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.

Appellant was charged with possession of methamphetamine with intent to deliver. He filed a motion to suppress, and as authorized by Texas Code of Criminal Procedure, Article 28.01, §1(6),⁽¹⁾ the trial court resolved the motion solely on the basis of opposing affidavits from appellant and the State.⁽²⁾ The parties' affidavits agreed that an informant's tip led officers to appellant's hotel room, that appellant tried to run away and was arrested as a result, that appellant gave consent to search the room for methamphetamine, and that the officers discovered methamphetamine pursuant to the search. The affidavits differed on the details surrounding appellant's giving of consent. In his affidavit, appellant claimed that the officers threatened to arrest and charge his girlfriend if he did not lead officers to the drugs. The officers' affidavits claimed that appellant originated the idea of excluding his girlfriend from any potential prosecution and that he tried to secure promises from the officers that she would not be prosecuted if he cooperated. The affidavits also disagreed over whether officers intimidated appellant with firearms during the encounter. The trial court denied the motion to suppress. Later, appellant pled guilty and appealed.

On appeal, appellant contended that the search was illegal because his consent to search was not voluntarily given. Relying upon a statement made by this Court in Kober v. State that the truth of an affidavit "is a question of historical fact to be determined by the trial court"⁽³⁾ and on "the traditional inability of an appellate court to find facts," the Court of Appeals held that it must give almost total deference to the trial court's resolution of the historical facts, even though the trial court resolved those facts solely upon the affidavits submitted.⁽⁴⁾ The Court of Appeals then reviewed the merits of appellant's claim and, after resolving disputed issues of historical fact in the State's favor, held that the consent to search was voluntary.⁽⁵⁾

On discretionary review, appellant contends that the Court of Appeals erred in using a deferential, rather than de novo, standard of review of the historical facts. He contends that, without live testimony, the trial court was in no better position to resolve the credibility of the witnesses than an appellate court.⁽⁶⁾ Appellant further contends that courts of appeals are better decisionmakers than trial courts on affidavit-only records because "three heads are better than one" and because appellate courts have an advantage due to their ability to engage in a "deliberative process."

In Kober, Cardenas, a prospective witness, made statements to the police and the prosecutor that incriminated the defendant.⁽⁷⁾ In light of these statements, the defendant pled nolo contendere.⁽⁸⁾ In support of a motion for new trial, he introduced an affidavit from Cardenas in which she claimed her previous statements were untrue and were the result of coercion by the police.⁽⁹⁾ In citing the standard of review set out in Guzman v. State,⁽¹⁰⁾ we stated that: "Whether Cardenas' affidavit denying that she witnessed a murder is true is a question of historical fact to be determined by the trial court. Further, the trial court was in a position to evaluate the credibility of the prosecutor and defense trial counsel concerning their testimony during the motion for new trial hearing."⁽¹¹⁾ Later in the opinion, we discussed the reasons the trial court could disbelieve the affidavit: (1) Cardenas' refusal to testify at the motion for new trial hearing and (2) the prosecutor's testimony, which indicated that Cardenas made statements to the prosecutor that were inconsistent with the statements made in her affidavit, that Cardenas did not appear to be afraid of the law enforcement officials with whom she talked, and that Cardenas had consistently repeated her earlier story. While our language in Kober did indicate that the truthfulness of affidavits could be considered as a question of historical fact to be resolved with deference to the trial court, the opinion made clear that there were a number of factors extrinsic to the affidavit that called the affidavit's truthfulness into question ­ including live testimony, for which credibility determinations could readily be made. Kober is not squarely on point because there, unlike in the present case, the trial court did not make its determination based solely upon affidavits.

Nevertheless, the Court of Appeals is correct to refer to appellate courts' traditional inability to find facts. Our decision in Guzman, in which we held that a de novo standard of review applied to many application-of-law-to-fact questions, implicitly recognized that a trial court's rulings on questions of purely historical fact have traditionally been given deference even absent credibility determinations: "Our decision also is meant to reaffirm the long-standing rule that appellate courts should show almost total deference to a trial court's findings of fact especially when those findings are based on an evaluation of credibility and demeanor."⁽¹²⁾ "Especially" does not mean "only." Affording deference to a trial court's credibility determinations may be more critical - thus "especially" - but the fact remains that it is traditionally the role of the trial court to resolve issues of historical fact, whether or not credibility and demeanor determinations are involved.

It is true that Guzman focused on the need to defer to a trial court's determinations of credibility and demeanor and observed that the amount of deference given to mixed questions of law and fact often turn upon which actor is in a better position to decide the issue, but those pronouncements were made in the context of a case in which the key issue was how to decide certain application-of-law-to-fact-questions.⁽¹³⁾ Guzman did not purport to hold that historical fact issues could be reviewed de novo if credibility and demeanor considerations were absent.

Moreover, Guzman relied heavily on United States Supreme Court precedent,⁽¹⁴⁾ and the Supreme Court has spoken on this issue. In Anderson v. Bessemer City, the Supreme Court held that appellate courts should review a trial court's determination of historical facts under a deferential standard, even if that determination was not based upon an evaluation of credibility and demeanor:

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 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. 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.⁽¹⁵⁾

The Supreme Court argued that there were good reasons for giving the trial court deference on the facts, even absent credibility determinations:

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 courts of appeals would very likely only contribute 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.'" [Citation omitted]. 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.⁽¹⁶⁾

We agree with the Supreme Court's analysis of the issue. Trial courts are the traditional finders of fact, and their determinations of historical fact are entitled to deference. The Court of Appeals correctly employed a deferential standard of review of the trial court's resolution of the historical facts from conflicting affidavits. The judgment of the Court of Appeals is affirmed.

KELLER, Presiding Judge

Date delivered: October 23, 2002

Publish

1. The statute provides:

Motions to suppress evidence ­ 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.

2. Appellant offered his own affidavit while the State offered the affidavits of several narcotics officers.

3. 988 S.W.2d 230, 233 (Tex. Crim. App. 1999).

4. Manzi v. State, 56 S.W.3d 710, 716 (Tex. App.­Houston [14^th Dist.] 2001).

5. Id. at 716-719.

6. Appellant does not raise a ground claiming that the trial court erred in conducting the motion to suppress hearing solely by affidavits. Nor does he complain about the trial court's failure to issue findings of fact even though such findings were requested.

7. 988 S.W.2d at 231.

8. Id.

9. Id.

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

11. Kober, 988 S.W.2d at 233.

12. 955 S.W.2d at 89 (emphasis added).

13. Id. at 87.

14. Id. (citing Miller v. Fenton, 474 U.S. 104 (1985) and Ornelas v. United States, 517 U.S. 690 (1996)).

15. Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573-574 (1985) (emphasis added).

16. Id. at 574-575 (ellipsis in original).