While I sympathize with Judge Cochran's point that affidavits are not the best method on which decisions are based by the trier of fact, their use is expressly allowed to determine the merits of a motion to suppress evidence. Tex. Code Crim. Proc. art. 28.01, § 1(6). This creates the problem of determining credibility based on merely a piece of paper. An affidavit is a sworn statement. It is a written declaration of facts to which the declarant has sworn before an officer authorized to administer oaths. This oath functions to give the document credibility and makes the declarant subject to the penalty of perjury for false statements. However, in Granados v. State, No. 73,525, 2002 Tex.Crim.App. LEXIS 99 (Tex.Crim.App. May 8, 2002) (Meyers, J., dissenting), this Court intentionally removed the rules of evidence from suppression hearings. This means that Rule of Evidence 603, requiring witnesses to take an oath or affirmation, does not apply to suppression hearings. This also means that Rule 602, requiring evidence that the witness has personal knowledge of the matter, does not apply. As a result of Granados, the courts will see many more hearings based solely on summary reports, laboratory findings, and other unverified statements. Courts of appeals will have to review decisions that were made by the trial courts without the benefit of live testimony. Because trial judges in these situations are making decisions based only on affidavits or unverified statements and not on the credibility and demeanor of the affiant, they are in no better position to rule on the truth of these documents than would be the courts of appeals.

When a suppression hearing involves application-of-law-to-fact determinations, the trial court's fact determination is given deference if the decision was based on credibility and demeanor. In Guzman v. State, this Court said:

As a general rule, the appellate courts, including this Court, should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. The appellate courts, including this Court, should afford the same amount of deference to trial courts' rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. The appellate courts may review de novo "mixed questions of law and fact" not falling within this category.

955 S.W. 2d 85, 89 (Tex.Crim.App. 1997) (emphasis added). The question in this case is an application-of-law-to-fact issue. Did appellant voluntarily give police officers consent to search his hotel room? The decision depends on which affidavit you believe. Because the determination was made solely on the basis of the affidavits, it was not based on the credibility and demeanor of the witnesses and thus the court of appeals should be entitled to de novo review. Moreover, this Court conducted a de novo review in Guzman but is now saying that the courts of appeals should use a deferential standard of review. The reason for de novo review in Guzman was that the trial court was not in a better position to review the totality of the circumstances. Similarly, in this case, the trial court was not in a better position to review the affidavits.

I do not believe that courts of appeals should necessarily apply deferential review to trial courts' fact determinations that are based on affidavits alone. Deference is given to trial courts' factual determinations because they are in a better position to evaluate the credibility and demeanor of witnesses giving oral testimony. However, when there is no oral testimony and the trial court and the court of appeals are presented with identical evidence in the form of written documents, both are equally able to judge the reliability of the evidence. A de novo analysis by a panel of three judges from the courts of appeals is my preference. For this reason, I respectfully dissent.

Filed: October 23, 2002

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