*1 Appel- impropriety claim of was waived. ground for is
lant’s third review overruled. ground re- appellant’s As for second for view, find that our decision now discretionary
grant appellant’s petition for ground improvident. review on this 202(k). part ap- Tex.R.App.Proc. That pellant’s petition is therefore dismissed. first
Having appellant’s sustained review, judg- ground for we reverse the appeals ment of the court of and remand entry this trial cause judgment acquittal.21 P.J., J., McCORMICK, WHITE, concur in the result. GARCIA, Anthony Appellant,
Randall Texas, Appellee. The STATE No. 945-90. Texas, Court of Criminal En Banc. March 1992. Rehearing May Denied 1992. Houston, (on only), appeal
Allen C. Isbell appellant. Jr., Holmes, Atty., and J. Dist.
John B. Hudson, Atty., Hous- Harvey Asst. Dist. 793-794). brief, issue in this case is the We note the should the State contends we evidence, analysis harm sufficiency and a analysis com- court error a harm trial (See pp. inapplicable in context. State's brief mitted under Art. 28.10. *2 ton, Huttash, Austin, Atty., by the Robert State’s lant’s violent nature victim’s sister. Evidently, Appellant for the State. he also that believed mandatory appearance
had missed a court a had issued his and that warrant for ar- custody rest in connection with child charges. This turned out to be information ON OPINION APPELLANT’S PETITION Appellant though arrested false. was even FOR DISCRETIONARY REVIEW actually was issued him in no warrant for BENAVIDES, Judge. with the murder of his wife connection Appellant seeks to set aside his until nine hours after Sonora arrest- Murder about illegally conviction because seized ed him fact. erroneously from his was admitted photographs Meanwhile two were taken against him at trial in violation of article portraying police, of him each a 38.23 of the Code of Criminal Procedure. trial, bruise his abdomen. At the State He claims the El Appeals Paso Court of inju- contended that the victim inflicted erred to hold that the federal inevitable during with ry struggle Appellant, a and discovery doctrine exception is an testimony such support medical tended to exclusionary rule. See TEX.CRIM. Appellant challenged conclusion. admissi- (Vernon 1990). 38.23 in- PROC. art. bility pictures, together with of these stant is impression cause one of first in this accompanying testimony, upon the medical Court. ground they illegal were fruits of an overruled,
Appellant and separated objections his wife were His and arrest. were Pending jury conclusion their divorce in short order the him of convicted action, wife temporary punishment his was awarded Murder. His was assessed custody young But, during of their judge peni- son. the trial at confinement in the period visitation, Appellant boy tentiary forty years. took the to Florida in defiance order. His appeal appellant his com On renewed authorities, wife complained Ap- plaint pictures fruits of were the pellant soon was arrested in Miami illegal arrest made without “warrant extradited After Houston. lost he Appellant probable and without cause.” right to visit with his son altogether proper conceded that a basis for the seizure and, on October ar- formally when would existed a warrant raigned felony offense of Interfer- arrest, it did later issued for his but that ence Custody. with Child The next morn- photographs not exist when were tak ing his wife was found dead. The obvious decide en. The Court of did not homicide, beaten, victim of a had been she the time question probable cause at strangled and stabbed. Rather, that the it determined arrest. afterwards,
Soon inevitably Police would discov Webster Chief Reyes Appellant anyway, Sonora arrested at- at his ered and affirmed the conviction. torney’s police sought office. The him out 08-89-00242-CR Garcia No. (un Paso, 25,1990)
there in part difficulty App. July because had delivered — El locating young published opinion). granted for a his child time after We review discovering body. his wife’s But whether the doctrine inevitable Sonora decide charges discovery stat pending exception also knew of criminal is an to the Texas against Appellant exclusionary told rule.1 Appel- utory and was ground 1. We Our were have not addressed this issue before. er the of error because the facts sufficiently developed approach closest State, was in a footnote to not less, at trial. Neverthe Garza footnote, (Tex.Crim.App. plurality n. 1 1989) (plurality adopt portion opinion), lower a case in which declined opinion apply the held that lower court refused to "attenuation court’s which the attenuation However, ques inapplicable doctrine" article to the Texas 38.23. doctrine footnote, regarding same several rule. In the issue, cited in which the “inevitable was not and we refused to consid cases were say This is that the federal exclu- century For most of this it has been a not to inapplicable in Texas. law, rule is au- bulwark federal constitutional Clearly, just here as it does imposed by law of thoritatively decisional Mapp v. throughout the United States. Court, that evi- the United States *3 Ohio, 643, 1684, 81 S.Ct. 6 L.Ed.2d 367 U.S. government in by dence obtained viola- (1961). imple- only it need be 1081 But of Fourth rights by tion secured they by insofar as do not mented the States Amendment to the United States Constitu- exclusionary rules them- prescribe stricter may excluded on of the be demand selves. in aggrieved party against if offered him a proceeding. Weeks Texas, criminal through acting people of States, 383, 341, 232 34 58 U.S. S.Ct. L.Ed. decided representatives, their elected have (1914). however, years, 652 Over
Supreme Court has this exclu- constrained by or evidence obtained an officer [n]o excep- principle with a of any provi- number in violation of other tions, including the rule that evidence sions of the Constitution or laws Texas, or inevitably discover- of Constitution which would have been State America, of laws of the United States government ed absent constitutional against in shall be admitted evidence spite in may violation be received at trial of any case. trial of criminal accused Williams, 467 such violation. Nix v. U.S. 2501, 2509, 81 L.Ed.2d 38.23, statute, 104 S.Ct. This on its Art. V.A.C.C.P. (1984) doctrine). (inevitable discovery face, 377 requires the exclusion of absolutely States, Wong See also v. United 371 of Sun all evidence seized violation 407, 417-18, Amendment, feder- 487-88, and because the 83 S.Ct. 9 Fourth U.S. discovery not an doctrine is (1963) (independent doc- al inevitable L.Ed.2d 441 source prohibitions the Fourth Leon, exception to core of trine); United States 468 U.S. Amendment, only exception to the an but 104 677 82 L.Ed.2d S.Ct. rule, exclusionary mandate federal (1984) (good doctrine). faith ob- any exclude article 38.23 to discovery inevitable doctrine is of the United States tained violation This not, necessary even species of harmless error rule which Constitution wheth- implication, require a decision about violations holds constitutional inevitably questioned evidence would er inconsequential are seizure anyway. The Court been discovered admissibility, the out purposes of not when erred hold other- Appeals therefore to probably come of trial unaffected wise. rather the outcome illegality, but when unaf police investigation probably construing principal task Our Nix, n. 104 fected it. 467 at 443 place in Texas discover statute at n. 4. The rule has been S.Ct. 2509 Because jurisprudence. scheme criminal suppres applied Texas federal legisla enactment of our article 38.23 is an questions sion ture, will of represents the democratic adjust Texans, evidentiary articulated United States merely not remedy the extent that Texas law viola Court. made the courts to ment ex independent always, for the in the case provides an basis As tions of law. evidence, discovery may interpret, but the inevitable courts legislation, clusion reason, we while not For exception approved may the United States amend. upon impose exceptions liberty simply are Supreme Court is irrelevant. State, note, 1984); 629 (Tex.Crim.App. Vanderbilt v. discovery applied. We how doctrine" was ever, de (Tex.Crim.App.1981), cert. do article cases not discuss 723 these S.W.2d State, nied, Bell v. 724 S.W.2d L.Ed.2d 38.23 at all. See S.Ct. 72 (Tex.Crim.App.1986), denied 479 U.S. cert. exist notice the fail even to Some (1987); Dick rule, while oth of a ence State, (Tex.Crim.App. ey v. 716 S.W.2d law. rely solely constitutional on federal ers 1986); Wicker v. exclusionary rules, may permit testimony court-made as to oral confession exceptions statutory exclusionary (not create statutory exception) any within fairly rules. Unless a itself can statute be impeachment legisla would undermine read to exceptions, include no expressed tive determination Article 38.- may imported by judicial be fiat. Butler, 22.” at 198. See also Alfaro, 638 S.W.2d at expressly
Article 38.23 does contain an good faith for the reliance of law approach, two Consistent with this enforcement warrants officers issued appeals precisely considered courts face, magistrates.2 neutral On its how- presented the issue in the instant cause. ever, it contains sug- no others. The State Oliver v. *4 gests exceptions, especially that other ref’d); App. 1986,pet. Worth Dees v. — Fort imposed by those States Su- State, 209, (Tex.App.— 722 S.W.2d 213-14 preme Court on the federal Corpus 1986, ref’d). pet. Christi The Fort rule, should nevertheless be “found” im- Worth Court of considered a de plicit question, in the statute. Without it is challenge fendant’s admission of a imply often the case statutes more knife into evidence when the State failed to than say, especially together if read Oliver, introduce the arrest warrant. 711 with subject other laws on same or in determining S.W.2d at 443. After that an way such a as harmonize the law with unauthorized arrest had in warrantless fact requirements. constitutional But courts occurred, judicially the court refused greatest must take the care not to invent a amend “indepen article 38.23 to include the legislature statute of gave which the discovery” dent source” and ex “inevitable public no notice. ceptions to the rule. The context, a similar this Court concluded that to the ex adopt judicially declined to excep clusionary legisla created from a must evolve tion by 38.23, announced Court tive amendment to article and “not parallel where a Spe state statute existed. ruling our evidence is that the admissi cifically, we held federal rule al plain ble in direct contradiction word lowing impeachment criminal Likewise, defendants ing of the at 445. statute.” Id.
with confessions held, obtained violation of Corpus Christi to en rule, warning Fifth Amendment’s Har (b) 38.23, actment of of Article Subsection York, 222, 643, ris v. New 91 S.Ct. good exception that a faith to the exclu (1971), inapplicable to oral and, therefore, apply rule did not statements taken in violation of Article prob that evidence seized in the absence of 38.22 of the Texas Code Criminal Proce suppressed. able cause should dure, because our statute did not contem obliged jurists, implement As we are plate exception purposes impeach expressed legislature, not will.of State, ment. Butler 493 v. S.W.2d 190 suggestion keeps will it to itself. The (Tex.Crim.App.1973). Even when the stat reliably that some motive can be inferred eventually legisla ute was amended legislature from the failure of a to enact permit impeachment ture to under circum certain laws or to enact laws of a certain contemplated by stances similar to those tenuous, dangerous, kind but is not rule, the constitutional this Court declined supplants for it orthodox democratic insti- apply way init the same because it was judicial oligarchy. tutions with a narrowly drawn more than the federal rule. State, 891, Except unusual circum 638 897 S.W.2d
Alfaro stances, therefore, best to effectuate Crim.App.1982). reasoned that it is We “[T]o 1987, legis- objective good faith reliance a war- the statute was amended exception, magistrate lature to include its sole which reads based on rant issued neutral probable as follows: cause. 18, (b), See Act of June provisions Art. 38.23 V.A.C.C.P. It is an of Subsec- (a) ch. Serv. 2208 § 1987 Tex.Sess.Law of this Article that the evidence was (Vernon). acting obtained a law enforcement officer 800 legislative plain further not intent evidenced consideration inconsistent with State, of statutes. Camacho v.
language opinion. (Tex.Crim.App.1989); 765 S.W.2d 433 State, 769 see also Patterson v. S.W.2d McCORMICK, P.J., concurs in result. Otherwise, (Tex.Crim.App.1989). 940 BAIRD, JJ., WHITE and dissent. legislature’s invading prov courts risk reading ince into the law that which Judge, CLINTON, concurring. Halsted, 147 Ex Parte not there. clearly 38.23, Y.A.C.C.P., genesis The of Article 479, 482 Tex.Crim. 727a, is former article derived from Acts (1944); see also Miles Tex. 157 (Act). p. Leg., Ch. 39th § Crim. significant preceded Act two Accordingly, rules of established one, Weeks United judicial decisions: that, require generally construction where States, 58 L.Ed. statute, express exception exists in a other, Welchek v. (1914);1 except all statute must cases (1922).2 93 Tex.Cr.R. S.W. McIver, ed. Ex Parte among in the One need not browse files 1979); see also Op.] (Tex.Crim.App. [Panel *5 Legislative Library to Research find indicia Richards, 166, 168, 301 State 157 Tex. intent; Legislature legislative of the ex- (1957). “find” Because we pressed declaring its own determination in discovery exception no inevitable article admitting viz: exception, in no terms 38.23, unwilling, we thus as the lower are “The that there has been used fact been, to court should have create one State evidence against this citizens of Legislature has judicial Certainly, fiat. the the in violation constitu- obtained prerogative to Article to amend 38.23 of is there now that and specific exception enact to its rule if it of expressly forbidding no statute time, however, Until we chooses. same, emergency an im- and creates written, must enforce the statute as exclud necessity....” perative public evidence, ing illegally all with the obtained single exception as set out in the statute. Act, supra, 2.3§ Contrary expressed by of to notion judgment
The of the Court 1- Judge concurring opinion at Miller in his reversed and the cause remanded there States, per- originated transgresses supra, otherwise no rule 1. Weeks United of courts, in federal tinent. viz: the conclusion that “We therefore reach question in taken from the house letters were pos- question is of the [W]hen of of the accused an official any property whose of the accused of session office, States, acting color of his gives custody, ownership, or creation him rights of direct of the constitutional violation crime, weight solving the method or it defendant; having made seasonable proferred testimony by which such manner return, application was heard for their which by any came before the court cannot be raised court, passed in- there was and attempted application section art. su- of refusing application a volved in order pra, may be determined rules but of rights ac- of of the denial cused, the constitutional general and have become evidence which are and the court should restored wisdom of the courts of all civi- in the fixed lized holding them these letters to the accused. objection If be countries. there sound trial, permitting use and their testimony has been otherwise material which prejudicial was committed." error think possession person or in the or on the found Id., 58 L.Ed. U.S. at 34 S.Ct. at accused, objection such must rest home throughout opinion (emphasis here and reason than that the accused on some better indicated). otherwise is mine unless entry taking consent to its or did not of premises." nothing art. 1 such in section "We believe Id., Constitution, supra, S.W. at 529. can be invoked testimony criminal case prevent the in a use bill, Legislature passed a related 3. The same prem- physical on the found facts I, 9; crime, reproduced § Article of which materi- section which are ises one accused per case, “any penal it a offense prevent 2 made oral section al in such nor to the issue officer, ranger, peace to search finding or state testimony son or such which fact of 2, that “mere MILLER, absence from the Judge, Code does concurring. not serve to emasculate a doctrine that majority today proffers opinion
previously
law,”
existed in the common
which, ironically,
precisely
that which
certainly
this Court would
“superlegis-
be
it ostensibly
prevent:
seeks to
it substi-
(his
lating”
term) to introduce a “doctrine”
tutes the unfettered philosophy
judi-
incorporated
ciary
that was
explicitly
Legislature.
for the true intent of the
or im-
Simultaneously
plicitly
it renders
when in
stare decisis
Supreme
1914 the
Court
meaningless
again
my-
as
court is once
created the federal exclusionary rule in
opically
path
hypertechni-
led down the
Weeks, supra, or when in
Legisla-
1925 our
cality so
judi-
decried
those
outside
ture
created the
ciary. In
doing,
ignores
reality
so
rule in the
Judge
Act.
Miller does not
tripartite
our function within a
form of
demonstrate that the “doctrine” was ever
government. While it is not the role of the
known to the
England,
common law of
judicial branch to
engage
“super-
either
by his own
admission the
legislating”, as the term has come to be
adopt
did not
and apply it until
1984 Nix
known,
hypersensitive
or to be
to the will
Williams,
of a crime-tired and punishment-seeking
public; it is this Court’s role to construe
our Code of Criminal
Procedure
a man-
Furthermore,
designed
the Act was
ner that simultaneously
pro-
balances the
implement protections guaranteed
first
tection of the defendant and the interests
I,
foremost
Article
9 of the Texas
§
justice
in contemporary society.
prop-
A
emergency clause,
Constitution. See
ante.
erly
analysis requires
balanced
us to inter-
The fact
Judge
yet
remains that
Miller has
pret
Legislature;
the intent of our
in this
*6
any opinion
to cite
of this
construing
Court
case
analysis
such
calls for a continuation
Article 38.23
exceptions
to admit
to those
application
of the “inevitable dis-
protections, and unless and until there is
covery” doctrine in search and seizure law.
significance,
one of
the
rule of
Admittedly,
specif-
Article 38.23does not
construction for
opinion opts,
which his
in
ically
exception
carve
known as “inev-
n.
application.
has no
discovery” in
itable
the manner which the
observations,
With those
join
I
opin-
subsequent statutory
“good
addition of the
ion
judgment
and
of the court.
exception
faith”
did1. The term “inev-
residence,
private
habitation,
place
bring
actual
of
holding
and to
our State in line with the
business,
place
of
personal posses-
Leon,
897, 905,
or
in United States v.
468 U.S.
any person,
having
sions of
without
first ob-
S.Ct.
82 L.Ed.2d
law;"
tained a
required by
search warrant as
opinions
consistently
Past
of this Court had
$500,
section 3 authorized a
doctrine,
fine not to exceed
“good
relying
failed to
faith”
months,
or confinement for not more than six
unbending application
instead on an
of Article
emergency
or both. The
clause relied
on “The
E.g.
38.23.
Green v.
711-
615
(McCormick,
people
fact that
are not secure in their
(Tex.Crim.App.1980)
J. dis-
homes,
persons,
papers
possessions
and
from
senting).
interpretation
Faced with such an
of
unlawful
and unreasonable
seizures
and
statute,
Subsection b was added
correct
Leg.,
p.
Acts
searches[.]”
39th
Ch.
problem.
specific
addition
357.
not,
believes,
exception
majority
as the
in-
4b,
That bill became former articles 4a and
departure
tended to be the exclusive
from the
repealed
rule,
C.C.P.1925. It was
in
however.
but rather is
a clarification
intended as
"despite
But it has been noted that
the flood of
adding
acknowledging
provision
and
a
where
727a,
legisla-
reversals under former article
historically
this Court had
failed to do so. That
repeal
ture refused to
rule and
addition reads as follows:
instead reenacted it with
a minor narrow-
(b)
provisions
It is an
to the
Dawson,
ing
scope.”
of its
Stater-Created Exclu-
(a)
Subsection
of this Article that the evidence
sionary
Study
Rules in Search and
A
Seizure:
was obtained
a law enforcement officer
Experience,
the Texas
59 TexX.Rev.
at 201-
acting
good
objective
in
faith reliance
a
magistrate
warrant issued
a neutral
based
1. The
probable
addition of Subsection b of Article 38.23
cause.
attempt by
Legisla-
38.23(b) (Vernon
can be seen as an
the Texas
art.
Tex.Code Crim.Proc.Ann.
past rulings
added).
ture to
supp.1988) (emphasis
language
both correct
of this Court
discovery” in
fashion
With
itable
fact came
and ‘attenuation’ doctrines.”
re-
adoption
spect
after the
of the 1965
of inevitable dis-
some time
doctrine
Supreme
covery,
mere
term
Code. But the
absence of the
United States
Court
explained
adopted
emasculate
the inevitable dis-
from the Code
not serve to
previously
covery concept
[supra
existed in the
a doctrine2
Nix
]:
This
common law3.
Court has indicated
prosecution
“If the
can establish
concept of
the doctrine existed
preponderance
of the evidence
long
before
United States
ultimately
inevitably
or
information
adopted
applied
“inev
Court
the term
have
would
been discovered
lawful
Williams,
discovery” in
itable
Nix v.
means ...
then the deterrence ratio-
104 S.Ct.
nale has so little
evi-
basis
(1984). E.g. Miller
dence should
received.”
be
[Citations
(rationale
(Tex.Crim.App.1984)
omitted].
although
used
inevitable dis
doctrine
term
applied
previously
This court has
used);
State, 629
covery not
Vanderbilt
principle
discovery to
of inevitable
testi-
(Tex.Crim.App.1981),
cert.
discovery
mony of
whose
witnesses
den.,
illegal state action.
imminent absent
See
(1982)(same);
Judge
L.Ed.2d 169
Mar
See
Vanderbilt,
722;
supra at
Wicker [su-
Teague, Applications
the Exclu
vin O.
(Victim’s
pra
body would
been
]
(1982)
Rule, 23
S.Tex.L.J.
regardless
recovered
of the information
approval
(holding
implies
Vanderbilt
furnished
defendant’s second oral
Doctrine).
Discovery
Inevitable
(“Where
statement);
[supra
Dickey
evi-
]
opinion
As
noted
Garza
a defendant’s con-
dence obtained after
State:
violated,
rights
been
if
stitutional
Presiding
pointed
prosecution
out
can establish information
As
former
work,
preponderance
the evidence that
Judge
an earlier
Onion
ultimately
inevitably
has never
Article 38.23
the information
held that
absolutely prevents
application
would have
discovered
...
lawful
means,
application
then the deterrence rationale has
the several
that have
little basis that the evidence should
so
*7
received.”) [Emphasis
origi-
years.
the
evolved over
Vanderbilt
(Evidence
nal];
[supra]
the
admissible
\supra ],
this
noted that
Bell
commonly
exceptions
the rationale of inevitable dis-
advanced
“[t]hree
cases, or
covery).
the ‘inde-
In none of the above
to the
rule include
researched,
source,’
did
discovery,’
Arti-
pendent
any
‘inevitable
others
issue,
any
the
decision on
implies
other
to the Article
this or
other court’s
used
that
exist;
modify
legislation is to
only
"good
effect of
faith" is one
and the
the
it states
caselaw,
existing
shall control unless
exceptions.
the statute
those
unconstitutional.”)
(plurality); Watson v.
it is
State,
619,
1976)
appellate
(Tex.Crim.App.
courts
Numerous decisions
Texas'
S.W.2d
622
532
prior
(particularly
strictly
in area
(applied
the
as no cases
have held that once a court
statute
code).
greater
jurisdiction)
interpreted
highest
adoption
penal
new
The
has
to
court of
statute,
inaction,
part
subsequent
more certain
cor
inaction on the
interval of
interpretation.
Id.
legislature
approval
to
of that court’s
amounts
rectness
State,
interpretation.
150 Tex.Crim.
Lockhart v.
State,
780,
(Tex.Crim.App.1986),
164,
(Tex.Crim.App.
724
793
S.W.2d
3. Bell
200 S.W.2d
167-168
den.,
1947)
Rehearing);
t.
(Opinion on
Gar
Motion for
cer
910,
State,
State,
(1987);
Dickey v.
L.Ed.2d 860
716
93
140 Tex.Crim.
145 S.W.2d
cia
(di
Assoc.,
(Tex.Crim.App.1986)
1940);
505
(Tex.Crim.App.
S.W.2d
Jensen
181-182
scussi
(Tex.
discovery” although
Bullock,
ng
existence
“inevitable
601-602
Inc. v.
incorrect);
Gibbs,
1976);
appeals’ application was
Moss v.
370 S.W.2d
(Tex.Crim.App.1984),
Green,
141-142
1963);
(Tex.App.—
667 S.W.2d
Wicker
Aven v.
statute more than the Fourth Amendment to the United States
Constitution. As this previously Court has held, law, law, like federal does not
require object defendant to order to protections invoke 38.23. of Article McHENRY, Appellant, Yan Renate *8 Polk v. 275-276 (Tex.Crim.App.1987)(provisions of Article Instead, automatically invoked). 38.23are Texas, Appellee. STATE position State that justify
it is the must No. 0033-92. imagine case. It every is difficult to defendant if the how a will be harmed Texas, Criminal Court of standard, State, by preponderance must En Banc. independently always prove would have April 1992. out in pointed unearthed evidence. As “ Discretionary Review Refused Nix, courts, majority’ ‘vast both of all April 1992. recognize log- federal” state and the sound discovery” doctrine. ic of the “inevitable Rehearing May Denied S.Ct. at 2507. Van- among and Miller are derbilt High was no
cases to which the referring. doubt