*1 450 consciously wrong today Ar- because it was
ty’s approach,”11 including cases from Colorado, Florida, kansas, Iowa, unconsciously wrong yesterday.15 Oregon, Pennsylvania, and Wisconsin.12 to The Court refuses hear State’s It argument, but it should do so. of Taint Attenuation a funda- opportunity take this correct Finally, original the Court on submission mentally analysis original flawed on sub- the attenuation of taint failed consider I denial of mission. dissent to the Court’s doctrine, concluding instead that the State rehearing. the State’s motion argument to the trial present did rely could not on it.13 court therefore
But this conclusion is based on the belief on the
that the State waived all reliance warrant, plainly the record
search which we concede that the State
refutes. Once
did, fact, argument base its search on warrant, the search the attenuation MIDDLETON, Wayne Appellant, David necessarily rele- taint doctrine becomes v. entry into the home was vant. of Texas. STATE (a disagree I proposition
invalid with which contends), but which the Court the State’s No. 1263-01. argument permissible that the search was Texas, Appeals of Court of Criminal due to the warrant must be addressed En Banc. warrant at- terms of whether the search entry. illegal tenuated the taint from the 23, April 2003. Appeals recognized this and Court (though disagree I addressed attenuation14 analysis). should also
with its This Court any attenua-
address whether there was
tion.
Conclusion Court, in its
I refuse to believe deliberately misrepresen-
original opinion, I there-
ted the law and the facts. must that, sadly paraphrase
fore conclude Jackson, the Court chooses
Justice
391,
(1980);
aff'd,
Com
646
288 Or.
605 P.2d
87
Ill.Dec.
A officer said he saw David stop sign, but Middleton dleton run stopped. that he The officer claimed drugs. over and found pulled Middleton disregard this was instructed to if the officer lacked evidence the failure cause. conclude We define that term was not error because and did believe that the did defendant bring operating did not need the definition. the vehicle he was stop at the intersection of Cates and
I. Facts Texas, Bridgeport, Crittendon you beyond do not so find reasonable Eve, 1998, Sergeant On New Year’s *3 doubt, doubt, you or if have a reasonable “working radar” at the Stanford was inter- you disregard testimony will such section of Crittendon Street and Cates evidence. that Bridgeport. Street He testified he During closing arguments, the defense Chevy saw a small fail to pick-up blue following made the statements: a complete stop stop sign. come to at the Stanford the vehicle with his you any followed Remember we told law lights flashing and after a few blocks the that’s seized in [sic] violation Constitution, truck came a stop. ap- Stanford United States Con- State proached the truck and identified driv- stitution the laws of the State of Texas er as Middleton. Middleton consented to is not admissible Court. search, truck, upon searching Now, this is where the issue comes. methamphetamine found behind
Stanford You on get charge the law because ashtray. issue, there’s an and the issue is: Do you have a reasonable doubt as to stopped Middleton testified that he complete whether or not he came to a stop sign. See, cause is- stop. that’s the testimony, At the defense conclusion That’s issue. sue. requested charge counsel pursuant as to You have reasonable doubt Art. 38.23: complete to a whether or not he came I request Charge, would under stop or whether Mr. Stanford' —Offi- Article 3823 of the Code of Criminal just out Sergeant Stanford was cer— beginning top Procedure at the traffic making there a lot of routine Page I would ask that it be inserted. stops. any provides “Our law evidence you stop a reason to So have to have seized in violation of the States United somebody, just get into the idea Constitution, the Texas Constitu- for search of you can ask them tion, the laws of the State of Texas or of the vehicle. county, shall not be admitted into Now, doubt you have a reasonable in any proceeding.” evidence criminal or not Stanford —as he as whether I Basically, would ask for that a reasonable prefers to be called—had is for descriptive as a of what the law he, fact, to whether or not doubt as paragraphs, your the next two Honor. violation, if you a traffic even observed request The court denied Middleton’s but to have to have a reasonable doubt following language did include the doubt, prove beyond a reasonable charge: makes all these routine Stanford who year, you is an officer of the stops
The court further instructs and who or not he’s you may testimony and doesn’t know whether before consider the year because of all these concerning the search officer of the Steve Stanford makes, vehicle, you he you stops must routine consensual the Defendant’s beyond a reasonable beyond find a reasonable doubt that have to believe first balancing weighing It’s not a the officer had cause to believe doubt. know, ‘probable cause’ of, maybe I’m it was a definition of the term you not sure Art. instruction.” an 38.23 okay stop, maybe an it wasn’t. It’s to protections. Remember III.Preservation of Error everybody from ill—unreason-
protect
initially that Middle-
The State
you
have a
illegal
detentions.
from
appeal
on
is different
complaint
ton’s
or not
reasonable doubt as to whether
argument
at trial. This
complaint
his
valid, you
consider
stop
don’t
premature.
stop.
of that
anything that was a result
in Hutch v.
As we
State,2
duty
first
appellate
an
court’s
to deter
evaluating
jury charge
The evidence is—The evidence is that
issue is
*4
Then, if error
or mine whether error exists.
dispute
there is some factual
whether
found,
analyze
court should
appellate
is
the
stop
pre-
not there
a valid
or some
preservation
harm. Error
that error for
textual-type stop by
police.
the
an issue until harm is
does not become
jury
guilty
pos-
found Middleton
of
degree of harm nec
assessed because “the
sessing methamphetamine
judge
and the
upon
essary
depends
for reversal
whether
years
him 12
in prison.
sentenced
preserved.”3
the error was
Appeals
II.Court
of
analysis
forth
This is the
we set
appealed arguing, among
Middleton
oth-
v. State.4
Almanza
years ago in
almost 20
things,
judge
by
er
that
trial
the
erred
explained that Art. 36.19 con
There we
failing “to include an abstract
instruction
tains harm standards for “both ‘fundamen
in
illegal
on the law of
search and seizure
ordinary
tal error and
reversible error’
charge.”
Art.
argued
the
38.23
He
the
result,
jury
all
jury charges.”5 As a
charge
failed
describe the law
the
considered,
charge error must be
whether
jury
was to
and failed to define
error.6
preserved
or not
the defendant
“probable
responded
cause.”
specifically applied the harm
And we have
preserve
Middleton failed to
error
to Art.
less error rule of Art. 36.19
38.23.7
and,
so,
if
any
analyze
he did
error was harmless.
must
error existed
So we
whether
jury
we con
Appeals
“probable
charge
The Court of
held that
Middleton’s
before
preserved.8
whether that error was
required
cause” was not
to be defined in sider
charge
the
because it is not defined
IV.Analysis
granted
petition
statute.1 We
Middleton’s
38.23(a)
discretionary
provides
review to decide whether
Article
that no ev
provide
jury
a trial court “should
with idence obtained in violation of the law
the
Middleton,
Almanza,
See also
1. State v.
has a technical necessarily that does not mean that it had COCHRAN, JJ., HOLCOMB and case, to be defined.13 In no there was in the result. concurred jurors arbitrarily risk that the would WOMACK, J., concurring filed definition, personal their own nor was opinion. required definition of the term assure fair understanding of the evidence. J., PRICE, dissenting opinion, filed a JOHNSON, joined and by MEYERS JJ. single, simple,
This case
involved
and
dispute
factual
or not Middleton
—whether
J.,
WOMACK,
concurring.
at
stopped
stop sign.
Its resolution
join
opinion
I
un-
determined whether
the seized
with the
evidence
Court’s
that,
unusual
derstanding
could be
There were no other
because of an
considered.
case,
which
feature
it does not resolve the
proba-
facts
could have established
of this
to define
explained
general question
ble cause. As the State
in its
need
in the
un-
Appeals:
“probable
brief to the Court of
cause”
court’s
State,
11.
(Tex.
Medford,
v.
13 S.W.3d
772.
9.
924 S.W.2d
Martinez
Crim.App.1996); Garcia v.
887 S.W.2d
(Tex.Crim.App.1994).
Draughon
See
v.
(Tex.Crim.App.1992).
S.W.3d
10. See
Medford
(Tex.Crim.App.2000);
Andrews
Andrews,
13. See
We have
to the
for failure to define that term.” Id. at 376.
general rule when a term in a statute has
We said that the Code Construction Act
meaning.
a technical
a term does not
specifies
phrases
that “Words and
shall be
common, ordinary
meaning
we
accordingly.
read
context and construed
jurors
presume
apply,
can
to know and
phrases
that have
acquired
Words
definition of the term should be included in
particular meaning,
whether
State,
jury charge. Phillips
by legislature or otherwise shall be con-
(Tex.Crim.App. [Panel
S.W.2d
Ibid,
1980);
accordingly.”
(quoting
strued
Tex.
Op.]
King
2.01).
5429b-2, §
(Tex.Cr.App.1977) (citing
Joubert v. Rev.Civ. Stat. art.
Also
219, 124
136 Tex.Cr.R.
we
Procedure Arti-
noted Code of Criminal
(1938)).4
might
This
be the test when a
cle 3.01 states “Words and terms used
appear
technical term does not
in a stat-
this Code are to be taken and understood
ute, but
cannot tell that from the cases
we
lan-
acceptability
their usual
common
majority.
cited
guage, except
specially
defined.”5
Ibid, (quoting Tex.Code Crim. Proc. art.
In Andrews v.
The State notes that at least one other rejected court of appeals argument has wording For the of their recommended probable instruction, that rely cause should be defined. the authors on cases that 1, But in given Rendon v. 4 hold an S.W.2d instruction must be ref'd), 38.23,9 (Tex.App.-Corpus pet. question Christi of fact arises under article provides analysis the court no for its con and one case that holds an article 38.23 merely clusion. It explained given by that Rendon instruction the trial court was not provided authority no for his claim an incorrect statement of the law.10 But probable required. cause was require judge these cases do not the trial adequate Ibid. This basis was probable to include a definition of cause. claim, disposition court’s of Rondon’s but it persuasive authority, This is but it does dispose does not question dispose question we ad this case. today. dress appellant argues The also because civil cases a definition of required The have appellant also that because cause we should include defini- published guides instruction recom- tion in this case. The case on which the prob- mend the inclusion of a definition of Dahl, cause, Akin relies is the definition should be re- (Tex.1983). case, In that S.W.2d quired. cites W. Scott Supreme approved the Texas Court of a Carpenter and Paul McClung, J. Texas judge trial definition that was used Jury Charges, Criminal 12:750 & sections case, (2001), ques- in the did not address the but 12:1090.20 which the authors given. tion of whether must be Ibid. conclude that one merely instructions persuasive authority This is more that it is language track the of article 38.23 are proba- advisable to include a definition inadequate they include a definition ble cause. cause in the article 38.23 in- struction. appellant argues cause is a technical term because it is
For proposition that an article 38.23 differently con- different instruction should do more than track the In texts. the context an article 38.23 statutory language, authors cite instruction, probable cause exists Braggs, which relies on Davis v. reasonably 663-64 (Tex.App.Texarkana trustwor- refd). above, information, whole, pet. thy As as a we considered in Braggs per- the court and Davis did not sufficient to warrant a reasonable analysis authority particular person include for its conclu son to believe that a 9. Jordan v. 10. Attwood v. (Tex.Crim.App.1978) (requiring (Tex.Crim.App.1974) (approving of an article an article *9 question proba- 38.23 instruction when a of fact was 38.23 instruction when a definition of concerning legality way appeared charge, a raised the of the evi- ble cause elsewhere in the Court). obtained). by dence was fact which was not mentioned the
459
jurisdic-
for
of
cause”
waiver
committing an of-
“Probable
committed or is
has
defined as
juvenile court is
by
tion
the
requires more
cause
fense. Probable
and circumstances to
facts
sufficient
suspicion
far less evi-
mere
but
than
to believe
prudent
a
individual
warrant
a
support
than that needed to
dence
commit-
the
committed or was
suspect
sup-
or
that needed to
conviction
even
cause
probable
ting an offense. “The
finding by preponderance
a
port a
practical,
a
proof
embraces
standard
evidence.
than
rather
approach
sense
common
(Tex.
Hughes v.
S.W.3d
in the
applied
more
standards
technical
(citations omitted).
Crim.App.2000)
a reason-
beyond
either
proof
burdens
proceedings, the definition
In forfeiture
preponderance
a
of the
able
or
doubt
“is a
is
Probable cause
reason-
different.
evidence.”
a
that
‘substantial connection
able belief
Ibid, (citations omitted). The definition
be
property
forfeited
exists between
differences,
con-
depending on the
contains
activity
criminal
defined
and the
text,
It
the State’s conclusion.
that refute
”
$11,014-00,820
statute.’
State v.
S.W.2d
on common
may
a standard based
be
(Tex.1991)
$56,700
(citing
in U.S.
sense,
jurors need
know to what
but
(Tex.
Currency v.
instruction. apply courts should of probable cause found in
Hughes: Probable cause exists reasonably trustwor- information,
thy whole, considered as a Bradley DYAR, Appellant, Robert sufficient to per- warrant a reasonable son particular person to believe that a
has committed committing or is an of- The STATE of Texas. requires fense. Probable cause more No. 1794-01. than suspicion mere far but less evi- dence than that support needed to Court of Appeals Criminal of Texas. conviction even that needed to sup- April port a finding by a preponderance of the evidence. (citations
Hughes, omit-
ted).
That swearing this case involves a match
between the officer question the focus we are called
on today. to decide The fact focus inquiry
of our is whether the term is a term that the trial court gave have defined when it jury. to the The appellant’s argu-
ments the charge given after to the requested without the language are a
concern in determining appel- whether the
lant was harmed. It does tell us
whether the trial court when it erred omit- charge.
ted the definition from the
I hold would that the trial court erred. try
It is futile measure distance with
a ruler that lacks lines of demarcation.
Telling juror to look at facts to deter-
mine whether cause existed is
equally juror futile unless the understands
and can term. notes appellant The both conclusion because surprising that trial has determined appeals of of court interpretation deal with the provisions in an cause probable define courts should statutes, a term should be not whether Braggs In Also, instruction. article 38.23 jury as I ex- charge. in a (Tex.App.-Tex above, probable cause the term plained ref'd),8 held the court pet. arkana in Article 38.23 because appear does not was defec article 38.23 instruction that an exclusionary rule. These general is in the tive: apply to the situation rules cannot instant case. this issue recently addressed This Court 663- in Davis excep- for the assuming the test Even ref'd). 1995, pet. (Tex.App.-Texarkana defining statutory to the rule about tion Davis, here con the instruction As applied jury charge in the terms of proposition an abstract only sists of case, term probable cause is a technical directly from Article 38.23. drawn law aver- easily understood that is not charge does not instruct jury average ask the age juror. one were to governing probable law jury on the means, cause juror probable what apply the charge does not cause. The says get even money smart he will involved, to the evidence legal concept close. jury to resolve the it ask the nor does argues probable justify or that either disputed fact issues peculiar meaning and technical cause has Id. The officer’s conduct. invalidate the that it should be de- this context and charge is defective. charge. support fined in the In of this com- appellant, Braggs, like the Ibid. argument, claims that one include court faded to that the trial plained probable has appeals court of held The court probable cause. a definition context,6 be defined in this the trial court holding appeals’s guides include published instruction on the law by failing to instruct erred cause, the Texas Su- response seems to be probable cause required has a definition of preme Court complaint. The Court Braggs’s cause,7 prob- and the definition Davis, on which the case Braggs area of depending cause varies on the relies, ab- explanation, or Braggs applied. it is law which required. charge was portion stract that a It true that we held cause is The State portion contain the abstract charge should not a term that should be defined portion. application and the common of the practical, it embraces a because 584, 586-87 Riley v. in contrast to the terms approach sense