IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. 1253-98 & 1254-98

JERRY ROBERT DAVIDSON, Appellant

v.

THE STATE OF TEXAS


ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

Johnson, J., delivered the opinion of the Court, in which Meyers, Price, Holland and Womack joined. McCormick, P.J., filed a dissenting opinion, in which Keller and Keasler, J.J., joined. Mansfield, J., filed a dissenting opinion.


O P I N I O N

Appellant Jerry Robert Davidson was convicted by a jury of indecency with a child by contact and aggravated sexual assault of a child under 14. The jury assessed his punishment at 20 years confinement and a $10,000 fine in the indecency with a child case and 99 years confinement and a $10,000 fine in the aggravated sexual assault case. The Court of Appeals affirmed his conviction. Davidson v. State, 977 S.W.2d 708 (Tex. App. - Fort Worth 1998). We granted appellant's petition for discretionary review on the following ground: Did the Court of Appeals err in affirming the trial court's denial of petitioner's motion to suppress testimony regarding oral statements made by petitioner which were governed by Tex. Code Crim. Proc. 38.22? We reverse and remand.



FACTS

Appellant's two daughters accused him of sexually abusing them. Early in 1995, while an investigation into those allegations was pending, appellant and his wife joined a traveling carnival. In June 1995, they went into Canada with the carnival. In July 1995, as the carnival prepared to re-enter the United States, Special Agent Chuck Mazzilli of the United States Customs Service ran a routine check on all the carnival workers. His check for outstanding warrants revealed a Texas arrest warrant for appellant.

On July 24, 1995, when appellant crossed the border into Great Falls, Montana, Agent Mazzilli detained him and read him his Miranda rights. (1) Mazzilli testified that, following questioning by Mazzilli, appellant implicated himself in the sexual abuse of his two daughters. (2) Three weeks later, on August 15, 1995, Agent Mazzilli wrote a report in which he recorded his recollection of appellant's statements. No other record of appellant's statement exists. Agent Mazzilli testified at trial as to his recollections of appellant's statement, as recorded in his report. Appellant's wife and both daughters also testified about the sexual abuse.

The trial court ruled that, as a matter of public policy, the statements were admissible under the Full Faith and Credit Clause of the United States Constitution because Mazzilli had complied with both Montana and federal law in obtaining the statements. Davidson, 977 S.W.2d at 709. On appeal, the Court of Appeals determined that, although they were not recorded electronically pursuant to art. 38.22, appellant's statements should be afforded full faith and credit in Texas. Id. at 712.



ANALYSIS



Tex. Code Crim. Proc. art. 38.22 provides, in relevant part:



Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

****

(e) The courts of this state shall strictly construe Subsection (a) of this section and may not interpret Subsection (a) as making admissible a statement unless all requirements of the subsection have been satisfied by the state, . . . . (Emphasis added.) (3)

It is undisputed that appellant's statements to Mazzilli were not electronically recorded and are not in compliance with art. 38.22, 3(a)(1). By its plain language, art. 38.22, 3(e) requires strict compliance with all portions of 3(a), which sets out when a defendant's custodial statements may and may not be used as evidence against him or her. Because appellant's statements were not recorded in accordance with the dictates of art. 38.22, it would appear that they were inadmissible at appellant's trial. However, the statements were admitted on the basis of the Full Faith and Credit Clause, and the Court of Appeals affirmed on that basis. Davidson, 977 S.W.2d at 712.

Art. IV, 1 of the United States Constitution requires that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." The non-judicial statements admitted in this case clearly are not themselves public acts, records or judicial proceedings. Instead, the question here is whether the statements are admissible at trial in Texas because they would be admissible in a Montana court under Montana law. Because the laws of Montana and Texas conflict as to the admissibility of the statements, we must decide which law prevails and, thereby, whether it was error to admit the statements at trial.

On its face, the Full Faith and Credit Clause requires that "full faith and credit" be given by each state to the "public acts" (i.e., laws) of every other state. However, as the Court of Appeals noted, "there is no constitutional requirement that a State yield to the law and statutes of another state in all circumstances." Davidson, 977 S.W.2d at 710. As the Supreme Court has stated, "A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own." Alaska Packers Ass'n v. Indus. Accident Comm'n of California, 294 U.S. 532, 547, 55 S. Ct. 518, 523, 79 L. Ed. 1044 (1935).

Generally, a weighing of various conflicting interests determines whether the law of another state is applicable in the forum state. See Davidson, 977 S.W.2d at 710 (citing Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S. Ct. 2117, 100 L. Ed.2d 743 (1988) and Hughes v. Fetter, 341 U.S. 609, 71 S. Ct. 980, 95 L. Ed. 1212 (1951)). One of the basic tenets of conflict-of-law resolution, however, is that the law of the forum in which the judicial proceeding is held determines the admissibility of evidence. Davis v. State, 645 S.W.2d 288, 291-292 & n.5 (Tex. Crim. App. 1983); see also Restatement (Second) of Conflict of Laws 138 (1971); David D. Siegel, Conflicts in a Nutshell 63 (2nd ed. 1994); Dicey and Morris on the Conflict of Laws 1099 (J.H.C. Morris ed., 9th ed. 1973); George Wilfred Stumberg, Principles of Conflict of Laws 140 (3rd ed. 1963).

Considerations of efficiency and convenience require that questions relating to the admissibility of evidence, whether oral or otherwise, should usually be determined by the local law of the forum. The trial judge must make most evidentiary decisions with dispatch if the trial is to proceed with reasonable celerity. The judge should therefore, as a general rule, apply the local law of his own state.



Restatement (Second) of Conflict of Laws 138 cmt. a; see also Eugene F. Scoles and Peter Hay, Conflict of Laws 12.10 (1984).

Art. 38.22 is located in the Code of Criminal Procedure and deals with an evidentiary matter: when oral statements by an accused, made as result of custodial interrogation, are admissible against the accused in a criminal proceeding. The plain language of art. 38.22, 3(e) requires strict compliance with all portions of 3(a), which sets out the specific conditions which must be satisfied before such statements may be used as evidence against a defendant. In Tigner v. State, 928 S.W.2d 540, 546 (Tex. Crim. App. 1996), we held that this language applied to 3(a)(5), and required that we "strictly advance [the Legislature's] purpose to declare inadmissible all custodial statements not provided to defense counsel with ample time to effectively challenge their admissibility." Art. 38.22, 3(a)(1) makes no distinction between in-state and out-of-state oral statements, made as a result of custodial interrogation, which are not in compliance with its dictates. Thus, we are similarly required to advance the Legislature's purpose to declare inadmissible all such statements unless an electronic recording is made of them. Therefore, we hold that the Court of Appeals erred in concluding that the testimony regarding oral statements made by appellant as a result of custodial interrogation was admissible against appellant. (4)

The judgment of the Court of Appeals is reversed, and the cause is remanded for a harm analysis.

Johnson, J.











Date Delivered: May 24, 2000

En Banc

Publish

1. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).

2. According to the state's brief, appellant "never admitted" that he had molested his daughters. State's Brief on Petition for Review, at 4-5. According to appellant's brief, appellant "made certain oral admissions." Brief for Appellant, at 4. Our review of the record indicates that appellant made statements which implicated him in the assaults on his daughters.

3. The exceptions in art. 38.22, 3(e) are not relevant to the instant case.

4. In holding that appellant's statements were properly admitted at trial, the Court of Appeals found that its holding was supported by, inter alia, Alvarado v. State, 853 S.W.2d 17 (Tex. Crim. App. 1993). Davidson, 977 S.W.2d at 711-712. However, in Alvarado we held that a defendant's confession, which had been obtained by Mexican police who were not acting as agents for the Texas police and who had failed to comply with the requirements of Miranda, was not excludable under either Tex. Code Crim. Proc. art. 38.23 or the federal exclusionary rule. Alvarado, 853 S.W.2d 24-25. We specifically stated that "[n]o question of whether the admission of the confession violates any of the provisions of article 38.22 of the Texas Code of Criminal Procedure is presented in this appeal." Id. at 18-19. We also noted that we considered art. 38.22 an evidentiary rule, rather than an exclusionary rule. Id. at 19 n.3. Therefore, Alvarado has no applicability to the instant case.

Presiding Judge McCormick argues that art. 38.22 is a "substantive exclusionary rule." Post, at ___ (slip op. at 5-6) (McCormick, P.J., dissenting). However, an analytical comparison with art. 38.23 shows that art. 38.22 is a procedural evidentiary rule, rather than a substantive rule. Art. 38.23 provides in relevant part:



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.



While both arts. 38.22 and 38.23 govern when certain evidence shall and shall not be admitted at trial, they do so in very different terms. Art. 38.23 mandates exclusion of evidence when it has been obtained in contravention of legal or constitutional rights. As such, it is properly identified as substantive in nature, as it is an attempt to provide a remedy for a violation of those rights. See, e.g., Jackson v. State, 968 S.W.2d 495, 499 (Tex. App.--Texarkana 1998, pet. ref'd) (laws that invoke art. 38.23 exclusionary rule are those that protect rights and interests of citizens from infringement by the State); Johnson v. State, 864 S.W.2d 708, 724 (Tex. App.--Dallas 1993) (with art. 38.23, legislature provided legal remedy for suspect whose statutory or constitutional rights had been violated), aff'd, 912 S.W.2d 227 (Tex. Crim. App. 1995); Imo v. State, 826 S.W.2d 714, 714 (Tex. App.--Texarkana 1992, no pet.) (art. 38.23 is more protective of individual rights than federal constitution).

In contrast, art. 38.22 merely prescribes the various requirements that must be satisfied before a statement made by an accused as a result of custodial interrogation will be admitted against him/her at trial. That such requirements are not met does not mean that the statement was necessarily obtained as a result of any legal or constitutional violation, and art. 38.22 mandates exclusion of such statements by its own terms and without reference to art. 38.23. As such, it more closely resembles our various rules of evidence which determine the admissibility of contents of writings, recordings, and photographs. See Tex. R. Evid. 1001-1009. Thus, art. 38.22 is more appropriately characterized as a procedural evidentiary rule.