Man, these suppression hearings can be tricky little devils. There are dozens of reasons for these get-togethers and they usually entail different aspects of how evidence is discovered and/or suppressed. See Texas Code of Criminal Procedure Articles 38.21-38.23.

First, these hearings don't even need to be a hearing. The trial judge can review all of the motions and responses absent live testimony. And, again, as we all know, the rules of evidence don't even apply. See Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002). The trial judge is under no obligation to make findings of fact and conclusions of law,⁽¹⁾ and occasionally we have to search the entire record to determine if they have even ruled on the motion. See Montanez v. State, 143 S.W.3d 344, 345 (Tex. App.-Waco 2004). Next comes the fun part-APPELLATE REVIEW. Here is just a short list of the factors that the courts of appeals have to consider:

The issue in this case is identical to the issue we unanimously ruled on in Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000). The court of appeals did not err by failing to apply a Guzman standard of review because there is no issue of credibility and demeanor of the witnesses in this case. This is not a review of a cold record, rather it is the court of appeals watching the exact same videotape that the trial judge watched and then holding that the trial judge made an incorrect ruling. The trial judge was not in a better position to review the evidence as he would be in a situation of live testimony.⁽²⁾

In a situation such as the one before us, when the appellate court has the exact same quality of evidence before it on review that the trial judge had before him in a suppression hearing, it is not necessary to view the evidence in the light most favorable to the trial court, and it is not necessary to give almost total deference to the decision of the trial judge. Satisfying a burden of proof necessarily involves weighing evidence. For a preponderance of the evidence, any evidence that tips the scales is sufficient. For evidence to be clear and convincing, it must be "highly probable or reasonably certain."⁽³⁾ And, as we all know, the highest burden is beyond a reasonable doubt. As we stated in Carmouche, "the nature of the evidence presented in the videotape does not pivot 'on an evaluation of credibility and demeanor.' Rather, the videotape presents indisputable visual evidence contradicting essential portions of [the officer's] testimony. In these narrow circumstances, we cannot blind ourselves to the videotape evidence simply because [the officer's] testimony may, by itself, be read to support the. . .holding." 10 S.W.3d at 332.

The trial judge improperly chose to disregard the evidence on the videotape that weighed against the State; evidence that made the State unable to show by clear and convincing evidence that Appellant freely and voluntarily consented to the search. Disregarding such evidence is error. The court of appeals properly reviewed this evidence and held that there was not clear and convincing evidence to support the State's claim that Appellant freely and voluntarily gave consent to search the vehicle.

I would affirm the decision of the court of appeals. Therefore, I respectfully dissent.

Meyers, J.

Filed: April 26, 2006

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1. See State v. Terrazas, 4 S.W.3d 720, 728 (Tex. Crim. App. 1999)

2. While Officer Bridges testified to his version of the stop, the videotape showed the real story and offered indisputable evidence of whether Appellant freely and voluntarily consented to the search.

3. See Black's Law Dictionary 457 (Abridged 7^th Edition 2000).

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