¶1concurring and dissenting.
¶2Trial judges of Texas need no longer feel the weight of responsibility for their rulings on most mixed questions of law and fact because that burden will now be borne equally with courts of appeals and in some instances, with this Court. Today this Court holds that rulings of trial courts on most application of law to fact questions may be reviewed de novo by intermediate appellate courts and again by this Court.
¶3I.
¶4The majority does not agree with my interpretation of DuBoseand Carterand says that I have given those opinions a peculiar “gloss.” Majority opinion at 88. But I find myself in good company in light of the fact that the courts of appeals have interpreted DuBoseand Carteras I have.
¶5DuBoseand Carterinvolved review of a trial court’s ruling on a motion to suppress evidence. The court of appeals applied the correct law and considered all the relevant evidence in DuBose, but we granted review because the Court of Appeals “failed to afford deference to the trial court’s ruling.” Specifically, the court of appeals “engaged in a sort of de novo appellate review.” DuBose, 915 S.W.2d at 495. This we found improper:
At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses, as well as the weight to be given their testimony. The trial judge is also the initial arbiter of the legal significance of those facts. The court of appeals is to limit its review of the trial court’s rulings, both as to the facts and the legal significance of those facts, to a determination of whether the trial court abused its discretion. Even if the court of appeals would have reached a different result, so long as the trial court’s rulings are at least within the ‘zone of reasonable disagreement,’ the appellate court should not intercede.
¶6Id, at 496-97 (citations omitted). We emphasized “only when it appears that the trial court applied an erroneous legal standard, or when no reasonable view of the record could support the trial court’s conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion” should the appellate court intercede. Id. at 497-98. We vacated the judgment of the court of appeals in DuBose“[b]ecause [that court] conducted a de novo review of the record, instead of deciding whether the trial court abused its discretion in this manner.” These notions were reiterated in Carter, delivered the same day as DuBose. We vacated the judgment of the court of appeals in Carteron the ground that “we are not wholly satisfied [the court of appeals] was not conducting a de novo review for probable cause in this case.” Carter, 915 S.W.2d at 505.
¶7In the instant ease, the Court adopts a standard of de novo review and indicates that DuBoseand Carterultimately support such a view.
¶8II.
¶9Maybe part of the majority’s problem with DuBoseand Carterstems from a misunderstanding of what is meant by an abuse of discretion standard. The majority says I interpret DuBoseand Carteras “requiring the intermediate appellate courts to show almost total deference to a trial court’s ruling on an application of law to fact question.” Majority opinion at 89.1 do not know what is meant by the “almost total deference” standard. DuBoseand Carterhold that an abuse of discretion standard should be applied. That standard was described in the portions of those opinions quoted herein, and also by this Court in Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1990)(opinion on reh’g). It is a deferential standard in that the reviewing court is not to substitute its own view of the question so long as the lower court’s decision or ruling on the issue is a reasonable one. A case should not be reversed simply because the reviewing court disagrees with the conclusion of the lower court, assuming the lower court is within the zone of reasonable disagreement. As this Court explained in Montgomeryin the context of ruling on the admissibility of evidence under Rules of Criminal Evidence 403 and 404:
... Reasonable men may disagree whether in common experience a particular inference is available. Where there is room for such disagreement, an appellate court that reverses a trial court’s ruling on relevancy accomplishes nothing more than to substitute its own reasonable perception of common experience for that of the trial court. The appellate court effectively displaces the trial court, commandeering a function institutionally assigned elsewhere.
To avoid this anomaly, appellate courts uphold the trial court’s ruling on appeal absent an “abuse of discretion.” That is to say, as long as the trial court’s ruling was at least within the zone of reasonable disagreement, the appellate court will not intercede.
¶11Referring to two of the court of appeals decisions cited in footnote 2 of my opinion, the majority says these courts of appeals did not apply DuBoseand Carterproperly. These two courts reversed the trial court’s ruling on an application of law to fact question because “no reasonable view of the record could support the trial court’s ruling.” The majority says reversing a trial court’s ruling for these reasons amounts to a de novo review. Majority opinion at 88. The majority further asserts that DuBoseand Carterleft the door open to de novo review when no reasonable view of the record supports the trial court’s ruling. But that is what an abuse of discretion is all about— whether the lower court’s conclusion was reasonable. If no reasonable view of the record would support its ruling, then it has abused its discretion. This has long been our understanding of abuse of discretion. See Montgomery, supra. The majority’s opinion appears to call into question the very definition of abuse of discretion.
¶12III.
¶13The majority sets forth its new standard of review for appellate courts and this Court on certain mixed questions of law and fact:
[A]s 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. See, e.g., Villarreal, 935 S.W.2d at 139-41 (McCormick, P.J., concurring). 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. See id. The appellate courts may review de novo “mixed questions of law and fact” not falling within this category. See id. This Court may exercise its *95discretion to review de novo these decisions by the intermediate appellate courts. See id.
¶14Majority opinion at 89. While I might not necessarily disagree with these standards, I am disappointed in the lack of guidance given on how they apply and it is unlikely more insight will be forthcoming since the majority says “this is about as comprehensive a statement of the applicable standards that we can provide.” Id. For the benefit of the intermediate appellate courts, I will attempt to at least give my own interpretation of how I perceive the majority’s new standard.
¶15There will be little dispute on what constitutes historical facts. The ambiguity arises on what exactly is a mixed question of law and fact the resolution of which “turns on an evaluation of credibility and demeanor.” Of course the fact portion of nearly all mixed questions involve an evaluation of credibility and demeanor. For instance, in making a probable cause determination, the credibility and demeanor of the testifying police officer are surely factors in the trial court’s ruling. But they are not the only considerations in deciding whether there was probable cause. Even if the trial court (or reviewing court in conducting a de novo review) believes everything the police officer says that bears on the issue of probable cause, the court might nevertheless conclude that the facts testified to do not add up to probable cause. In other words, the ultimate determination of probable cause does not turn exclusively on the credibility of the witnesses, although it might be a factor. The same is not true of a situation like a ruling on a Batson claim. There, the trial court’s ruling will almost always turn exclusively on its evaluation of credibility and demeanor. If the trial court believes everything the prosecutor says about his nonraeial motives for striking the venireperson in issue, the trial court will almost always conclude that the strike was not racially motivated. This is the type of question I believe the majority is referring to in speaking of a mixed question of law and fact the ultimate resolution of which turns upon an evaluation of credibility and demeanor. But see Yarbrough v. State, No. 235-94 (Tex.Crim.App. June 11, 1997)(appel-late courts are not bound by rule of deference in Batson context to accept every ruling of trial court especially where there is no specific finding of fact) compare with id. (McCormick, P.J., joined by Keller, J., con-cumngXurging adoption of “almost total deference to a trial court’s ruling” in Batson context since resolution of Batson claims “turns almost solely on credibility and demeanor). By my reckoning, most mixed questions of law and fact are of the kind that will be subject to de novo review under the majority’s opinion.
¶16In view of this Court’s precedent since DuBoseand Carter, evidencing an unwillingness of a majority to follow those opinions, I agree that they ought therefore be overruled, if for no other reason than for the benefit of the courts of appeals which have been faithfully following them and must surely be in a quandary in light of Villarreal v. State, 935 S.W.2d 134 (Tex.Crim.App.l996)(plurality opinion). At this point, the courts of appeals need a definitive rule as to their task in reviewing mixed questions of law and fact. To the extent the majority opinion satisfies this void, I concur. But as to this Court’s role as a discretionary review court, I dissent to the majority’s compulsion to overrule Ar-cila and hold that this Court may and should conduct de novo reviews of our own.
¶17IV.
¶18Though Arcilawas still in its infancy, having only been delivered in 1992, it served this Court’s jurisprudence well and its precedence will be sorely missed. In Arcila, we *96declined to re-evaluate the voluntariness of the consent to search at issue there. Recognizing the parameters of our role on discretionary review, we emphasized that when the Court of Appeals “fairly evaluated the [issue], using the correct legal standard, considering all relevant evidence in the record, and affording proper deference to the trial judge as primary factfinder” then this Court has no further role:
... Our principal role as a court of last resort is the caretaker of Texas law, not the arbiter of individual applications.... Even if our own decision might have been different [from that of the court of appeals] on the question presented, we cannot accept the proposition that an appellate court’s judgment ought to be subject to reversal on such basis, at least when the evidence is sufficient to support it. Doing so only tends to undermine the respective roles of this and the intermediate courts without significant contribution to the criminal jurisprudence of the State....
¶19834 S.W.2d at 360-61. The respective roles of trial court, intermediate appellate court, and this Court as a discretionary review court become hopelessly indistinct when this Court begins conducting de novo reviews of the courts of appeals’ de novo reviews.
¶20For the reasons stated herein, I concur in limited part and otherwise dissent.
¶21. De novo review may ultimately result in the suppression of more evidence, given that defendants will now get two bites at the apple—and the second bite will be unencumbered by any deference to the ruling in the trial court. In other words, since the reviewing court won’t afford any deference to the trial court's ruling in conducting a de novo review, the defendant gets a wholly new opportunity to have the evidence suppressed.
¶22. The Court points to Ornelas v. United States, 59 Crim. L. Rep. (BNA) 2099, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), in support of adopting de novo review, but offers no discussion as to why that opinion is binding on state court appellate review. In Ornelas, the Supreme Court mandated de novo appellate review of a federal trial court’s findings on probable cause and reasonable suspicion. While we are bound by the Supreme Court's interpretation of the federal constitution, the holding in Ornelas does not appear to emanate from the United States Constitution, but, rather, from practical considerations on the appropriate standard of appellate review. 59 Crim. L. Rep. at 2102, 517 U.S. at-, 116 S.Ct. at 1662 (policy of deference would lead to "varied results” among courts; independent review is necessary to maintain control of and to clarify legal principles; de novo review unifies precedent); see also id. at 2103, at 517, 116 S.Ct. at 1662 (Scalia, dissenting)(noting that what standard of review has been applied to mixed questions of law and fact depends upon "practical considerations”). There is no indication in Ornelas that de novo appellate review is a constitutional rule, applicable on direct appeal of state convictions in those appellate courts. Compare Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)(declaring that independent appellate review of trial court’s finding of "actual malice" in cases governed by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), "is a rule of federal constitutional law”).
¶23Further, even if Ornelas could be viewed as requiring state appellate courts to conduct de novo review, it does not stand for the proposition that this Court, in our capacity as a discretionaiy court, should be conducting de novo reviews. Ornelas held that federal courts of appeals should review de novo a trial court’s rulings on probable cause and reasonable suspicion. The Supreme Court declined to conduct a de novo review itself, remanding the case to the court of appeals to conduct the review.
¶24. The majority opinion further confuses the role of this Court in relation to "reviewing” decisions of the courts of appeals. If courts of appeals can now conduct de novo reviews and so may this Court, do we review the court of appeals’ de novo review or do we simply bypass the court of appeals' opinion and conduct our own de novo review of the trial court’s ruling? The majority says it is reviewing the Court of Appeals decision by holding that the Court of Appeals erred in its application of the totality of the circumstances test and by applying an incorrect definition of probable cause. But normally, when this Court determines that a court of appeals applied the wrong test or wrongly applied the proper test, we vacate and remand for that court to properly apply the proper test.