*1 Tеx.R.App. 25.2(a)(1) is Appeals of the Court of judgment The provides PROC. appeal is entitled to a court’s the cause is remanded the “State reversed and provided in a criminal case order proceedings. for further 44.01.” Code of Criminal Procedure Tex.
R.App. 25.2(b) provides “ap- that an PROC.
peal perfected by timely filing is a suffi- appeal.” (Emphasis
cient notice Tex.R.App. 25.2(c)(2) And,
original). PROC. if it
provides that notice “is sufficient party’s appeal
shows the deshe to order, or other judgment appealable Tuy PHAM and Derrick John Chance and, is no- if the State appellant, Gonzales, Appellants, complies with Code Proce- tice of Criminal dure article 44.01.” therefore, issue, Article The is whether of Texas. STATE 44.01(a)(5) requires the to be certification 44.01(a)(5) appeal. in the notice of Article PD-12-04, Nos. PD-72-04. require not this. Boykin does See Appeals of Criminal of Texas. (Tex.Cr.App.1991) 818 S.W.2d (courts generally construe statutes accord- June plain language). requires to their It only that the State to the trial “certif[y] appeal
court that the not taken for evidence,
purpose delay and that
confession, or admission is of substantial in the case.”
importance Appeals
The Court of relied on Johnson State2 State Riewe.3 See John
son, at 143 S.W.3d 220. These cases are
distinguishable. problem in Riewe timely that the State did make the 44.01(a)(5). required by
certification
Article
Riewe,
(certifications
See untimely).
were Riewe not hold that did
the certification had in the notice of be And, See id. Jоhnson dealt with
appeal. of a notice of requirements defendant’s did not an inter appeal require case, the of Article 44.01. In this
pretation
complied
legal requirements
with all
appeal.
its
perfecting
appeal
(Tex.Cr.App.2002).
attaches the certifica-
84 S.W.3d
notice
44.01(a)(5) requires
Art.
the State
tion that
court,
to the trial
to make
is the
(Tex.Cr.App.2000).
3.
G. Allen lant in PD-12-04. Cameron, Atty., Dist. M. Assist.
Carol Paul, Houston, Atty., State’s Aus- Mаtthew tin, for the State. Alvin, Charlton, for Appel- B.
Michael lant PD-72-04.
MEYERS, J., opinion delivered the KELLER, P.J., Court, JOHNSON, PRICE, WOMACK, COCHRAN, HERVEY, HOLCOMB, and JJ., join. in con- was arrested Appellant Gonzales
OPINION during a shooting death nection with MEYERS, J. he robbery at store when a convenience Pham was convicted Tuy John years identified old. was *3 murder, of and by jury a offense that he by two who confirmed witnesses punishment a of life impris- assessed was to attempting while steal shot victim in the onment TDCJ Institutional Division. party. for a gang beer from the store pled Gonzales Appellant Chance Derrick at some- Appellant party, Poliсe a arrested in murder guilty to the offense of a.m. Be- midnight time between 1:30 County, Harris District Court of 208th juve- took to a police fore officers Gonzales years’ He was Texas. sentenced approximately at 2:30 office processing nile Department in the confinement Texas a.m., stop made a at a sheriff’s officers (“TDCJ”) Criminal Justice institutional di- they left him min- station where for 20-30 bargain. to a pursuant plea vision pick up so a they utes could surveillance cases, Appellants’ consolidated as We tape from a store. This taрe convenience issues are in each of their the same raised committing showed a similar Appellant being appealed and both are appeals, cases night. type robbery Appellant the same in First of Appeals from the Harris car given was in the warnings his Miranda County. judgment will affirm the way processing facility. on the The appeals in cases. the court both municipal Appellant officer’s then took to a a.m., judge given at where he was 3:35 I. Facts Family Texas warnings required Code judge’s It was section 51.095. years Pham sixteen аt Appellant was old police Ap- chambers with the officers he became in the suspect the time a drive- pellant gave then his written Gonzales by shooting that in the resulted death of arresting victim, statement. The officer testified Dung p.m. At Van Ha. 2:35 on notify Appellant’s parents that he 9, 1998, did not September police Houston officers Appel- that their son had been arrested. Appellant Brook High arrested at Clear parents lant did not know p.m., At 3:35 Gonzales’ magistrate gave School. pro- had until he been arrested he was Appellant legal warnings required by juvenile facility arresting cessed into the Family section 51.095 the Texas Code. arrested, he was five to six hours after Subsequently, was taken to the gave police. after he his statement to police questioned by station investi- gator. Appellant to his admitted involve- History: II. Procedural Pham in the shooting approximately ment at 4:38 p.m. juvenile originally then Pham his appealed He was taken to facili- ty First processing by police Appeals. for officers. conviction to the Court of court processing facility appeals An officer Pham State1 (Pham I), on Appellant’s family notified at the convictionbased first about reversed trial Appellant’s when that the court erred p.m. spoke 8:15 he conclusion department admitting police Appellant’s sister. No one from the statement. until due
spoke
Appellant’s parents
with
9:50 court held the statement
inadmissible
violation of
p.m. Appellant’s parents did not come to to
State’s
Texas
52.02(b)2,
§
day.
the case
following
him until
Code
remanded
see
52.02(b)
Tuy
section
states:
Pham
2. Texas
1. John
2000).
(Tex.App.-Houstоn
Dist.]
[1st
to the trial court. The
subsequently- exclusionary analysis
State
under Texas Code of
petition
discretionary
filed
review
38.23,
Criminal Procedure Article
includ
court,
with this
granted.
which was
This
ing
causal connection
had to be
court vacated Pham I in Pham v. State3
court,
undertaken
and had not
(Pham IT), and
remanded the case
been.7 Therefore the case
remanded.
light
of the decision in
Upon reconsideration of
the court
(Gonzales II).4
Upon
of appeals
opinion
handed down an
on
reconsideration,
the court of
decid
(Gonzales III),8
November
hold
(Pham III)5,
ed Pham v. State
on Novem
that, in
exclusionary
an article 38.23
decision,
ber
In this
the court
analysis, the initial
on
burden was
*4
properly
held that the trial court had
ad
appellant to demonstrate a violation of a
confession,
Appellant’s
mitted
and
Ap
that
statutory requirement
as well as
causal
was
pellant
jury
not entitled to a
instruc
connection between the
violation
his
on the admissibility
of his confession.
confession.9
ensuing
Finding
Appel
that
Appellant subsequently
petition for
filed
lant
presented
Gonzales
no evidence to
discretionary review to this Court.
connection,
this
demonstrate
the
appeals
judgment
of
affirmed the
History:
III. Procedural
Gonzales
court
Appellant’s
the trial
and held
state
Appellant
appealed
Gonzales
to the First
Appellant
ment admissible.10
then filed a
Appeals
of
guilty.
Court
from a
of
plea
petition
discretionary
for
with this
review
court
appeals
orig
The
down its
handed
Court.
(Gonzales I)
inal decision
November
on
1999, holding
Appellant’s
that
confession
Appeals’
First Court of
Decisions
IV.
was inadmissible because
State had not
the
and Grounds for Review
its burden
proving
met
that Texas Fam
in
III
appeals
The court
held
Pham
52.02(b)
§
ily Code
had not been violated.6
State did
obtain
Pham’s
granted the
for
petition
We
State’s
discre
confession
violation of Texas
tionary review,
13, 2002,
February
and on
52.02(b), however, in light of
Code section
appeals
vacated
decision of the
court
II,
(Gonzales II).
our
court
opinion Gonzales
also
This
held in
Court
Gon
automati
II
held that
confession was not
Appellant’s
zales
statement was
cally
conducting
withоut
merely
inadmissible
first
inadmissible
because the State
to follow
an
under
Criminal
requirements
analysis
failed
of Texas
Texas Code of
52.02(b).
§
held that an
article
determine
Procedure
38.23 to
State,
person taking
custody
(Tex.App.-
A
a child into
5.
v.
shall
Pham
125 S.W.3d
III).
2003) (Pham
give
person’s
promptly
[1st Dist.]
notice of the
action
Houston
taking
and a statement
reason
State,
(Tex.App.-
6.
v.
14.Id. issue, proof ness is an the burden of IV. Law admissibility confessions with lies party argues Neither with the settled argue that did this Court proof initially law that the burden of on analy- create a causal connection the exclusionary the defendant raise II. sis Gonzales producing statutory issue evidence of violation, and that this burden then shifts argues in The State these cases that the compliance. prove the State to placing did not err in the main issue we face here whether the production Appellants burden of on to of- defendant has the of producing burden prove fer evidence that violations evidence that violation shows the is con- occurred, they Code and that were obtaining nected the evidence causally ensuing connected to the confes- sought suppressed. to be Appellants sions. The State contends that Appellants argue a causal connec- production, failed to meet the burden of separated cannot be from an i.e. they produce any did evidence thus, since it is their statements were violation obtained well settled the State bears the bur- any Additionally, laws. the State ar- taint, proving den of attenuation of gues that causal connection and attenua- upon produce burden is also it to separate analyses by tion-of-taint are two disagree. of a causal connection. We If which a court will determine evi- whether argument, anytime we follow this circular dence of the was obtained violation law statutory an appellant asserted a violation as set out in article 38.23. 52.02(b), a court section *6 immediately would to conduct an at- have granted We review in both of these tenuation-of-taint because it is clarify сases to the causal connection anal- part analysis. the causal connection ysis must which be undertaken article assumption would further This the that 38.23 In suppression evidence claims. Appellant once shows a violation of the case, Appellant Pham’s granted we the 52.02(b), statute under the evidence is au- 1) grounds following two for review: did tomatically assumed inadmissible unless holding the court of err in that the State demonstrates attenuation-of- causal connection and attenuation-of-taint taint, an we assumption exprеssly which 2) analyses, constitute did and the rejected in Gonzales II. by court of err requiring may have State We held that the make prove to a causal connection the between argument attenuation-of-taint is 52.02(b) violation of section the Texas analysis.17 under an Article 38.23 included Appellant’s confession? However, is discussed argument this granted In Gonzales’ we only Analysis if raises it.18 the State ground following the did review: the attenuation-of- of causal connection and adopt wrong court of appeals standard An attenuation-of- taint are the same. by which a causal must be connection es- always required taint is not justify sup- tablished under article 38.23 to be conducted. always therefore need not pression of evidence seized violation of expressly have held that causal con- We Code? between a of section nection violation (Tex. (Tex. Roquemore S.W.3d 862 Johnson S.W.2d Crim.App.1994). Crim.App.2001). 52.02(b) connection causal evidence to rebut a defendant’s obtaining argument. is be before the evidence ren- must shown If is no causal dered inadmissible.19 there ap uphold also place, in the first there connection shown proof of the burdens of peals’ distribution argue that the
is no reason for the State to long these cases. We have both of so that taint of the violation is far removed is persuasion held that “the burden causal connection is broken. Attenua- upon permanently placed properly and this . It tion-of-taint breaks connection. moving party. When the shoulders of negate of the causal the existence does right claims a criminal defendant connection. exclusiоnary rule of under an protection prove his
evidence,
his task to
it
is
produces
If
defendant
evidence
again
we
case.”21 In Russell v.
connection,
there is
causal
the State
that
this
holding. Recognizing
cited
this
causal
may
try
disprove
either
evi
used for federal claims
dence,
and seizure under
is a causal
search
disproving
i.e.
Amendment,
Texas
Fourth
and because
all, or,
at
in existence
the State
to how
bur
law is silent as
statutory
may
argu
make an attenuation-of-taint
on motion
den
is distributed
proof
evaluated
ment. Attenuation-of-taint
of the
suppress,
adopted
this Court
some
four-step
under
Brown v. Illinois20
courts in
rules
federal
distrib
followed
may argue
which the State
uting
proof.22
burdens of
although
the defendant has demon
connection,
of a
strated evidence
causal
that the burden
Appellant argues
taint of the violation was so far removed
on the State to show the
should be
obtaining
of the
connection,
this situation to
analogizes
chain
the defendant demonstrated is
is
admissibility
confessions when
short,
in fact
without
broken.
first
Although
raised.
sues of
are
voluntariness
establishing
thаt there
a causal connec
prove
that a
the burden is on
tion between the violation and the obtain
once
voluntary
confession was
defendant’s
evidence,
nothing
of the
there can be
*7
raised,
has been
that situation
issue
for the State to assert has been broken
statutory
may
distinguished from
be
through
attenuation-of-taint
factors.
Family
we
violation of the Texas
Thus,
uphold
we
appeals’
con
on a
have
All a defendant must do
here.
clusion that a causal
involuntary
is
claim of
confession
to dem
52.02(b),
regarding Family
violation,
Code section
as
cognizable
is a
onstrate there
by
II
required
this Court
be
immediately pre
Gonzales
and the confession is
inadmissible,
may
fore
deemed
can
be
sumed inadmissible unless
an
of the evidence
prove by
preponderance
is
attenuation-of-taint
a
voluntarily.23
it
made
is no
analysis,
may
be
the State
that was
There
used
nied,
916,
265,
(Tex.
U.S.
85 S.Ct.
13 L.Ed.2d
379
Gonzales
(Gonzales II).
Crim.App.2002)
(1964)).
186
Illinois,
590,
422
20. Brown v.
U.S.
95 S.Ct.
7,
(Tex.Crim.
9
S.W.2d
22. Russell v.
(1975).
violation. Texas case it Under is re- The Court concludes that an attenua- quired that a connection be estab- a tion-of-taint is different from lished, defendant, that the we hold as analysis. causal-connection Because the wishing the moving party exclude only support for this conclusion is a trou- evidencе, responsible the burden of footnote, blesome substantive and the con- proving this connection. Supreme clusion is in conflict with Court jurisprudence, I dissent. Thus, appeals correctly the court of held defendant, that the burden is on the Supreme The United States Court intro- moving party suppress in a motion to evi- duced concept the attenuation over 65 dence obtained in violation the law un- years ago in Nardone United States.1 88.23, der Art. produce evidence demon- explained There the that “[sjophisti- strating the causal connection which this may prove cated argument causal con- required II. The burden nection information between obtained then shifts to to either disprove the State through wire-tapping illicit and the Gov- the evidence produced, the defendant has proof,” ernment’s but “[a]s matter of or bring argument an attenuation-of-taint good may ... sense such connection have chain demonstrate that as- dissipate become so attenuated as to words, serted was in fact defendant bro- taint.”2 In an other of the ken. “causal conneсtion” between the violation discovery
of the law and the of the evi- parcel is part dence of the “attenua- Y. Conclusion They tion of taint” are analysis. one Pham, In the case of we hold the If same. the evidence is obtained as the court of conducted the action, illegal direct result of the then appropriate the court there is a causal connection between the did not in requiring Appellant err Pham to discovery two. If of evidence produce prove evidence to a causal connec- action, remote result of the then tion between the violation of section of the taint. The there is 52.02(b) of the Texas Code and his *8 causally two events are either connected or ensuing The decision of confession. they are The doctrines are attenuated. is affirmed. coin. two sides of the same Gonzales, In in the case of Bell v. State3 recognized we We “taint appeals adopted hold the court when we attenuation addressed correct which a to chain standard causal connec- determine whether the causal be- tion must be established under Art. 38.28 tween the confession arresi/first Later, to in justify suppression subsequent of evidence was broken.” events 266, 338, 780, (Tex.Crim.App.1986). 1. 308 U.S. S.Ct. 84 L.Ed. 3. 724 S.W.2d 791 60 307 (U.S.1939). 2. Id. at 266. 60 S.Ct. having nega- a from stopped this footnote Daugherty,4 we discussed “what tive on the law. 38.23(a) impact by ‘evidence ob-
Article means ex- in the law.”5 tained violation of certainly has confused The footnote “ordinary meaning” plained that original sub- On Appeals. First Court accommodated the attenuation Pham, “obtained” analyzed the First in mission re- be- “depending doctrine because on how a whether there was causal discovery of and the illegality evi- tween the moved the actual attainment of the evidence, the court concluded ordinary illegality, dence from following: The said was. person not consider that evidence would arresting promptly If officers had illegality.”6 have been ‘obtained’ of his arrest parents notified appellant’s Even when evidence would not have been con- approximately two hours before his said, if illegality, but for an we obtained fession, therе would have been time discovery the eventual of the evidence was get juvenile processing them to to the far from illegality removed then the confes- office at 1200 Travis before need be excluded evidence would not Comer,11 say we cannot with sion. As ordinary meaning ‘ob- “because the if any appel- degree of confidence remote, a does not extend to such tained’ parents or his lant had access to his ‘attenuated,’ relationship.”7 or So attorney, would still have chosen he we, too, recognized have that the attenua- confess to the crime.12 tion encompasses doctrine a connec- analysis, granted Despite the court’s we analysis. case petition the State’s and remanded the years a ago Roquemore But few to consider the Appeals for the Court of State,8 dropped we footnote. again light mischievous of Gonzales.13 issue say perplexed, First somewhat analyzing After whether there was a caus- Court was ing: al illegality connection between the evidence, original opinion, we conducted discovery we said our then tracking taint-attenuation Com
that “we need not do an
attenuation
insufficient
apparently
er. This was
taint
because
State did
reconsid
avoid remand for
footnote,
argument.”9
raise the
With this
Gonzales,14
light
eration
implied
we
that an attenuation
analysis.
from causal-connection
remand
court determined
our
true,
course,
that,
outset,”
This is not
“determine
footnote
“at the
it should
dicta,10
itself is
but those facts have
whether causal connection and
(Tex.Crim.
(Tex.Crim.App.1996).
4.
11.
931 S.W.2d
Comer
App.1989).
Id. at 269.
36 S.W.3d
204-05
12. Pham
at 270.
Id.
2000) (Pham I).
(Tex.App.-Houston [1st Dist.]
Id.
(Tex.Crim.
13. Pham v.
S.W.3d
*9
State,
(Pham II), citing
v.
App.2002)
(Tex.Crim.App.2001).
8.
ses.” It found already then that the case “most an done connec- attenuation/causal clearly demonstrating analyses analysis, tion which is all that Gonzales for causal required. connection and attenuation of taint, in they and the order are jurisdictions, given In other it ais that 16 undertaken, to Roquemore.” be аnalysis an attenuation-of-the-taint and a that, court concluded on Roque- “[biased analysis causal-connection one are more, and based on the fact our that atten Ap- same. The United States Court uation-of-the-taint in Pham I was peals says for the Tenth Circuit that “the inadequate satisfy found to a Gonzales government totality prove, must from the causal-connection we conclude circumstances, of the a sufficient attenua- separate analyses that there are causal or break the causal сonnection be- connection and attenuation of the.taint.”17 illegal tween the con- detention and the 18 Roquemore But the footnote in mis- says sent.” The Eleventh Circuit guided misleading. Additionally, re- “challenged will un- be admissible mand from this light another if der ‘attenuation’ doctrine the causal necessarily case does not mean connection vio- between constitutional appellate was wrong original in its discovery lation and the of the evidence analysis. It means only dissipate we want the has so become attenuated as court to again consider the issue and de- the taint.”19 The Fifth Circuit refers if termine its needs to be altered the “causal-taint attenua- in light opinion. the new analysis.20 tion” courts held State have there was no need Ap- similarly.21 for the Court of 753, Johnson, (9th 15. Id. at 625. States v. F.2d 626 758 1980) (stating "majority opinion Cir. 16. Id. Dunaway repeatedly emphasizes that it is the inquiry 'causal is the relevant connection' that 17. Id. at 625-26. determination”). making the attenuation Caro, 1240, United States 248 F.3d 1247 21. See, 631, e.g., Hornsby v. 517 So.2d (10th Cir.2001). 1987) (causal (Ala.Crim.App., 638 may dissipate become so attenuated as Terzado-Madruga, 19. United Stаtes v. 897 taint); 318, 326, Tapply, 124 470 N.H. 1099, (11th Cir.1990). F.2d 1113 ("Because (N.H. 1983) illegal A.2d 900 of his detention, any dur 354, statements made him Causey, 20. United States v. 818 F.2d 361 (5th period be Cir.1987), such excluded unless the must grounds, rev'd on other 834 (5th Cir.1987). State shows that there has been sufficient F.2d 1179 See also United 677, original (8th of the taint to remove the Wipf, 397 States F.3d 684 Cir. 2005) illegal custody (“challenged connection between through evidence derived statements.”); Barry, N.J. police illegality and the State v. will be still admissible under 94, 80, (N.J.1981) ("By focusing if A.2d 581 'attenuation' doctrine the causal con illegali on 'the connection between the nection between the constitutional violation confession,’ discovery ty doc and the of the and the the attenuation evidence has become taint”); dissipate so nec attenuated as to trine serves indicate when exclusion is Unit Green, deterrence."); (7th essary ed purpose States 111 F.3d to further the - 1997) ("[e]vidence Garcia, (Tenn. may 'sufficiently Cir. be State v. 123 S.W.3d 2003) distinguishable purged primary (addressing to be of the "whether con the causal taint' if 'the causal connection between the nection between an unlawful seizure and broken, illegal police procurement subsequent i.e. conduct and consent has been dissipate primary “so evidence is attenuated as to whether the taint of unlawful sei ’ ”); attenuated”). sufficiently the taint’ of the action” United zure has been
777 that the attenua- acknowledge Once we
tion and the causal-connection same, ques-
analysis are one proof is an- regarding burden Illinois, In the United
swered. Brown Supreme set forth some
States in a causal
the factors to be considered analysis, then add-
connection/attenuation showing
ed that “the burden admissibili- course, rests, prosecution.”22 on
ty that “the recognized have also burden showing and thus admissi- attenuation
bility prosecution.”23 rests with Gonzales, the appel- Pham and both in analyzing
late erred the causal separately plac- taint. The court also erred showing connec- the burden I appellants.
tion on the would reverse judgments. majority
both Because otherwise,
holds I dissent. HOBBS, Appellant,
John Vernon
The STATE of Texas.
No. PD-0570-04. Appeals
Court of Criminal of Texas. 22, 2005.
June 122, (Tex. 603-604, 2254, Boyle S.W.2d 131 45 820 22. 422 U.S. 95 S.Ct. (1975). Dunaway v. Crim.App.1989). See also L.Ed.2d York, 200, 218, S.Ct. New 442 U.S. (1979). L.Ed.2d