I agree with the majority that the court of appeals erred in holding that Gonzales's statement was automatically inadmissible. But I would analyze the issue slightly differently.
In Johnson v. State, (1) we made clear that the attenuation doctrine is applicable to Article 38.23. We explained that Art. 38.23 excludes evidence that is "obtained" in violation of the law, and "evidence sufficiently attenuated from the violation of the law is not considered to be 'obtained' therefrom." (2) We further explained that "the attenuation doctrine is not an exception to Art. 38.23, but rather is a method of determining whether evidence was 'obtained' in violation of the law." (3)
The court of appeals found a violation of Family Code § 52.02(b) and then concluded that the statement was automatically inadmissible. The court relied on our opinion in Vie Le v. State (4) for this conclusion. But the court misunderstood that holding. In Vie Le, we correctly applied Art. 38.23 to the Family Code violation, but in that case, there was no question that the statement was obtained as a result of the Family Code violation. There was no need for the Court to expound on the issue. The fact that we did not address the lack of any attenuation in Vie Le does not mean that we overruled Johnson.
The appellate court did not consider, pursuant to Johnson, whether Gonzales's statement was "obtained" as a result of the violation of the Family Code. Therefore, I agree with the majority that this case should be remanded for the appellate court to consider that issue.
With these comments, I concur in the court's judgment.
DATE DELIVERED: February 13, 2002
1. 2. 3. 4.
1.871 S.W.2d 744 (Tex. Crim. App. 1994).
2.Id. at 750.
3.Id. at 751.
4.993 S.W.2d 650 (Tex. Crim. App. 1999).