NO. 1300-98

MARIA M. CHAVEZ, Appellant






Price, J., delivered a concurring opinion, in which Meyers, J., joined.

C O N C U R R I N G  O P I N I O N

I agree with the majority that appellant lacks standing to argue about an alleged violation of Article 38.23 of the Texas Code of Criminal Procedure on the facts presented. As succinctly stated by Professors George E. Dix and Robert O. Dawson:

. . . given the number and nature of statutory requirements that might be violated in the acquisition of evidence, reading [Art. 38.23] as applicable without qualification to all "laws" is arguably so absurd that it cannot reflect legislative intention. If the Court of Criminal Appeals is going to regard "laws" as somehow limited, it should explicitly acknowledge this and make clear the criterion for identifying laws not sufficient to invoke the statute.

. . . the fairest reading of the statute is that it must have been intended to permit challenges to evidence on the basis that the evidence was obtained in violation of a "law" that serves to protect individual's personal and property rights from infringement by others, whether those others are acting in official capacities or not. "Laws" serving other functions, then, would not be a sufficient predicate on which to base an article 38.23 objection to prosecution evidence.

40 George E. Dix & Robert O. Dawson, Texas Practice 4.46 (1995). I take this opportunity to "explicitly acknowledge" just such a position.

In the midst of the Prohibition era, this Court handed down Welchek v. State, a case involving the warrantless stop of a suspect and the improper seizure of alcohol by a sheriff and "a number of other gentlemen." See 93 Tex. Crim. 271, 274, 247 S.W.2d 524, 525 (1922). The Welchek Court refused to apply the exclusionary rule that was being utilized by other state courts and by the United States Supreme Court, and upheld the trial court's decision to not suppress the evidence regardless of the warrantless search and seizure. Id.

In the next legislative session, the Texas Senate proposed bill ("S.B.") 115 as a means to overturn Welchek, in that it specifically excluded illegally obtained evidence.(1) See 39th Leg., Tex. S.J. 109 (1925). Specifically, S.B. 115 was passed, after a floor amendment, as follows: "[n]o evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." The bill subsequently passed the Texas House of Representatives without amendment and was signed by the Governor on March 9, 1925.(2) The 1925 Code of Criminal Procedure codified S.B. 115 as article 727a, which became effective on June 19, 1925.(3) Viewing these events in toto, it is virtually irrefutable that the Texas Legislature enacted 727a, which is materially identical to today's article 38.23, in order to provide Texas citizens with the protections of the Fourth Amendment's exclusionary rule.(4)

Article 38.23 does expand the Fourth Amendment exclusionary rule in that private citizens, not simply government actors, are estopped from illegally obtaining evidence against a defendant. See Johnson v. State, 939 S.W.2d 587-88 (Tex. Crim. App. 1998).(5) But the underlying theory of both the exclusionary rule and article 38.23 is the same: to protect a suspect's liberty interests against the overzealousness of others in obtaining evidence to use against them. Thus, unless someone's privacy or property interests are illegally infringed upon in the obtainment of evidence, the core rationale for providing this prophylactic measure is not met and its use is unwarranted. To expand the breadth of 38.23 to any and every violation of Texas "law" -- beyond those that affect a defendant's privacy or property interests -- is to ignore the basic premise under which the statute was created and would lead to absurd results.

In the present case the illegality at issue was the possession of cocaine.(6) The "law" in question does not shield a person from having his liberty interests infringed, nor were appellant's privacy or property interests implicated by this criminal possession. Thus, it fails the criterion for finding a 38.23 violation. Were we to hold otherwise, trial courts would be besieged by defendants claiming any and every type of "legal" violation as the predicate to suppress any evidence obtained. No matter how isolated and immaterial the alleged "illegality," defendants could argue that it led to the obtainment of evidence and this would lead to absurd results. Judge Keller's concurrence in this case alludes to just such an absurdity, where it refers to an accomplice's eyewitness testimony. See Chavez, ante at ___ (Keller, J., concurring). An accomplice's eyewitness's testimony could arguably be suppressed due to the fact that he "obtained" this evidence through an illegal act -- helping the defendant commit the crime at issue. Undoubtedly, he broke the "law" in committing the criminal act and thus, under appellant's argument, he violated 38.23. However, this "illegality" in no way implicated the defendant's privacy rights, nor casts any doubt on the veracity of the accomplice's testimony. Suppressing this confession would be an unintended and absurd result, and such a result cannot be allowed. See Boykin v. State, 818 S.W.2d 782, 785-86 & 786 n. 4 (Tex. Crim. App. 1991) (a statute must be interpreted in accordance with the plain meaning of its words unless the words are ambiguous or the plain meaning leads to absurd results).

A bright-line rule is needed, therefore, and we should draw it at the point where a defendant's personal or property rights are illegally violated in the obtainment of evidence against him. See Fuller v. State, 829 S.W.2d 191, 202 (Tex. Crim. App. 1992) (when the predecessor of article 38.23(a) was first enacted, this Court rejected similar contentions regarding general "laws", holding that "[t]he right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not available to anyone else.") (citations omitted). Such a ruling upholds the rationale and spirit of the statute, while still proscribing its potential abuse.

For the foregoing reasons, I concur only in the judgment of the Court.

Price, J.

Date Delivered: January 12, 2000


1. Another bill, S.B. 174 made it a criminal violation to search a defendant without a warrant. Thus, together with S.B. 115, any defendant finding himself in a situation like Welchek would be able to have the evidence suppressed.

2. Tex. H.R.J. 795 (1925) and 1925 Tex. Gen. Laws, ch. 49, at 186-87.

3. See Robert O. Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 Texas L. Rev. 191 (1981).

4. This was the only exclusionary doctrine available to Texas defendants until the United States Supreme Court decided Mapp v. Ohio, which required state courts to apply the exclusionary rule under the Fourteenth Amendment. See 81 S.Ct. 1684, 367 U.S. 643, 6 L.Ed.2d 1081 (1961).

5. Our holding in Johnson is consistent with the purposes underlying the enactment of 38.23 -- that is, to preclude private actors as well as government officials from illegally obtaining evidence against a defendant.

6. The majority opinion determines that the "illegality" in this case is the violation of the RANTF agreement. I disagree. The RANTF agreement is not a "provision of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America," thus it is not encompassed by Art. 38.23. I believe that the illegality is the possession of cocaine. I assume without deciding that an officer acting outside of his jurisdiction is to be considered a private citizen, not a law enforcement official. Thus, purchasing and possessing cocaine would be a violation of Texas law, specifically Tex. Health & Safety Code Ann. 481.112 (c) (Vernon 1994).