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Burden of Proof

Determining who has the burden of proof is critical because it controls the default when not

enough facts have been developed to make a determination of the question at issue. For example, it

is the defendant’s burden to show that he or she had a privacy interest in a place that was searched.

Accordingly, unless there is some evidence to justify a privacy interest finding, questions regarding

the reasonableness of a search are premature and irrelevant. However, after the trial court has

found the defendant’s proof credible, the burden shifts to the state to show that the search was

reasonable.

Generally, the burden of proof on suppression issues and preliminary questions concerning

admissibility is merely by a preponderance of the evidence.

4

Accordingly, trial court findings are

assumed to be by a preponderance in the absence of some indication to the contrary. However,

certain issues, such as the voluntariness of consent to search, must be proven by clear and

convincing evidence.

5

Findings on these issues should reflect that higher standard of proof.

Phraseology

Findings may be phrased in several commonly accepted ways, such as “The court finds credible

Smith’s testimony that Jones coughed,” “The court believes Smith’s testimony that Jones coughed,”

and “The court finds that Jones coughed.”

Global Credibility Findings and Inconsistent Credibility Findings

Nothing prevents the trial court from making a global finding that a particular witness has given

credible testimony and that all factual assertions are true. However, these should probably be

followed by more specific findings concerning the dispositive facts testified to by that witness.

Moreover, care should be taken to avoid global findings when there are internal inconsistencies in

the witness’s testimony concerning dispositive issues, such as when the witness changes testimony

in some manner on cross-examination. Likewise, care should be taken to avoid global findings on

more than one witness where similar inconsistencies are present.

Findings require you to know something about your case—specifically, the legal issues to which they

apply, the burden of proof, the facts deemed relevant to the legal issues, and how much discretion

the trial court has to weigh those facts in applying the legal standard.

Although proper findings may be difficult to draft, they are critical to appellate review. Making the

effort to do it right the first time may help you to avoid either a remand for supplemental findings or

an adverse judgment.

t

(Endnotes)

1 Norman, Douglas,

Justifying the Ruling, How to Draft Clear and Effective Findings

, 77

T

ex

. B. J. 947,

981 (2014).

2 Douglas K. Norman has been an appellate prosecutor with the Nueces County District Attorney’s Office for the

past 14 years. Before that he served as chief staff attorney for the 13th Court of Appeals. He is a 1987 graduate of

the University of Texas School of Law.

3

State v. Elias

, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011).

4

York v. State

, 342 S.W.3d 528, 543 (Tex. Crim. App. 2011);

Vinson v. State

,

252 S.W.3d 336, 340 n.14 (Tex. Crim. App. 2008) (citing Tex. R. Evid. 104(a)).

5

State v. Ibarra

, 953 S.W.2d 242 (Tex. Crim. App. 1997).