State v. Ibarra

judgment acquittal upon on based insufficien- the issue from both sides of the table cy legality rendering the evidence as to the of the decision. This

detention. ease should be reversed due judgment I concur in the of the Court. error, to trial and the afforded the State opportunity reprosecute.4 Ortega, to OVERSTREET, JJ., join. BAIRD and (if objects 705 n. 10 S.W.2d at State to in- charge creased burden in and evidence is support

found insufficient to be- verdict regard,

cause of trial court’s error rulings

“those trial court reviewable appellate

found court con- erroneous error,’

stitute ‘trial free to the State is prosecution”).

pursue another does not mention the Court’s Texas, Appellant, STATE opinions Ortega Stephens, though even provide exception applica- those cases an

tion of the doctrine which Benson/Boozer IBARRA, Appellee. Gabino Puente applies in this does not cite case. State No. 1360-95. Boozer, present to Benson and much less an argument overruling opinions. for those It Texas, Appeals Court Criminal always my understanding been that this En Banc. precedent Court should not strain to overrule hand, when not on called for the facts at but Sept. appropriate should wait for the case where parties opportunity raise and have the issue, argue precedent and where the applica-

be overruled would be otherwise be disposition

ble and control the ease at

hand. See Blanco v. No. 098-97

(State’s 1997)(State pet. granted April ¡Boozer).

urges Court to re-examine Benson system,

As a believer in the I adversarial appropriate

would wait for the case where arguments

the Court could entertain the best holdings given 4. This rule is consistent with the Court s instruction was not on the lesser includ- reprosecution original as to of a lesser included offense ed trial, at the first that at the trial] offense finding appeal insufficiency request an the State had chosen not aggravating great- evidence on the element of the offense of instruction on the lesser included Granger, words, had, er offense. In Ex Parte (Tex.Crim.App.1993), 850 S.W.2d 513 rape. In the State at the other first trial, convict- defendant was pursue lesser included failed offense murder, capital appeal, was, ed of but on direct charge jeopardy it and attached to after capital found the evidence insufficient as to the therefore, prosecuting it barred from forever subsequent element. The defendant claimed his again. for murder was barred double correctly explained [another As court explained jeopardy. disagreed. We We that al- essentially the same case] when faced with lowing reprosecute placed defen- the State to facts: position dant have ab- in the he would been in jury instructed on [the ... ... was not submitting sent the trial error in court's appears It the state offense]. lesser capital charge. Because the evidence was simply pursue for not to a conviction chose element, capital insufficient as to the if the lesser offense, although was in [defendant] gone juiy, included offense alone had jeopardy it so elect- as to that offense. Had defendant would have been convicted. We em- ed, requested the addi- the state could have however, phasized, charge that had no been in- the lesser [on offense]. tional instruction offense, cluded on the lesser could Therefore, defendant respect to the offense [lesser] not have retried been ..., offense: aborted the trial was abandoned or necessity. repeatedly point the state without manifest ... We were careful to out original). opinion jury 520(emphasis where a Id. at [in another case I, exception § 9. One

Tex. art. Const. involves those searches requirement warrant way voluntary by that occur consent. (Tex. State, 758 S.W.2d Juarez v. however, Crim.App.1988). challenged, When must the voluntari the State demonstrate by convincing ness of this consent State, Paprskar v. 484 S.W.2d evidence. (Tex.Crim.App.1972). Here, charged posses- appellee was fifty pounds mari- sion of between two and marijuana Ap- juana pay and failure to tax. pellee suppress moved to evidence obtained during ground of his car on the the search voluntarily that he did not consent to the appellee’s granted search. The trial court motion, finding proven that the State had appellee’s by pre- voluntariness of consent ponderance of the evidence but not convincing requisite clear and evidence. The affirmed, Appeals rejecting Houston Court of argument that the Texas Consti- State’s tution, Constitution, like United States only demands that the State voluntari- preponderance ness of consent Ibarra, evidence. State v. 918 S.W.2d 1995)(do (Tex.App.—Houston [14th Dist.] publish). granted discretionary review We appeals whether the court of erred decide in its determination. Lieck, Beaumont, D. appellant. Ed that, dispute our The State does under Greene, Attorney, Steve Assistant District constitution, repeatedly we have held it to a Anahuae, Paul, Atty., Matthew State’s Aus- standard of clear and tin, for State. attempting to show the voluntariness of when a consent to search. See Dubose Before the court en bane. (Tex.Crim.App.1996); 915 S.W.2d OPINION ON STATE’S PETITION FOR 775; Paprs Juarez DISCRETIONARY REVIEW kar, Rather, at 737. the State MEYERS, Judge. position advocates that we reevaluate our that, excep- Texas law with few light the Texas Constitution in under tions, a warrant the State obtain only requires fact that searching place possessions or of a citi- by preponder that voluntariness be shown directly requirement zen. This follows from ance of the evidence under the United States constitution, which demands that: Matlock, Constitution. United States 164, 176-78, 988, 996, people per- shall be secure in their sons, houses, papers asking us to recon possessions, from L.Ed.2d searches, all seizures or cile our law with federal the State em unreasonable in Autran v. place, ploys no warrant to search or to seize the five test set out any person (Tex.Crim.App. thing, shall issue without be, 1994), describing as near nor which considers not the text them probable supported by provision, but also the without cause oath the state constitutional policy history, possible or affirmation. framer’s intent and and, constitutionally voluntari- finally, compa- the State to show considerations behind it jurisprudence Ap- ness of consent rable from other states. years

pellee applies asking test in us to evidence would undermine of well-es- the same precedent that has demanded adhere to the standard of clear and tablished convincing evidence. clear against backdrop that we It is this discern outset, emphasize At that al party’s policy arguments fully which more the Texas though “we need not construe I, § support the art. 9 mandate differently [from Constitution seizures. The unreasonable searches and constitution], simply getting there no is preponderance a State asserts that independently.” that it around the fact we construe sufficiently police standard evidence deters State, der Bau constitution, but, violating officers from (Tex.Crim.App.1996)(Clinton, concur time, the fact that at the same accommodates Indeed, suggest that ring). seems odd police often make accelerated officers must rights constitutional the measure of state regarding searches and seizures. decisions independent not an assessment stems from Appellee suggested that avers the State’s rather, but, way from the of our constitution of clear departure from the current standard provisions in which our constitutional convincing necessarily will al- and evidence from their federal similar to or different purported consent low “more evidence of the So, counterparts. Supreme while Court prosecution than would be admitted were the provisions analysis of constitutional standard”, higher thereby required to meet a enlighten may our own constitutional endeav I, protections. § diminishing art. ors, interpreta we are not bound those Supreme encountered some of these Court tions. Lego Twomey, arguments same so, in Autran Even the test set out (1972), and 92 S.Ct. to inde- serve well as a mechanism which that the voluntariness of confession decided pendently construe our own constitution. preponderance proven by need Boykin out in Much like the factors set holding, In so the Court the evidence. (Tex.Crim.App.1991), has ac- opined that “no substantial evidence ambiguous when a statute’s text is that federal have suffered cumulated results, the Autran factors or leads to absurd admissibility by prepon- determining from scope may help illuminate the intended Id. at derance of the evidence.” case, provisions. constitutional But this specifically added at 626. But the Court party especially compelling makes neither that: I, 9,§ arguments regarding the text of art. free, pursuant to their States are [T]he provision or the framer’s intent as to that law, higher standard. own comparable jurisprudence from other states. appropri- They may indeed differ as George dawson, E. Dix & Robert O. values find at ate resolution of the and Procedure Texas Criminal Practioe stake. history application § 5.03. As for the context, And in Texas we I, § Id. at at 627.

art. 9 in this the State con- be naive to just that.1 It would ruling today that a that would allow have done cedes convincing evidence is which adhere to the 1. The Texas cases convincing rely freely voluntarily standard of clear evidence the consent was show that Carolina, Bumper unnecessary v. North whether given." to decide It seems State 20 L.Ed.2d 797 Bumper actually at clear and set standard misplaced argues reliance is since this Paprskar convincing evidence because Bumper actually at clear never set the burden fact, rely solely it also did not on that case. did, and, convincing even if it later extensively case decided relied on Texas construing Supreme the federal con Court cases Bumper, portion from Tex. prior well as a clearly preponder set the standard at a stitution Jur.2d, which states that: Specifically, the State cites ance lightly inferred. is not to be Consent search Paprskar v. the seminal Texas case of 1972), clear and It should be shown (Tex.Crim.App. evidence, voluntary must be proof by consent clear and that "the burden of holds appeals is Court, judgment of the court doing, that this so did assume jurispru- Supreme affirmed. know about preponderance of the evi- adopting a

dence WOMACK, J., dissents. supposi- A more dence standard. believable Court, aware that tion would be that this well MANSFIELD, concurring. Judge, Court has held that the burden twenty-five years, the law nearly For of the evidence does that where the State Texas has been Amendment, the Fourth nevertheless offend volun was conducted after alleged a search the same burden does not concluded given, the if chal tary consent was I, § satisfy of art. 9. In our the demands show, by lenged, must view, disparity justified the fact evidence, voluntarily given. the consent that: (Tex. State, 731, Paprskar v. 484 S.W.2d 737 proof lower will necessar- [A] standard relies, in Crim.App.1972). Paprskar at least ily in involun- result the admission of more holding in part, on the Court’s tary than would be admitted confessions Carolina, 543, 391 88 Bumper v. North U.S. prosecution required to were the meet 1788, which es S.Ct. 20 L.Ed.2d 797 higher standard. convincing evidence tablished the clear and 493, Lego Twomey, v. at at U.S. to show volun the State must meet standard (1972)(Brennan, J., dissenting). given in order tary consent to a search was out, deftly appellee points As the admis- requisites. satisfy to federal constitutional involuntary into sion of confessions evidence Paprskar, in Subsequent holding to our may frequently occur even more in a border the clear and con Supreme Court lowered state like Texas were we to lower the stan- preponderance vincing standard to a proof to a dard standard, applicable determining Indeed, voluntary evidence. free and con- voluntarily given whether a confession was difficulty sent come with more to those Lego v. under the Fourth Amendment. who, many immigrants, like have a 477, 619, Twomey, 404 U.S. understanding English limited lan- (1972). preponderance of L.Ed.2d 618 guage. appli- has been made the evidence standard determining, cable in for Fourth Amendment end, In the the State does not offer voluntary giv- purposes, whether consent us, see, any compelling nor can we reason to search, effect, overruling Bumper en to a depart from the standard of we have Bourjaily v. v. United North Carolina. heretofore demanded the State meet 2775, States, 171, 175-77, 107 S.Ct. showing when of a voluntariness consent (1987); 2779, 97 United States v. L.Ed.2d it, holding to search. As we see Matlock, 164, 177-78, 94 S.Ct. merely prove State need the voluntariness of by preponderance a consent of the evidence free, pursuant to would not lend “concrete substance” to the “Of course the States I, § to standard. mandate of art. 9.2Id. at their own hold, consistently They may appropriate as to the at 629. We thus as we indeed differ have, they at stake.” that the the volun- resolution of the values find State Lego Twomey, v. tariness of a consent to search expressly jury physically psychologically right trial must be nor sel and the to and neither This, writing ... coereced and on the record. waived—in 737, citing Paprskar, 51 Tex. widely so funda- "are considered Jur.2d, Rev., § Part Searches and Seizures functioning adjudica- proper of our mental to p. 722. enjoy special protection tory process to in our State, system.” Marin v. anomaly holding an

2. Such a would also be Surely, ought (Tex.Crim.App.1993). to hold consistently We have treated our con- our law. right free from unreasonable searches to be sanctity. rights For stitutional with the utmost equal esteem. and seizures example, right to the assistance of coun- both persuaded I have never been Garrett (Tex.Crim.App.1993) (Campbell,

framers of the Texas intended dissent- Constitution provide rights protections ing). to those beyond of criminal those accused offenses prece- compels Stare decisis us to overrule provided the United Constitution. States doing dent where the reasons for so are stated—correctly—in As Heitman i.e., compelling, it has become clear that the (Tex.Crim.App.1991), we are precedent has become unworkable or has led not barred the federal constitution from injustice. my opinion, the State has not finding the Texas Constitution regard. persuasion met its in this burden greater criminal than defendants allege, much less The State’s brief does Yet, counterpart. its federal with the does prove, holding Paprskar that our has be- exception of Bauder 921 S.W.2d 696 come an unworkable obstacle for law enforce- (Mansñeld, J., (Tex.Crim.App.1996) significant numbers ment or that it led ing) (interpreting jeopardy the double clause escaping prosecution. individuals broadly of the Texas Constitution more than persuade signifi- me that a State does jeopardy with re the federal double clause cantly greater prosecu- number of successful spect barring after mistrial result retrial prepon- tions have occurred had the would conduct), ing from State reckless/intentional standard, rather derance the evidence of this Court has refrained from than the clear and evidence stan- doing despite opportunities to so so several dard, applicable hearings on motions been hold. suppress the is evidence where issue to a search was vol- whether or not consent Although personally agree I with the State untarily given.1 (and dissent) preponder- with the that the is the better ance evidence standard principle I of stare Because believe the standard, now, adopt demurring after so, me to do I concur in-the requires decisis twenty-five years, would do violence to opinion of the Court. principle of stare decisis. usually policy, the wise Stare decisis is McCORMICK, Presiding Judge, impor- in because most matters it is more dissenting. applicable

tant rule of law be majority respectfully I dissent. The easts right. settled than that it be settled this case as another Heitman1 case which holds, majority í¡c con- ijs íjc ‡ a matter of state as :J: stitutional may properly precedent When be over- voluntariness of a to the trial court the question This a difficult to an- ruled? is consent to search swer, may but we be confident assumption precedent may not particulars properly simply addressing because a Before of be overruled presented in majority opinion it to and the issue of the Court believes be otherwise, case, ap- If rule then I set out an overview error. were I precedent proach no be safe our law believe this Court should would “interpreting” Constitution. The change every change could after Rights Bill contained in the United personnel. The situation would be federal originally was and still is periodic changes intolerable if the States Constitution protect set out therein composition accompa- were intended to The states have by changes rulings. against in its federal action.2 nied course, Constitution is devot- Legislature, free to 2. Most of the United States 1. The overrule Paprskar. significant power It that it has not between the various ed to the division of despite having government done so met over ten times since branches of the federal Paprskar was delivered. retaining powers states with states granted government in specifically to the federal Const., See U.S. (Tex.Cr.App. the federal constitution. S.W.2d 681 1. Heitman occupies 1991). Rights Bill of Amend. X. The federal law); Virginia, Strauder v. West constitutions that secure essential- their own (Fourteenth rights against state action. Amend ly the same 25 L.Ed. emancipated protect an ment intended to That the state and federal constitutions legal discrimina- strike down all race and to essentially the same guarantee intend it); belong who Casa tions those open to much debate. rights should not be (Tex. 484 fn. 9 913 S.W.2d See Heit rez v. recognizes Heitmcm this. Even man, P.J., (McCormick, dissenting) with at 682. Consistent Cr.App.1994) federalism, point is and al principles submission). (op. orig. Rights Bill ways has that the federal been federalism, principles Consistent applicable would not be states. process clause of the Fourteenth the due really how these constitutional issue is not to make the never was intended Amendment interpreted; the issue provisions should be eight to the United States first amendments power. Bauder v. devolves into one (the Rights) Bill of “as federal (Tex.Cr.App. Constitution 1996) (McCormick, P.J., dissenting). applicable Are the to the states. See Palko such” free to their state law without Connecticut, states traditionally in areas that federal intrusion (1937) (what the due L.Ed. 288 states, solely had been reserved to the re- clause of the Fourteenth Amendment the states bound a “Procrustean bed depend basically quires of the states does in these areas? See precedents” federal eight on what the first amendments Ohio, Mapp v. requires constitution (1961) (Harlan, J., 1684, 1705,6 L.Ed.2d 1081 Malloy, 378 U.S. at government); see also dissenting). 13-38, 25-27, states, Shortly after the war between the (Harlan, J., 663-77, 670 dis- 12 L.Ed.2d at adopted the Fourteenth Amendment was (“due senting) process of law” formulates part of the United States Constitution. The rigid fluid than those concept less and more guaran Amendment is a federal Fourteenth specific particular envisaged in other and essentially tee directed to state action and it Rights); provisions the federal Bill of deprive that a state a citi 682-83, 677-69, 81 S.Ct. at Mapp, 367 U.S. at “life, liberty property” or zen of without “due (federal (Harlan, J., dissenting) Malloy Hogan, process of law.” See procedures against the courts review state 1, 13-37, 1489, 1496-1509, U.S. 84 S.Ct. process clause of flexible contours of the due (1964) 1502-04, 653, 663-77, against and not the Fourteenth Amendment (“due (Harlan, J., dissenting) process of law” specific commands of the the substantive against is secured invasion the federal Amendment). Palko cites several Fourth Amendment, government the Fifth and is the Fourteenth Amend- cases which decided against safeguarded state action identical doing from prohibit ment did not the states Amendment). by the Fourteenth words things Consti- certain that the United States history especially timing of the Four and the prohibited government tution federal originally teenth Amendment indicate it was Palko, 323-25, at doing. from See 302 U.S. protect of black Amer intended (e.g., Fourteenth Amend- 58 S.Ct. at 151-52 arbitrary capricious state ac icans from from abolish- prohibit a state ment would See, e.g., Plessy Ferguson, 163 U.S. tion. compelled ing right of an accused 542-44, 16 1138, 1140, S.Ct. L.Ed. 256 “orderly inquiry” because incrimination (Har 554-57, (1896), at at 1145 S.Ct. very of a right is not “of the essence lan, J., (object Fourteenth dissenting) liberty” could scheme of ordered undoubtedly was to enforce the Amendment done). justice still be equality races before the lost and absolute two few, precious, rights grant portion intended to but of the United States Constitution. small right political process. subject fundamental our Founders be- most are not upon right was the to decide for our- Rights stowed us rights granted Bill of to us in the federal process through political we will selves how part self-explanatory. are for the most Rights federal Bill of order our affairs. The However, intruding upon traditionally recent times the federal areas had have courts used Fourteenth Amendment solely to each state been left to decide under ways expand greatly more than one to its state law. See J.E.B. v. Alabama ex rel. power traditionally federal into areas that T.B., 127, 150-52, 511 U.S. S.Ct. solely to had been reserved the states.3 The (Kennedy, 128 L.Ed.2d 89 process federal courts have used the due (much concurring) passed time clause of the Fourteenth Amendment thought Fourteenth Amendment was provisions of the make most of the beyond purpose prohibiting reach ra- Rights applicable every Bill state discrimination). may explain why This cial country effectively intruding areas that attempted to the federal courts have never traditionally solely had been left to each “ precision pro- define with the words ‘due See, state to decide under its constitution. ” Malloy, law.’ at 21- cess of 378 U.S. 15-17, 13-34, e.g., Malloy, at 1500-02, at 84 S.Ct. L.Ed.2d 1496-1507, 1497-99, L.Ed.2d (Harlan, J., dissenting). (result 663-74, (Harlan, J., dissenting) And, courts, approach process claiming such an to due is “com- to inter- pelled uniformity” have, which is inconsistent with pret the Fourteenth Amendment most- federalism); principles Mapp, oxymoron ly through the use of an called 672-85, (Harlan, J., at 1701-08 dis- process,”4 simply imposed “substantive due senting). personal policy preferences upon their country many taking areas whole of these applied also have

The federal courts these matters out of the realm of each state’s Fourteenth Amendment to areas which it process originally political also for its citizens to decide or never was intended to lives, power protect of the state to 3. United States Court cases decided citizens, shortly adoption liberty, property after the of the Fourteenth of its nor with power adjudications Amendment took a much narrower view than the exercise of that in the administering do now of what constitutes "due of the courts of a state in See, e.g., Kentucky, process provided by law.” Howard v. of the state. The law 164, 170-72, 189, 190-91, supreme Michigan 50 L.Ed. 421 court of did not exceed its Humes, (1905); Ry. jurisdiction, abridging judgment Missouri Pac. or deliver immunities, appellant's privileges depriv- 29 L.Ed. 463 or (1885) (if ing the laws enacted a state be within him of the law of the land of his domicile. (Citations Omitted).” sphere power, legitimate legislative their be attended with the enforcement observ- general system 4. The federal courts have stated that "substantive ance of those rules which our process” prevents government jurisprudence prescribes security pri- due from en- for the harshness, injustice, oppres- gaging the conscience" rights, vate in conduct “shocks rights "implicit concept interfering in the invalidate or with sive character of such laws will not Salerno, life, liberty.” liberty, property v. affecting of ordered See United States them as or without 2095, 2101, 739, 746, law). process examples 95 I 481 U.S. 107 due One of the best However, (1987). process United States application due L.Ed.2d 697 Supreme have found of an of the shortly originally Court cases decided after clause as it was intended to is Converse, 624, adoption parte Amendment have U.S. of the Fourteenth contained in Ex 630-32, 137 191, 193, misconception “strange stated this is a of the 34 L.Ed. 796 11 S.Ct. case, concept scope” applied of the Fourteenth Amendment. In that the Court Humes, 115 U.S. at 6 S.Ct. at 112: "due oflaw” as follows: "But, persons "Appellant subjected, from the number of instances in which has been as all are, Michigan invoked to set [the is] to the law in Fourteenth Amendment within the state of states, legislation regular through of the there is abun- its course of administration aside the evidence, justice, impossible Mr. Justice Mil- courts of and it is to hold dant ler, as observed to, there exists judgment arrived at an unre- in the case referred 'that that a so is such misconception scope arbitrary power strange of the strained and exercise of as to some utterly repeat, provision, in the fourteenth be void. We as has been so as found states, before, seems, as he to be often said that the fourteenth amend- amendment.' It depri- bringing undoubtedly any arbitrary a means of to the test forbids looked 'as ment life, and, opin- liberty, property, this court the abstract in the of the decision of vation litigant justice, requires every in a state ions of unsuccessful administration of criminal him, justice higher punishment decision court of the that no different or shall legislation imposed on which imposed offenses, than on all for like and of the merits on one is " may designed be founded.’ to interfere such decision but it was not

249 criminal law in the realm of system courts to judicial process for its state’s each being “com- the result Denno, See, enforcement” 378 e.g., Jackson decide. of all rele- uniformity” disregard pelled 426-28, 12 84 S.Ct. U.S. between may exist (1964) which (Harlan, J., vant differences dissenting);5 L.Ed.2d enforcement); criminal law and federal state Wainwright, 372 U.S. see also Gideon 679-81, at 81 S.Ct. Mapp, 367 U.S. 792-97, 335-46, 9 L.Ed.2d 83 S.Ct. (Harlan of a J., (preservation dissenting) (1963) (federal a state requires constitution state and federal between proper balance ac- lawyers indigent criminals to furnish of crimi- responsibility in the administration citizens); against its cused of serious crimes patience justice nal demands Illinois, 367, 369-71, but see Scott v. to their want the states to conform those who 1158, 1160, be). things ought to views of how (there the Sixth is considerable doubt itself, originally drafted Amendment developments, I of these federal Because Rights, of the Bill of contem- the Framers position that the federaliza have taken the any right other than the plated guarantee law the vast of this criminal tion State’s in a in a criminal an accused power into areas expansion of federal employ lawyer to assist federal court solely to the traditionally had been reserved defense).6 approach to con- The federal his con preempt any “independent” state states interpretation havoc Bander, stitutional has wreaked analysis. See S.W.2d stitutional (McCormick, P.J., in the realm of state criminal law enforce- As dissenting). at 706-07 ment, principles illustrates, is inconsistent with of feder- foregoing discussion by upsetting proper balance be- compelled alism really “independent” as we are responsibility prece in the tween state and federal of federal to follow a “Procrustean bed justice, repre- of criminal at Mapp, administration areas. dents” these (Harlan, J., liberty dissenting); threat to our sents serious 81 S.Ct. at (Clin 13-17, Bauder, Malloy, freedom.7 See at 700-01 compare (Har- with, Bander, 1496-99, ton, J., concurring), S.Ct. at L.Ed.2d J., (McCormick, P.J., lan, dissenting) (reasoning behind the at 706-07 majority says will “extremely ing). mischie- this Court Court’s decision carried When vous, “independently” interpret the Texas Consti- dangerous, consequences if for our even standard dissenting opinion der the “shocks the conscience” 5. Justice Black’s in Jackson "plain” language though of the Fourteenth correctly problem as fol- Denno summarizes says expressly otherwise. See Fur Amendment lows: 257-305, Georgia, man v. 2726, 2736-60, "My is in its wide difference with the Court (1972) (Brennan, L.Ed.2d 346 apparent holding that it has constitutional 360-61, J., concurring) and at change procedures power state trial because (Marshall, concurring) is no of its belief that are not fair. There (death penalty for all is in all circumstances " provision gives the Court constitutional ‘shocks crimes unconstitutional ’ assume, law-making power. I al- such ”) justice people and sense conscience opinion though is not clear on this the Court’s Const., (emphasis supplied); Amend. but see U.S. point, holding 'due that the basis for its is the (state “life, deprive a citizen of XIV process of the Fourteenth of law' clause liberty property” "due of without or appears to a Amendment. The Court law”) supplied). (emphasis follow judicial philosophy on that which has relied procedures in to strike down laws and clause Denno, 7. See, e.g., U.S. at Jackson judicial they many because a J., (Black, dissenting) (today’s of belief fields 84 S.Ct. at 1796 ‘unfair,’ contrary concept or- to ‘the are are prisoners in holding of of means that hundreds conscience,' liberty,’ or come 'shock the dered after the have been convicted New York state vague appealing catch other but within various says now is uncon of trial which the Court kind Jackson, Omitted).” (Citations phrases. stitutional; See today’s disruptive which effect (Black, at 1797 crimi the administration of will have on decision dissenting). (Emphasis Supplied). country throughout undoubt justice will nal edly great, before the Court’s decision be and old, Georgia example, to vacate day in Furman v. the Court relies on it 6. Another even a Arizona, Pennsylva Supreme justices United States in cases from two convictions nia, Texas, least of Colum penalty New York and the District the death in all Court would have held bia). un- United States Constitution cases violates the tution, I, Constitution, they appreciate significance fail to ele Section of the Texas developments of previously dis- like the Fourth to the Amendment cussed. constitution, protects us from unreasonable government. and searches seizures developments, Given these federal it is interpret we are our When called pointless “independently” inter exercise constitution, give effect duty is to to the pret our constitution. Under this Court’s adopted it intent of the who voters whether past approaches to inter state constitutional agree policy with choices not. their pretation, only can of this have the effect Appeals, See Fourteenth Court increasing rights further of criminal de Lanford (Tex.Cr.App.1993). explosion rights in addition to fendants for in the 1950s no criminal defendants we saw There is evidence the voters voted for I, Bau proof and 1960s federal courts. See in Section 9. That burden Article der, at 706.8 is the time to Now powerless not mean does courts fash- Autran, exercising judicial restraint. See proof upon particular party ion a burden (McCormick, P.J., traditionally courts have done ab- ing). authority. contrary legislative sence of How- ever, carry out the policy courts do this to approach to state “inter constitutional expressed provision in the constitutional pretation” preferable I advocate to the also is part do this as issue. Courts not do majority’s approach my approach provision constitutional itself. gives police prosecutors clear notice of legal the “parameters within can Citing what characterizes as “semi- ly operate,” fairly protects and it Paprskar nal Texas case” of Bauder, of criminal defendants. See majority claims it has been well-settled (McCormick, P.J., dissenting). S.W.2d at prove that the must approach practical Such an also has benefits. of a consent trial court voluntariness ap this approach, See id. Under trial convincing clear search pellate courts in cases would have to like this Paprskar v. single one substantive rule with (Tex.Cr.App.1972) (prosecution ap proof. majority’s burden Under the convincing clear and evidence con- proach, appellate trial and courts have to freely voluntarily given). sent apply two substantive rules with different majority recognizes Paprskar relied in the burdens no difference Supreme on the Court’s United States majority in the cases. final results vast Bumper v. North Carolina for decision This is an inefficient use of valuable re Carolina, Bumper this rule. See v. North sources. 20 L.Ed.2d 797 Notwithstanding foregoing, the issue (1968).9 present case a constitutional does argues Bumper never set “the question. presents issue in The State this case and, Arti- preliminary question admissibility. burden at clear and evidence Moreover, precedent likely it also is that our constitution Court for the standard, protection actually provides less what the than yet refuses to of com- federal constitution on matters precedent Supreme United follow States Bauder, subject. See S.W.2d at 706 fn. mon 5 deciding when it comes to whether abandon P.J., (McCormick, dissenting); Heitman v. the lower this standard Unanswered, 23 St. Question State: The Left this Court has of the evidence standard. If relied (1992) (and Mary’s L.J. authorities precedent on United States therein). cited standard, why it not then does now precedent rely Supreme United Court on States Paprskar 9. inter- It is not even clear whether the lower in this first case here to for standard preting Paprskar, 484 See constitution. present the issue United Su- since the States But, was, if clear it was S.W.2d at 737. relying it it is And, preme the Court lowered the standard? if Supreme part least in on States United well-settled, why did the Court issue is so then doing precedent id. It is curi- in so. See Court discretionary petition grant the review in this majority recognizes for this Court in ous the Supreme Paprskar on States case? relied in United clear by to search did, consent Supreme if it eases untariness even later convincing clearly set and evidence.10 construing federal constitution the evi- preponderance standard at a the majority’s approach question to the majority claims it is unneces- dence.” apparently in also is this case presented Bumper actually set sary to decide whether They to follow policy. on decline based convincing evidence the standard at clear and the placed which States v. Matlock United Paprskar extensively on also relied prove to to the prosecution on the burden prior Bumper for Texas case law decided to to the a consent trial court voluntariness standard. the clear and evidence the evidence. search Matlock, 164, v. See United States Paprskar on While is true also relied 988, L.Ed.2d the required cited case law which and (1974). And, majority to the declines prove the prosecution to voluntariness Lego v. set out in rationale search, cases on consent to these were silent the claim that the Twomey rejecting for proof the prosecution’s burden of before the to have a burden should prosecution State, Tex. Compton trial court. v. See of a See prove the voluntariness confession. (burden 74, (1945) Crim. 186 S.W.2d 477, 488-89, 92 Lego Twomey, proving upon to search consent rests the (1972) (prose- prosecution); Tex.Crim. Scott prove of a con- cution must the voluntariness (jury should evidence). by preponderance fession give the have been instructed to defendant benefit of reasonable doubt on the issue However, wholly majority fails to ad- search); to consent Frazier v. why the set out dress federal rationale Tex.Crim. adopted a matter Lego should not also be as upon Paprs- The Texas cases which Lego, law. of state support kar relied do for proposition prosecution’s burden declined to escalate the they Paprskar which cited in in this and prove the of a for to voluntariness confession case. following reasons: cause, good unwilling to pros- Scott and also we are Frazier dealt with “Without applicable exclusionary proving jury expand currently ecution’s burden to the not, to erecting voluntariness of a consent search and rules additional barriers here, prosecution’s proving placing probative evidence burden of truthful by revising trial juries court the of a con- state voluntariness Scott, proceed- in collateral applicable sent to search. See at 788 standards S.W.2d (jury give ings. moving should further have been instructed to Sound reason here defendant the benefit of doubt on this direction has not been offered reasonable Frazier, consent); present at the time. issue of at 599 nor do we discern S.W.2d (jury acquit particularly if it had This is true since the exclu- instructed to defendant sionary very much at de- rules are aimed reasonable doubt on whether he consented search); terring police cf. Compton, 186 lawless conduct very that es- (prosecution presented prosecution evi- and it is doubtful uncontroverted consent; therefore, calating prosecution’s trial burden of dence defendant’s suppres- required to submit issue to in Fourth Fifth Amendment court was not jury hearings produc- jury give and instruct the defen- sion would be sufficient outweigh public respect on the tive in this dant the benefit of reasonable doubt issue). Therefore, probative be- placing it should be consid- interest juries purpose arriving at prose- fore for the ered so well-settled Texas that the guilt or inno- must to the trial the vol- truthful decisions about cution court Paprskar relied same authori- also cites v. State for Juarez Juarez Paprskar proposition prove the relied. These authori- ties proposition support for which ties do not of a consent search voluntariness Juarez, majori- Paprskar are cited and the Juarez However, 1988). (Tex.Cr.App. ty opinion in this case. 488-89, Lego, 404 at require judge jury pass cence.” U.S. S.Ct. that both (Emphasis Supplied). upon admissibility at 626. of evidence con- when grounds excluding stitutional are asserted for majority why explain does not it is it). And, jury, if the issue is submitted to necessary, as a matter of state to contin provide jury these statutes further that placing ue to have “additional to barriers beyond must find a reasonable that the doubt probative truthful and evidence” legally evidence was obtained. Article See jury. majority id. The not tell us See does 38.23(a); 38.22, Article Section 6. imposing higher prose why a burden on prove circumstances, to the prosecu- cution trial court volun- these Under a outweighs permitted tariness of consent to search tion to the trial should public in placing probative “the interest evi court the voluntariness of a consent to search n juries purpose dence before for the of arriv a of the evidence. This ing truthful guilt proper compet- at decisions about inno strikes balance a between all And, majority position See id. The ing contrary cence.” also does not interests. to the say holding apprecia their -will aby majority how result taken States United Denno, by police ble I Supreme deterrence lawless conduct v. also Court Jackson this, However, prosecutors. juries See id11 to make trust these determinations happens majority fairly accurately. what when the continues to approach interpre follow an to constitutional brings again This us once Jackson completely rights that tation exalts the case, Denno. In the United Su- States criminal defendants over the of law- preme Court decided about one-third abiding citizens approach instead of an procedures determining states’ volun- competing these often balances interests. (the rule) a tariness confession York New Bauder, (McCormick, See process violated the due clause of the Four- P.J., dissenting). Denno, teenth Amendment. See Jackson v. 369-97, “independently” If this Court must inter- at 84 S.Ct. at 1777-91.12 U.S. constitution, pret procedure our I would hold- The struck down in Jackson reasoning ing Lego. provided of Matlock and the that if a factual Denno there existed Lego attempts least dispute at to balance inter- to the confes- voluntariness of a sion, criminal ests of defendants the inter- court the trial had to submit the issue society. Denno, ests of jury. See Jackson v. 377-82, at S.Ct. at 1781-83. addition, provide pro- In our statutes more Supreme than the federal tection constitution The United States Court decided judge jury pass procedure permitting both this violated due admissibility juries of evidence when could be trusted to decide these fairly accurately. “in claim is made that was obtained viola- issues See Jackson 38.23(a), Denno, 386-91, 405-06, tion the law.” U.S. See Article at and at V.A.C.C.P.; 38.22, 1786-88, (Black, J., Article Section S.Ct. at and at 1796 V.A.C.C.P; 489-90, (juries see at Lego, also can be decide dissenting) U.S. trusted to (federal issues). at 626-27 constitution does factual Texas apparently followed Heitman, Yet, dissenting opin- Relying on Justice Brennan’s See 815 S.W.2d at 690. ulti- " Lego, majority say majority mately effectively ion in does 'lower learn relies proof necessarily standard of will result in the opinion Supreme dissenting from a United States involuntary admission of more than confessions holding Lego, for its Court case this case. required would be admitted were the 491-93, J., (Brennan, 92 S.Ct. at 628 ” higher Lego, to meet 491-93, standard.’ U.S. at So, dissenting). blindly following are we now J., (Brennan, dissenting). 92 S.Ct. at 628 opinions dissenting from the Su- United States However, assuming proposi- validity of this interpret preme our constitution? tion, ways. cuts both standard of A necessarily will result in the exclusion of Denno, at Jackson v. 399- 12. But see voluntary more confessions. (Black, J., 1793-1805 (Clark, addition, ing), and at this Court said J., dissenting), "blindly and at at 1807- follow” will not United States (Harlan, interpreting dissenting). precedent in constitution. in Jackson v. procedure struck down 9, Denno, at 378-79 fn. 9, 405-06, 416-18, 84 at 1782 fn. J., 1796, (Black, and at

ing). Denno, response Leg- to Jackson v. 38.22, compelled to Article

islature was enact 6,13 amend Article 38.2314 to

Section procedures in

bring our line with Therefore, I

mandate Jackson Denno.

would procedure now

evidence standard since the has been federalized as the interpretation of the of another federal

result Amendment’s clause.

Fourteenth due

I dissent.

KELLER, joins this dissent.

Roger SLEDGE, Appellant, Dale Texas, Appellee.

The STATE of

No. 1214-95. Texas, Appeals

Court of Criminal

En Banc. Ford, Worth, Sept. appellant. 1997. Fort Robert Atty., Fort Goggan, Asst. Dist.

M. Susan Austin, Paul, Worth, Atty., Matthew State’s for the State.

Before the court en banc. PETITION APPELLANT’S OPINION ON REVIEW DISCRETIONARY FOR KELLER, Judge. in this presented issue

Appellant right to involving a between the case as clash vol.2, Leg., p. vol. ch. Leg., p. 14. 59th 59th ch. See Acts 13. See Acts 38.22, procedures Article 722. The set out in commonly to as a Section are even referred hearing. v. Denno Jackson

Case Details

Case Name: State v. Ibarra

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 10, 1997

Citation: 953 S.W.2d 242

Docket Number: 1360-95

Court Abbreviation: Tex. Crim. App.