Lead Opinion
OPINION
delivered the opinion of the Court
This case concerns a pre-trial suppression hearing in which the trial court relied upon an unsworn police offense report in ruling that the deputy had probable cause to arrest appellant. After the trial court denied his motion to suppress, appellant pled guilty to possession of marihuana. The court of appeals reversed, concluding that the trial court erred in considering the unsworn report; therefore, the State failed to produce any evidence at the suppression hearing to support appellant’s arrest.
I.
Appellant filed a pre-trial motion to suppress evidence concerning his arrest, alleging that Deputy Halcomb searched his truck without a warrant or probable cause. Appellant testified at the hearing for the limited purpose of showing that his arrest was made without a warrant. The prosecutor did not cross-examine appellant, and he offered no live testimony. Instead, the prosecutor offered only Deputy Halcomb’s unsigned, undated, and unsworn police report and gave a verbal summary of its contents to support his position that the officer had probable cause to search appellant’s truck. Appellant objected to the admission of the report (1) as a violation of
That the report submitted by Deputy Halcomb and entered into evidence is credible, and the Court accepts as true the submission of his offense report regarding his observations of the defendant and his conversations with the defendant.4
Following the denial of his motion to suppress, appellant pled guilty to possession of less than two ounces of marihuana. The trial judge deferred the adjudication of his guilt and placed him on community supervision for twelve months.
On appeal, appellant argued that the trial judge erred in denying his motion to suppress because the arrest report was inadmissible. The court of appeals agreed, holding that in a suppression hearing, Texas Code of Criminal Procedure article 28.01, § 1(6), permits the trial court to determine the merits of a motion based on the motion itself, upon competing affidavits, or upon live testimony.
In this case, the State failed to accompany its proffered documentary evidence with either some form of affidavit or live, sponsoring witness testimony. It is not enough for the State to ignore the requirements of Article 28.01(6), and merely read a police report to the trial court and then tender it — unsigned, undated, and unverified — as was done here.6
Because the arrest report was the only evidence the State offered to establish probable cause to search appellant’s truck, the court of appeals concluded that there was no basis for the trial court to deny Appellant’s motion to suppress.
II.
First, we address the State’s contention that the court of appeals erred by addressing an issue that was neither preserved in the trial court nor raised on appeal. Preservation of error is a systemic requirement on appeal.
To properly preserve an issue concerning the admission of evidence for appeal, “a party’s objection must inform the trial court why or on what basis the otherwise admissible evidence should be excluded.”
Straightforward communication in plain English will always suffice.... [A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to under-stand him at a time when the trial court is in a proper position to do something about it.15
The objection must merely be sufficiently clear to provide the trial judge and opposing counsel an opportunity to address and, if necessary, correct the purported error.
The State contends that appellant’s objections to the admission of the arrest report at the suppression hearing were to “hearsay, confrontation and the lack of a sponsoring witness.” The State further claims that these are not the arguments on which the court of appeals based its specific holding — the “unpreserved issue that the document was inadmissible because it was unsworn.” The State points out that there are many examples of sworn statements that are hearsay or are not proffered by a competent witness;
Appellant, on the other hand, argues that his objections were specific enough to put the trial judge on notice as to the nature of the complaint. He focuses on the last sentence of his objection: “[T]here’s no basis for putting that document into evidence or having any evidence that’s not proffered by a competent witness.” Appellant argues that the term “competent witness,” although not identical to “oral testimony” by a live, sponsoring witness as provided in art. 28.01, § 1(6), put the trial judge on notice of his specific objection.
The exchange between appellant’s counsel, the prosecutor, and the judge was as follows:
State: We do have Deputy Halcomb’s Offense Report showing the reason for the stop.
Appellant: Judge, I would object to it as hearsay. I object to it under Sixth Amendment Confrontation Clause. I object to any evidence.
State: As to the objection—
Judge: You’re objecting to State’s Exhibit 1 [the offense report]?
Appellant: My objection to any hearsay testimony from the Prosecutor. I object under Crawford. I’ll object under the Sixth Amendment of the Constitution of the United States. I’ll object under the Texas Constitution as to my right to confront and cross-examine witnesses against my client. Object that there’s no basis for putting that document into evidence or having any evidence that’s not proffered by a competent witness.
Within this context, the question is whether the trial judge and prosecutor understood that appellant was objecting to resolving the motion to suppress based on hearsay information contained in an offense report made by a non-testifying officer. We think that they did. Under the Lankaton test, the plain meaning of appellant’s objection is clear: he was objecting to the police report as hearsay, but also to the fact that it was unaccompanied by any “competent” sponsoring witness testimony or affidavit. Although appellant did not specifically cite art. 28.01, § 1(6), it is clear that he was objecting to the trial judge relying on Deputy Halcomb’s report because that officer was neither present to testify to the truth of its contents nor had he previously sworn to its truth by affidavit.
The prosecutor obviously understood appellant’s objection because she responded appropriately: Hearsay is admissible in a pre-trial suppression hearing; the Confrontation Clause does not apply to a pretrial suppression hearing; and a suppression hearing deals only with preliminary issues of the admissibility of evidence, not sworn, cross-examined testimony. The trial judge, in admitting the offense report, verbally agreed that the suppression hearing was simply to determine the admissibility of evidence at a later trial. Under these particular circumstances, we conclude that both the trial judge and the prosecutor understood the legal and factual basis for appellant’s objection. We overrule the State’s first ground for review and conclude that the court of appeals properly addressed the merits of appellant’s claim.
III.
We turn now to the State’s second ground for review: May a trial judge base his pre-trial suppression ruling on the contents of an unsworn police report? In an appropriate situation, he may.
A hearing on a pre-trial motion to suppress is a specific application of Rule 104(a) of the Texas Rules of Evidence.
questions are determined in a pre-trial hearing or at some time during trial.
The court of appeals’s holding turned on its reading of art. 28.01, § 1(6), of the
Texas Rules of Criminal Procedure. That rule reads as follows:
(6) 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.
In Hicks v. State,
In Boykin v. State [818 S.W.2d 782 (Tex.Crim.App.1991) ], we held that “ ‘[wjhere the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is notfor the courts to add or subtract from such a statute.’ ” Therefore, when interpreting a statute, “we ordinarily give effect to that plain meaning.” But we have acknowledged an exception to this rule: “where application of a statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, we should not apply the language literally.” “If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous,” then it is appropriate to seek the aid of extratex-tual factors to develop a reasonable interpretation of a statute. 25
Thus, we must look first to the specific words in art. 28.01 to determine its meaning. The statutory rule states that a motion to suppress “may” be resolved by considering different possible means of acquiring information. The rule does not state that the motion “shall be” or “must be” resolved by these specific means.
Because the legislature carefully used the term “may” throughout art. 28.01 when it intended discretionary acts and procedures and used the terms “must” or “shall” when it intended mandatory acts or procedure,
Finally, we must determine whether the trial court abused his discretion by relying upon this particular unsworn hearsay document. If the source and content of the hearsay document were unreliable, then the trial court did not adequately perform his “gatekeeper” function. In this case, we conclude that Officer Halcomb’s offense report contains sufficient indicia of reliability to serve as the factual basis for the trial court’s ruling. The offense report includes appellant’s name, correct offense date, and specific information that coincides with the same basic information to which appellant testified at the hearing.
In United States v. Matlock, the Supreme Court held that in a suppression hearing “the judge should receive the evidence and give it such weight as his judgment and experience counsel.”
Art. 28.01, § 1(6), comports with Mat-lock. The trial court may conduct the hearing based on motions, affidavits or testimony, but there is nothing in the statute to indicate that it must. It is merely an indication that such hearings are informal and need not be full-blown adversary hearings conducted in accord with the rules of evidence.
Significantly, appellant did not argue that Deputy Halcomb’s offense report was, in any way, unauthentic, inaccurate, unreliable, or lacking in credibility. Appellant did not contest the accuracy of the facts within that offense report; he argued only that the report could not be considered without the shepherding wings of a sponsoring witness or affidavit. Had appellant complained about the reliability, accuracy, or sufficiency of the information supporting the trial judge’s ultimate ruling on the motion to suppress, this would be a very different case.
The Court of Appeals was mistaken in concluding that art. 28.01, § 1(6), mandates that all information considered by a trial judge must be accompanied by affidavit or testimony. Accordingly, we reverse the judgment of the court of appeals and affirm the trial court’s judgment.
Notes
. Ford v. State,
. The State's two grounds for review are
(1) May a court of appeals decide an issue based on an argument that was not made in the trial court? and
(2) May a trial court base its ruling on an unsworn police report offered into evidence at a pre-trial suppression hearing?
. The prosecutor also stated that she had tried to contact Deputy Halcomb, and she would be "just fine” with having him testify if he arrived in time. The prosecutor noted that “the State does expect Deputy Halcomb to be subpoenaed and would be at trial and will testify to what is in his report,” but this hearing was, as the trial judge had stated, simply a hearing “to determine the admissibility of the evidence" that the deputy would testify to at trial.
. Ford,
. Id. at 625.
. Id.
. Id. at 625-26.
. Haley v. State,
. See id. (“Because we have held that preservation of error is a systemic requirement that must be reviewed by the courts of appeals regardless of whether the issue is raised by the parties, our inquiry into whether Haley properly preserved this alleged error is appropriate.”).
. See Jones v. State,
. Id.
. Cohn v. State,
. See Rivas v. State, 275 S.W.3d 880, 887 (Tex.Crim.App.2009).
.
. Id. at 909.
. Reyna v. State,
. Lankston,
. See, e.g., Sturgeon v. State,
. TexR. Evid. 104(a) (“Questions of Admissibility Generally — Preliminary questions con
. See Granados,
Should the exclusionary law of evidence, "the child of the jury system” in Thayer's phrase, be applied to this hearing before the judge? Sound sense backs the view that it should not, and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay.
Fed. R. Evid. 104(a), Advisory Committee’s Note (quoting Edward W. Cleary, McCormick on Evidence § 53 at 123 n. 8 (2d ed. 1972)). Indeed, Dean Wigmore relied upon the common-law distinction between preliminary proceedings and jury trials in stating that
in all interlocutory proceedings, even when responsory and not ex parte, the usual system of rules is ignored, again partly because of the subsidiary and provisional nature of the inquiry, but chiefly because there is no jury, and the rules of evidence are, as rules, traditionally associated with a trial by jury.
1 John Henry Wigmore, Evidence § 5 at 14 (1904).
The United States Supreme Court, in the context of the post-trial sentencing stage, noted the important distinction between eviden-tiary rules applicable to trials before a jury and the common-law principles concerning a judge’s discretion to use reliable sources of information to reach a "right result”:
Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law. Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders.... [Fed. R.Crim. Proc. 32] provides for consideration by federal judges of reports made by probation officers containing information about a convicted defendant, including such information "as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant!.]”
Williams v. New York,
. See Hernandez v. State,
.This "gatekeeping” role has been discussed most extensively in cases dealing with the reliability of scientific expertise. The Supreme Court in Daubert v. Merrell Dow Pharms., Inc.,
. This was true under common-law principles and has been brought forward under Rule 104(a). See McCormick, supra, note 20, § 53 at 123 n. 8; see also Hennessy v. State,
.
. Id. at 545-46 (citations omitted).
. In drafting art. 28.01, the Legislature obviously knew the difference in meaning between the terms “may,” "must,” and "shall,” because it used all three terms in the statute, depending upon its purpose. Article 28.01, § 1 begins with the phrase, “The court may set any criminal case for a pre-trial hearing!.]” That is, the trial court has the discretion to conduct a pre-trial hearing, but it may decline to do so. See Moore v. State,
.The court of appeals reasoned that the Legislature intended that the three methods specifically mentioned in art. 28.01, § 1(6), be the exclusive means by which to resolve pretrial motions to suppress. Ford,
. See Bishop v. State,
. State’s Brief at 8 ("We do not believe that the legislature's intent in art. 28.01 § (1)(6) was to dictate what type of evidence may not be admitted at a suppression hearing. Instead the statute was intended to give the trial court latitude to hold a non-traditional, informal hearing that need not necessarily included witnesses, testimony, or even formal evidence.”). The State also argues that construing the statute as an exclusive list would prohibit reliable evidence, such as a patrol car videotape. "A videotape from a camera mounted to a police officer's car that depicted the entire traffic stop from start to finish might provide the trial court with sufficient information to determine the validity of a traffic stop. But because a videotape is not a motion, affidavit or oral testimony, the Court of Appeals’ construction of the statute would not all allow the hearing to be 'determined on’ the videotape.” Id. at 9. See Carmouche v. State,
. See note 21, supra.
. See, e.g., United States v. Schaefer,
. See, e.g., Vanmeter v. State,
. Although the offense report is itself undated, it does contain a dated fax header: "From: Fannin County Sheriff’s Office Fax No_"
. Tex Penal Code § 37.10 (Tampering with Governmental Record); Tex. Penal Code § 37.09 (Tampering With or Fabricating Physical Evidence); see generally De La Paz v. State,
. See United States v. Sanchez,
. Tex R. Evid. 803(8) and 803(6).
. United States v. Matlock,
. Id. at 175-76,
. See, e.g., United States v. Stevenson,
.Judge Meyers, in his dissenting opinion, makes an excellent argument concerning whether Deputy Halcomb had probable cause to search appellant’s car. Unfortunately, appellant never appealed the issue of whether the facts contained in Deputy Halcomb's report established probable cause. His sole issue on appeal was:
The Trial Court erred in denying the Motion to Suppress as there was no evidence or insufficient evidence offered by the State of Texas to support the warrantless search of Appellant's vehicle; such alleged evidence being the inadmissible arrest report.
Appellant’s brief was devoted entirely to the form of the evidence submitted at the hearing, not to the underlying facts of the search. Neither at the motion-to-suppress hearing, nor on appeal, has appellant claimed that the facts set out in Deputy Halcomb’s report were either inaccurate or insufficient to establish probable cause to search.
Appealing though it may be, we ought not remand the case to the court of appeals on a claim that was never raised on appeal and never mentioned at the hearing on the motion to suppress.
. Appellant did not, either in the trial court, or on appeal, challenge the trial judge’s factual findings or his credibility determination.
Concurrence Opinion
filed a concurring opinion in which JOHNSON, J., joined.
Stare decisis compels me to join the majority opinion in this cause. It does not compel me to be particularly sanguine about it.
First, I agree that the court of appeals should have addressed the question of procedural default before reversing the appellant’s conviction on the merits. Under these circumstances, I usually prefer to remand a cause to the court of appeals to address that systemic issue in the first instance rather than to address it ourselves on discretionary review in the absence of a lower court ruling. But there is precedent for our doing so for the first time on discretionary review,
I also agree that precedent compels us to conclude that the trial court did not err to rely on the unsworn, unsponsored offense report in this cause. This conclusion flows from the fact that certain provisions of our Texas Rules of Evidence mimic the Federal Rules of Evidence in making questions of the admissibility of evidence the trial court’s prerogative to decide, unconstrained by the rules of evidence themselves;
There are other reasons to regret the current regime. For example, I do not understand the utility of dispensing with all of the Rules of Evidence for purposes of pretrial motions to suppress. Judge Meyers capably illustrated the potential drawbacks of this baby-with-the-bathwater approach in his dissenting opinion in Gra-nados.
Professors Dix and Dawson, to whose treatise the Court alludes at several points, have also questioned the advisability of our holding in Granados, noting that
hearings on motions to suppress evidence are different than other hearings to determine questions of fact preliminary to admissibility of evidence, in a way that makes application of rules [of evidence] appropriate. Issues regarding the legality of manner in which evidence is obtained are generally more complicated and require more extensive exploration — as a general matter — that [sic] issues presented by other evidentiary questions.
The issues at traditional hearings on motions to suppress implicate matters important for reasons other than their relationship to the truth-determining function of trials. Most obviously, of course, the issues are closely related to the goal of limiting law enforcement conduct. The need to assure fair and accurate resolution of the numerous difficult issues related to this collateral goal argues in favor of applying the rules of evidence.10
Such reservations aside, however, I agree that, after Granados’s undoubtedly accurate construction of the Texas Rules of Evidence (whether they represent good policy or not), “there is now nothing to prevent a trial court from deciding the
. Haley v. State,
. See Tex.R. Evid. 101(d)(1)(A) (“These rules, except with respect to privileges, do not apply in the following situations: ... the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104."); Tex.R. Evid. 104(a) (“Preliminary questions concerning ... the admissibility of evidence shall be determined by the court_ In making its determination the court is not bound by the rules of evidence except those with respect to privileges.").
. See Granados v. State,
. McVickers v. State,
. Olin Guy Wellborn III, Article I of the Texas Rules of Evidence and Articles I and XI of the Texas Rules of Criminal Evidence: Applicability of the Rules, Procedural Matters, and Preserving Error, 18 St. Mary’s L.J. 1165, 1200-01 (1987). See also Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 Texas Practice Series: Guide to the Texas Rules of Evidence § 101.1 (3rd ed. 2002), at 11 (“Since under Texas law a judicial determination to admit evidence in these cases is subject to redetermination by the jury, it was logical to require that the judicial determination be based solely upon admissible evidence.”).
. Tex Code Crim. Proc. arts. 38.22 § 6; 38.23.
. As Judge Meyers remarked:
[WJithout the evidentiary scaffolding provided by the Rules [of Evidence], all evidence is admissible, all evidence is relevant and the discretion wielded by the trial court is discretion incapable of abuse. * * * Under the majority's reading of the law, there is now nothing to prevent a trial court from deciding the merits of a suppression motion by relying exclusively on an unsworn police report or lab report. No longer must an expert witness at a suppression hearing be qualified. Tex.R. Evid. 702. Nor must the State continue to burden itself by marshaling witnesses who have personal knowledge of the events about which they are testifying. Tex.R. Evid. 602. Taking the majority's holding to its logical extreme, if the trial judge wished to save time, he could simply call himself as a witness and testify in support of the existence of probable cause by reading a newspaper account of the arrest into the record. Tex.R. Evid. 605.
Granados, supra, at 240 (Meyers, J., dissenting). Or, as I have observed in another context: “If a trial court is not bound by the rules of evidence, it may even refuse to admit plainly relevant evidence, since it is a rule of evidence that makes relevant evidence admissible (subject to certain exceptions) and irrelevant evidence inadmissible.” Vennus v. State,
.Especially in the context of pretrial suppression hearings that involve questions of probable cause or consent, evidence that might constitute rank hearsay if offered at the trial on the merits will not constitute hearsay at all. The State typically offers many out-of-court statements in this context, not to establish the truth of any assertions contained therein, but only to establish the reasonableness or permissibility of the officer’s investigative conduct. E.g., Campbell v. State,
. TexR. Evid. 403 & 404. These provisions make relevant evidence nevertheless inadmissible because it may be (in the case of the former), or is deemed to be as a matter of law (in the case of the latter), substantially more prejudicial than probative. Presumably, in a hearing before the court, the trial judge is capable of discounting the prejudicial potential, and focusing only on the probative value, of relevant evidence. Therefore, there would be no compelling reason to insist upon applying these particular evidentiaiy rules in a pretrial suppression hearing.
. George E. Dix & Robert O. Dawson, 42 Texas Practice: Criminal Practice and Procedure § 29.132 (2nd ed. Supp. 2008-2009), at 214.
. Granados, supra, at 240 (Meyers, J., dissenting).
. Whether the police report in this case does, in fact, establish probable cause is, I also agree, not an issue that is before us in this petition for discretionary review.
Dissenting Opinion
filed a dissenting opinion.
Appellant’s sole issue on his appeal to the court of appeals read as follows:
The Trial Court erred in denying the Motion to Suppress as there was no evidence or insufficient evidence offered by the State of Texas to support the warrantless search of Appellant’s vehicle; such alleged evidence being the inadmissible arrest report.
It seems apparent from Appellant’s pleadings that his issue embodied the traditional request to courts of appeals when they review the correctness of a suppression hearing: Is the record sufficient to affirm the trial judge’s ruling? Whitehead v. State,
Therefore, I agree with the majority that a trial judge may base a ruling at a suppression hearing on an unsworn arrest report; the court of appeals’s conclusion that the arrest report was improperly admitted is incorrect.
Deputy Halcomb did not have probable cause to believe that Appellant’s vehicle contained contraband; rather, he knew with certainty that Appellant’s vehicle contained evidence of the open container violation. It is clear from Deputy Halcomb’s arrest report that he knew Appellant had violated Texas open container law before commencing the search. Deputy Halcomb was unavailable to testify at the suppression hearing, but his arrest report stated that he stopped Appellant’s vehicle for towing a trailer without operational running lights. From outside the vehicle, he saw three opened beer cans in the passenger compartment. At that point, Deputy Halcomb informed Appellant “that the open beer cans were a violation of Texas open container law.” Tex. PeNAl Code Ann. § 49.031 (Vernon 2003). After that, the deputy searched for “additional alcohol.”
Upon seeing the three opened beer cans, the deputy knew that Appellant had violated Texas Penal Code Section 49.031. Id. And, importantly, there was no need to commence a search for “additional alcohol” because possession of one or more open containers in a single criminal episode is a single offense.
Finally, and most importantly, the majority concludes that the arrest report “contains sufficient indicia of reliability to serve as the factual basis for the trial
In conclusion, while I agree with the majority that the trial court was permitted to consider the arrest report, I feel that the court of appeals should now be given the opportunity to review the arrest report and decide whether it supports the trial court’s findings of fact.
. The trial court denied Appellant’s motion to suppress based upon the arrest report of Deputy Halcomb. The court of appeals, in performing its sufficiency analysis, reversed the trial court’s judgment, concluding that the arrest report was improperly admitted at the suppression hearing because the State did not offer an affidavit in support of the report. Ford,
. After a trial judge denies a motion to suppress and enters findings of fact, the first step for an appellate court is to determine whether the evidence, viewed in the light most favorable to the trial court's ruling, supports that court’s findings. Keehn,
. Though the court justified the search under the automobile exception, the conclusory paragraph contained language relating to the plain view exception: "that open alcoholic beverage containers were in plain view in the passenger compartment ... that the observation of the open alcoholic beverage containers in plain view gave probable cause to search the red GMC pickup....” We recently explored the distinctions between die automobile and plain view exceptions, and the plain view exception would not apply in this case. Keehn,
. The automobile exception does not require exigent circumstances. Maryland v. Dyson,
. Section 49.031 Subsection (b) states: "A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway.... Possession by a person of one or more open containers in a single criminal episode is a single offense.” Tex Penal Code Ann. § 49.031(b) (Vernon 2003).
. Section 49.031 Subsection (e) states: "A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear. ... If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.” Tex Penal Code Ann. § 49.031(e) (Vernon 2003).
. Neither the court of appeals nor the majority discussed whether the arrest report was legally correct to sustain the judge's ruling. Obviously, the majority feels their conclusion is sufficient to justify a judge ruling that a warrantless search is OK in a case like this. I find this to be significant and unfortunate.
. Once again, this would be exactly what Appellant requested in his point of error to the court of appeals.
. By concluding that a trial judge may base a suppression-hearing ruling on an unsworn police report, the majority now reaffirms a rule to which I was first opposed in Granados v. State,