the defendant’s version never believed and the police officer or other affiant’s always believed.⁷ Certainly, if an affidavit contains internal inconsistencies, important omissions, or obvious flights of fancy which are palpably incredible or patently frivolous (“A pink elephant put the packet of heroin in my pocket”), there is a rational basis for discrediting a particular affidavit. But when each affidavit offers reasonably plausible, if contradictory, versions of events, the danger of arbitrariness in choosing one over the other is great.⁸

Why, then, is this illogical method of fact-finding countenanced? Courts tolerate this imperfect methodology for the very reasons set out in the Court’s opinion in this case. First, these “paper hearings” concern only preliminary rulings or post-conviction matters.⁹ They are not permitted at the main event of the trial. There, our constitutions and statutes require witnesses to appear in person and to subject themselves to confrontation and cross-examination. Second, the Texas Legislature has explicitly permitted this “dueling affidavits” process, for both pretrial and post-conviction hearings.¹⁰

The appellant in this case argues that reviewing courts should not defer to a trial court’s factual determinations based upon conflicting affidavits. There is some merit to his argument. Indeed, the reason that reviewing courts defer to the trial court’s factual determinations is precisely because the judge is “Johnny-on-the-spot,” personally able to see and hear the witnesses testify.¹¹ He makes credibility determinations, based upon demeanor, tone of voice, hesitancy of speech, perhaps the almost imperceptible shrug of shoulders, tightening of the jaw, or clench of fists. In the context of dueling affidavits, however, the trial judge is in no better position to determine the affidavit’s credibility than is the reviewing court.¹² Both are looking at exactly the same evidence: a cold record, a piece of paper.¹³

Although the trial judge is in no better position to gauge the truth of an affidavit, he is in no worse position, either. Both the trial and appellate judge are making credibility decisions based upon the content of a document. Neither has a superior ability to ferret out the truth. Appellant argues that appellate courts should nonetheless conduct a de novo review of conflicting affidavits, because “three heads are better than one.” But that is not necessarily accurate. Since there is no credibility decisionmaking and frequently no articulated basis for choosing one plausible version of the event over another plausible version, there is no reason to believe that three judges will divine the truth from a piece of paper any better than one–or that nine can do it better than three. In either instance, the factual determination regarding whether the light was red or green, based solely upon written affidavits, depends upon some undefinable intuitive process.

This procedure, albeit expressly permitted by statute and not expressly prohibited by constitution, does not inspire confidence. Trial judges who are confronted with contradictory affidavits, each reciting a plausible version of the events, ought to convene an evidentiary hearing to see and hear the witnesses and then make a factual decision based on an evaluation of their credibility. In cases where such a hearing would be impracticable, I think trial judges should place on the record their rationale for deciding, from the face of opposing affidavits, why the light was red rather than green, and why it was impracticable to conduct an evidentiary hearing.

With these comments, I join the Court’s opinion.

Cochran, J.

Date Delivered: October 23, 2002

Publish

¹ In many instances, it is perfectly appropriate for a trial judge to rely upon affidavits in making a factual determination: when the facts set out in an affidavit are uncontradicted, see Derby v. State, 960 S.W.2d 274, 276-77 (Tex. App. – Houston [1^st Dist.] 1997, pet. ref’d); when the facts set out in both sides’ affidavits are consistent, see id.; when facts set out in an affidavit are contradicted by live testimony, see Kober v. State, 988 S.W.2d 230, 234 (Tex. Crim. App. 1999), or when other physical evidence refutes the facts set out in an affidavit, cf. Carmouche v. State, 10 S.W.3d 323, 332-33 (Tex. Crim. App. 2000) (rejecting trial court’s implied finding that events occurred as claimed by ranger, when ranger’s account was contradicted by “indisputable visual evidence” of a videotape). In each of these instances, there is a rational, logical and articulable basis for crediting one affidavit over another.

² See, e.g., Jackson v. State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994) (Baird, J., concurring) (noting that ineffective assistance of counsel claims are most appropriately developed “in the context of a hearing held in relation to an application for writ of habeas corpus”); Rodriguez v. State, 844 S.W.2d 744, 745 (Tex. Crim. App. 1992) (court of appeals erred in failing to consider affidavit, attached to defendant’s motion to suppress, in determining whether he had met his burden of proof regarding warrantless search and seizure); Green v. State, 754 S.W.2d 687, 688 (Tex. Crim. App. 1988) (noting, in context of motion for new trial: “‘[a]s a matter of pleading and as a prerequisite to obtaining a hearing, keeping in mind that the purpose of the affidavit requirement is to limit the parameters of the hearing that is sought, we hold that an affidavit is sufficient if it demonstrates that reasonable grounds exist for believing that jury misconduct occurred’”); see also Herrera v. Collins, 506 U.S. 390, 445 (1993) (Blackmun, J., dissenting) (noting that “[i]t is common to rely on affidavits at the preliminary-consideration stage of a habeas proceeding. The opportunity for cross-examination and credibility determinations comes at the hearing, assuming that the petitioner is entitled to one. It makes no sense for this Court to impugn the reliability of petitioner’s evidence on the ground that its credibility has not been tested when the reason its credibility has not been tested is that petitioner’s habeas proceeding has been truncated”).

³ Manzi v. State, 56 S.W.3d 710, 715 (Tex. App. – Houston [14^th Dist.] 2001) (footnote omitted).

⁴ See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (the summary judgment standard of review “by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor”).

⁵ Tex. R. Civ. P. 166a(c) (summary judgment appropriate only when “there is no genuine issue as to any material fact”); see Gulbenkian v. Penn, 151 Tex. 412, 426, 252 S.W.2d 929, 931 (1952) (trial court’s duty in summary judgment hearing is to determine if there are any fact issues to try, not to weigh the evidence or determine its credibility); Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 555 (Tex. App. – San Antonio 1998, no writ) (“a summary judgment that involves the credibility of affiants will not be granted since it cannot be said that no genuine issue of fact exists”); Fed. R. Civ. P. 56; see Richardson v. Oldham, 12 F.3d 1373, 1379 (5^th Cir. 1994) (“[c]redibility determinations have no place in summary judgment proceedings”); Lindsey v. Price Corp., 987 F.2d 324, 327 n.14 (5^th Cir. 1993) (holding that, in ruling on summary judgment motion, it is not appropriate for judges to make “credibility assessments of conflicting evidence”).

⁶ The State argues:

Another manner in which a trial judge may make reasonable credibility determinations on the basis of affidavits alone is when a party offers affidavits from two or more affiants. If multiple affidavits are offered and the different affiants tend to corroborate each other’s story, the trial judge may reasonably assign a degree of credibility to the affiants. ... Moreover, an affidavit which offers a detailed account of an event may reasonably be interpreted as more credible than an affidavit that describes an event in vague terms.

Although the truth may lie in a headcount and in details, there is no indication in this record that the trial judge did base her factfinding on the number of police affidavits (two), versus the defendant’s lone counter-affidavit or on the greater length of the police affidavits–six pages.

⁷ The State notes that “a criminal defendant has an inherent and obvious bias since almost any non-pleading defendant is intent on avoiding a guilty verdict. As such, a trial judge may assess the credibility of a defendant’s affidavit in light of the defendant’s self-preservation interest.” Conversely, a police officer may have an interest in having his search or questioning techniques upheld even if his methods, in a particular case, did not pass constitutional muster. It simply cannot be said that every criminal defendant has an inherent and obvious bias and no police officer (or other counter affiant) ever has any such bias.

⁸ The State argues that:

[I]t is certainly possible that the trial judge had previous experience with the affiants, particularly the two police officers. The two officers who executed affidavits were both members of the narcotics division of the Houston Police Department. Therefore, these officers likely had been involved in prior criminal prosecutions in Harris County. As such, it is also possible that the trial judge, either in her current capacity as a trial judge and/or her previous capacity as a practitioner, had prior experience with the officers and had perceived a measure of the officers’ credibility by this means. Similarly, the trial judge may have observed appellant’s demeanor in prior pretrial settings and, as a result of such observations, been able to assess appellant’s credibility to a certain degree.

It is also “possible” that the trial judge lives next door to the police officers or to appellant, but like the State’s argument, all of this is pure speculation. Nothing in the record suggests the trial judge knew any of the affiants or had any articulable basis for crediting one affidavit over another.

⁹ See United States v. Raddatz, 447 U.S. 667, 678 (1980) (although “the resolution of a suppression motion can and often does determine the outcome of the case .... the interests underlying a voluntariness hearing do not coincide with the criminal law objective of determining guilt or innocence”).

In Raddatz, the Supreme Court held that the Federal Magistrates Act did not require a district court judge to rehear the live testimony and independently evaluate the credibility on which the magistrate based his findings and recommendations on a motion to suppress. Id. at 680-81. As the Court noted, “A defendant who has not prevailed at the suppression hearing remains free to present evidence and argue to–and may persuade–the jury that the confession was not reliable and therefore should be disregarded.” Id. at 678. The interests at stake in a suppression hearing are “of a lesser magnitude” than those in the criminal trial itself. Id. at 679. Furthermore, “[a]t a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial.” Id.

There is, however, an important distinction between Raddatz and the present situation: in Raddatz, the magistrate heard live testimony and was therefore able to determine credibility from seeing and hearing the witnesses. The magistrate then made factual findings and recommendations to the district court which was free to exercise its discretion to conduct another hearing and view the witnesses itself. Id. at 680-81. Thus, the defendant “was afforded procedures by which a neutral decisionmaker, after seeing and hearing the witnesses, rendered a decision.” Id. at 684 (Blackmun, J., concurring).

Justice Marshall, however, noted that “[o]ne of the most deeply ingrained principles in Anglo-American jurisprudence requires that an official entrusted with finding facts must hear the testimony on which his findings will be based.” Id. at 695 (Marshall, J., dissenting, joined by Brennan, J.). He stated that “judicial factfinding on the basis of a written record carries an intolerably high risk of error” and argued that “the requirement that a finder of facts must hear the testimony offered by those whose liberty is at stake derives from deep-seated notions of fairness and human dignity.” Id. at 696-97. These concerns, however, did not mean

that a district judge must hear the witnesses in every case, or even in all cases in which issues of credibility are raised. An actual rehearing would be required only in cases involving case-dispositive issues that are impossible to resolve on the basis of the written record. ... Neither respondent’s nor the agent’s story carried inherent indicia of reliability. Both accounts suffered from inconsistencies. In the end the issue was solely one of credibility. On the basis of the cold record, the District Judge had no basis for determining whether the respondent or the agents were telling the truth. He was required, therefore, either blindly to accept the Magistrate’s findings as to matters of credibility or to flip a coin.

Id. at 698.

¹⁰See Tex. Code Crim. Proc. art. 11.07(d) (explicitly permitting trial judges to resolve controverted, previously unresolved facts by “affidavits, depositions, interrogatories, and hearings, as well as using personal recollection”); art. 11.071, § 9(a) (same); art. 28.01, §1(6) (“When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court”); but see 40 George Dix and Robert Dawson, Texas Practice: Criminal Practice and Procedure § 4.176 at 268-70 (2^nd ed. 2001) (suggesting that “if the affidavits indicate that the defense has witnesses apparently able and willing to give testimony that on its face would entitle the defendant to prevail, the defendant is probably entitled to a full evidentiary hearing and the trial court would err in overruling the motion on the affidavits”).

¹¹ See Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (explaining requirement that reviewing courts must defer to trial court findings of fact unless they are clearly erroneous and noting that “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 also Boyd v. Boyd, 252 N.Y. 422, 429, 169 N.E. 632, 634 (1930) (“Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth .... How can we say the judge is wrong? We never saw the witnesses .... To the sophistication and sagacity of the trial judge the law confides the duty of appraisal .... His was the opportunity, the responsibility and the power to decide”).

¹² See, e.g., Torrez v. State, 34 S.W.3d 10, 13 (Tex. App. – Houston [14^th Dist.] 2000, pet. ref’d) (noting that when suppression motion decided solely on basis of written affidavits, “the trial judge was in no better position then this court to determine the legality of the search”); compare State v. West, 20 S.W.3d 867, 870 (Tex. App. – Dallas 2000, pet. ref’d) (when reviewing “historical facts that the record supports, especially when the trial court’s fact findings are made on the basis of an evaluation of credibility and demeanor ... we show almost total deference to the trial court’s determination because of the trial court’s exclusive fact finding role and because a trial court is in an appreciably better position to decide the issue”).

¹³ Lord Coleridge waxed eloquent in ruling that a retrial should not be conducted by reading notes of the witnesses’ previous testimony:

The most careful note must often fail to convey the evidence fully in some of its most important elements. ... It cannot give the look or manner of the witness: his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration; ... the dead body of the evidence, without its spirit; which is supplied, when given openly and orally, by the ear and eye of those who receive it.

Queen v. Bertrand, 4 Moo. P. C. N. S. 460, 481, 16 Eng. Rep. 391, 399 (1867).