Gulf Insurance Co. v. Chad Hennings ( 2007 )


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                This opinion has been withdrawn per order of the Tenth Court of Appeals.

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    IN THE

    TENTH COURT OF APPEALS

     

    No. 10-04-00345-CR

     

    ANTONIO SERRANA,

                                                                          Appellant

     v.

     

    The State of Texas,

                                                                          Appellee

     

     

       


    From the County Court at Law No. 2

    Johnson County, Texas

    Trial Court No. M200301848

     

    CONCURRING  Opinion


     

              The discussion of Tarvin in the majority opinion will be difficult for many readers to reconcile, creating confusion and chaos, and could be considered misleading if it is not properly explained.  State v. Tarvin, 972 S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d).  Tarvin is not a particularly good case to discuss in this opinion because the holding of Tarvin was based on a motion to suppress that was granted as distinguished from those cases in which a motion to suppress has been denied.  This distinction makes all the difference in the world.

              This distinction is probably why neither Serrana nor the State cite Tarvin in their briefs.  The analysis that applies to the facts when a motion to suppress has been granted versus when the motion has been denied is the same.  The distinction between Tarvin and the other cases is not about the facts; but rather, it is about the related standard of review of the trial court’s ruling.  Thus, the “facts” of the two cases could be identically the same, in the cold appellate record, and we could have two different results.  And based upon the applicable standard of review, both decisions could be properly affirmed.  Because we are reviewing issues on which the trial court had to evaluate credibility of the witnesses, our standard of review is an abuse of discretion.

              This confusion could easily be avoided if we simply stayed focused on the issues and addressed the parties’ arguments under the proper analysis related to motions to suppress that have been denied.  Tarvin is just not good precedent for a fact-intensive discussion on this issue.  It does not fit the analysis that is appropriate for this case.

              Notwithstanding the confusion created by the Court’s effort to compare the facts in Tarvin with the facts of this case, the majority does get to the correct result.  Accordingly, I concur in the judgment affirming the decision of the trial court to deny the motion to suppress and thus affirming the trial court’s judgment.

     

                                                              TOM GRAY

                                                              Chief Justice

     

    Concurring opinion delivered and filed February 15, 2006

Document Info

Docket Number: 10-06-00192-CV

Filed Date: 7/11/2007

Precedential Status: Precedential

Modified Date: 9/10/2015