NO. 0722-00








Keller, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.


In explaining why testimony about the physical evidence in this case should have been suppressed, the Court relies upon language in Comer(1) explaining why the evidence in that case should have been suppressed. The Comer court said:

We cannot say with any degree of confidence that, had appellant been transported "forthwith" to the custody of the juvenile detention facility...he would still have chosen to confess his crime.

In Comer, then, the Court left open a door to the admission of evidence if the child "would still have chosen to confess his crime." In other words, evidence should not be suppressed if an appellate court can say with confidence that the evidence would have been obtained even if the child had been taken "forthwith" to the detention facility. I believe the evidence in this case fits through that door.

Before appellant led police to the stolen property, he told them he wanted to cooperate. He told police that he had and two others had robbed a woman at a Mobil station and said he would lead them to the location where some of the stolen property had been taken. So, appellant had already confessed at the time he offered to lead the police to the stolen property. Finding the stolen property happened during the detour, but it was not caused by the detour; it was caused by appellant's desire to cooperate. In other words, there was no causal connection between the detour and the finding of the property.

Article 38.23 provides:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

Obtained "in violation of" does not mean obtained "during a violation." It means obtained "because of a violation."(2) As the Court of Appeals said, "The exclusionary rule is applicable to those violations that are related to the purpose of the exclusionary rule - deterrence of unlawful police activity and judicial integrity."(3) That court concluded that the conduct of the police in this case, "in no way caused appellant to make the statements."(4)

In Johnson v. State, we held that if evidence is not "obtained" in violation of the law, then its admission at trial does not contravene article 38.23.(5) We explained that the attenuation doctrine is not an "exception" to article 38.23 but is, rather, a method of determining whether evidence was "obtained" in violation of the law. In Bell v. State(7) we pointed out that "evidence is not excluded simply because it is discovered at a point in time after an illegal detention." If evidence is not the product of the illegality, it should not be suppressed.(8) On the facts of this case, I would hold that the physical evidence in this case was not obtained in violation of the law.

I have another disagreement with the Court's opinion. The Court makes an exception to its holding that § 52.02 is to be construed strictly by allowing for the possibility that evidence would be admissible if there were exigent circumstances. I do not know the source of this exception. We have never held that there is an "exigent circumstances" exception to the requirements of either § 52.02 or article 38.23. It seems the Court is saying that if it were really, really necessary, we would not strictly enforce those statutes. I find no justification for applying such a case-by-case balancing test. If the Court is going to say, as it does today, that evidence is inadmissible if obtained in violation of the "without taking the child anywhere else" language of § 52.02(a), then that holding should apply to all cases.

Moreover, if exigent circumstances permit the introduction of evidence this Court finds to have been obtained in violation of § 52.02, then we should assume that the trial court found such exigent circumstances and defer to that implied finding. The trial court could reasonably have believed that when a confessing offender offers to lead police to evidence of a crime, it would be irresponsible for the police to say, "No thank you." There is always some degree of exigency when collecting evidence - that is why police go to crime scenes promptly instead of waiting a week or two.

I respectfully dissent.


DATE FILED: November 14, 2001


1. Comer v. State, 776 S.W.2d 191 (Tex. Crim. App. 1989).

2. In contending that this distinction is meaningless, the Court relies upon Ebarb v. State, 598 S.W.2d 842 (Tex. Crim. App. 1980)(opinion on rehearing). But the defendant in Ebarb consented after she was illegally stopped. The police would never have procured her consent absent the illegal activity; so, her consent could not constitute an independent cause for obtaining the evidence. On the other hand, appellant's offer of cooperation occurred before the illegal detour. That offer of cooperation was untainted by illegality and evidence obtained as a result of that offer is not obtained in violation of the law.

3. Roquemore v. State, 11 S.W.3d 395, 400 (Tex. App. - Houston [1 Dist.] 2000).

4. Id.

5. Johnson v. State(6)


7. Bell v. State, 724 S.W.2d 780, 787 (Tex.Cr.App.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987).

8. See, e.g., Maixner v. State, 753 S.W.2d 151 (Tex. Crim. App.1988). (Statements were not obtained by the exploitation of illegal arrest.)