IN THE COURT OF CRIMINAL APPEALS
C O N C U R R I N G O P I N I O N
ON DIRECT APPEAL
FROM HARRIS COUNTY
Holland, J., delivered a concurring opinion in which Meyers, J., Price, J., and Johnson, J., joined.
C O N C U R R I N G O P I N I O N
I join the majority's opinion on all points of error except point of error five. With respect to point of error five, I would hold that Article 38.23 of the Texas Code of Criminal Procedure is a permissible enforcement mechanism for violations of Article 36 of the Vienna Convention on Consular Relations. Under the facts of this particular case, however, I would conclude that appellant failed to demonstrate a causal connection between the Vienna Convention violation and the oral statements taken by the officers.
In point of error five, appellant claims that the trial court should have suppressed his oral statements under Article 38.23 because he was not given proper warnings as required by Article 36 of the Vienna Convention. Appellant specifically asserts that he was not notified of his right to contact the Mexican Consulate before making a statement to the police. At the hearing on the motion to suppress, he presented evidence that, had a consul talked to him, the consul would have advised appellant to refuse to talk to the police until an attorney was arranged for him.
The majority concludes that Article 38.23 is not the proper enforcement mechanism for treaties. In support of this conclusion, the majority states that because "'laws' is placed in a series with 'Constitution'" in Article 38.23, while "laws" is placed in a series with "Constitution" and "treaties" in the Supremacy Clause of the United States Constitution, we should infer that the Texas Legislature, by omission, did not mean to include treaties within the scope of Article 38.23. This interpretation means that a "treaty" should not be considered a "law" for purposes of Article 38.23. I disagree with this interpretation. I would instead conclude that Article 38.23 is a permissible enforcement mechanism for violations of the Vienna Convention.(1)
The pertinent section of Article 36 of the Vienna Convention states,
1. With a view to facilitating the exercise of consular functions
relating to nationals of the sending State:
* * *
(b) if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State if,
within its consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained in any
manner. Any communication addressed to the consular post by the
person arrested, in prison, custody or detention shall also be
forwarded by the said authorities without delay. The said authorities
shall inform the person concerned without delay of his rights under
Vienna Convention on Consular Relations, April 24, 1963, art. 36(1)(b), 21 U.S.T. 77, 100-101, 595 U.N.T.S. 261, 292 (ratified by the United States on Nov. 24, 1969). This Court has recognized that this section of the Vienna Convention "grants a foreign national who has been arrested, imprisoned or taken into custody a right to contact his consulate and requires the arresting government authorities to inform the individual of this right 'without delay.'" Maldonado v. State, 998 S.W.2d 239, 246-47 (Tex. Crim. App. 1999). But we have never expressly held whether Article 38.23's exclusionary rule applies to treaties. I understand Article 38.23 to include treaties within the phrase "laws of the United States of America."
The statute's use of the word "laws" is, on its face, ambiguous. Even the Supremacy Clause uses the term "law" in two different contexts. The Supremacy Clause of the United States Constitution states that "[t]his Constitution, and the Laws of the United States . . . ; and all Treaties made, or which shall be made, . . . shall be the supreme Law of the Land . . .." United States Constitution, Article VI, Clause 2 (emphasis added). "Law" in one context means statutes or rules enacted by Congress. In the other context, "law" incorporates treaties. The majority cannot know which meaning of "law" the Texas Legislature intended to incorporate into Article 38.23. Thus, there are two different interpretations of "law," and the statute is ambiguous.
Considering that there are two generally acceptable interpretations of what the term "laws" incorporates, it is helpful to look at how other courts have interpreted what a treaty is. In Edye v. Robertson, 112 U.S. 580 (1884), the United States Supreme Court discussed the role treaties hold in our system of laws.
[A] treaty may also contain provisions which confer certain rights
upon the citizens of or subjects of one of the nations residing in the
territorial limits of the other, which partake of the nature of municipal
law, and which are capable of enforcement as between private parties
in the courts of the country. . . . The constitution of the United States
places such provisions as these in the same category as other laws of
congress by its declarations that 'this constitution and the laws made
in pursuance thereof, and all treaties made or which shall be made
under authority of the United States, shall be the supreme law of the
land.' A treaty, then, is a law of the land as an act of congress is,
whenever its provisions prescribe a rule by which the rights of the
private citizen or subject may be determined. And when such rights
are of a nature to be enforced in a court of justice, that court resorts
to the treaty for a rule of decision for the case before it as it would to
Id. at 598-99 (emphasis added).(2) The Supreme Court has also expressly held that treaties are "to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." Valentine v. United States ex rel. Neidecker 299 U.S. 5, 10 (1936). Therefore, according to the Supreme Court, a treaty is to be treated as a statute in our courts if that treaty determines rights of private citizens. More critical to the disposition of the instant case, given that we are interpreting a Texas statute, is that Texas courts have also recognized treaties are equal to statutes. In Quintero v. State, 761 S.W.2d 438, 440 (Tex. App.--El Paso 1988, pet. ref'd), cert. denied, 491 U.S. 826 (1989), the El Paso Court of Appeals acknowledged that, according to the Supreme Court, "extradition treaties are equivalent to statutes." Id. (emphasis added) (citing Valentine, 299 U.S. at 10.).(3)
Further support for the proposition that a treaty is the equivalent of a law can be found in the Restatement (Third) of Foreign Relations Law. "Treaties made under the authority of the United States, like the Constitution itself and the laws of the United States, are expressly declared to be 'supreme Law of the Land' by Article VI of the Constitution. . . . As law of the United States, international law is also the law of every State, is a basis for the exercise of judicial authority by State courts, and is cognizable in cases in State courts, in the same way as other United States law." Restatement (Third) of Foreign Relations Law 111 cmt. d (1986). This Court recognized this principle in Maldonado when we stated, "Under the Supremacy Clause of the United States Constitution, states must adhere to United States treaties and give them the same force and effect as any other federal law. Thus, a violation of this treaty would arguably fall under the language in Article 38.23(a) if the issue is raised by the evidence." Maldonado, 998 S.W.2d at 247 (citations omitted).
Article 36 of the Vienna Convention confers a personal right on private citizens of this State. The Supreme Court has not yet directly addressed this issue, but it did discuss application of the Vienna Convention in Breard v. Greene, 523 U.S. 371 (1998). The Supreme Court found that the defendant in that case was procedurally barred from raising the Vienna Convention claim because he had failed to first raise the claim in a state court. See id. at 373. The Supreme Court stated that the Vienna Convention "arguably confers on an individual the right to consular assistance following arrest." Id. at 374. While not directly answering the question of individual rights, the Supreme Court did conclude that it was improper for a foreign country to bring suit under the Vienna Convention, thereby inferring that Article 36 of the Vienna Convention confers personal rights, as opposed to sovereign rights. See id. at 375.
This Court and the Third Court of Appeals have defined consular assistance as a personal right. In Maldonado, we recognized that a foreign national has a right to consult his consulate, and the arresting officers must inform that national of this right without delay. Maldonado, 998 S.W.2d at 246. Using similar language, the Third Court of Appeals also labeled the Vienna Convention's instruction a "right." See Cardona v. State, 973 S.W.2d 412, 417 (Tex. App.--Austin 1998). Additionally, by looking at the plain language of Article 36 (b) of the Vienna Convention, it is clear that the provision was meant to be a personal right for foreign nationals. The treaty states that "[t]he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph." Vienna Convention on Consular Relations, art. 36(1)(b) (emphasis added).(4) Likewise, it is apparent from the delegates' debate on Article 36 of the Vienna Convention that the provision concerned the individual rights of a detained foreign national. See generally 1 United Nations Conference on Consular Relations: Official Records, U.N. Doc. A/Conf. 25/6, U.N. Sales. No. 63.X.2 (1963); United States v. Li, __ F.3d __, 2000 WL 217891, slip op. at *19 (1st Cir. Feb. 29, 2000) (Torruella, C.J., concurring in part and dissenting in part) (quoting delegates from several countries who specifically refer to the "separate individual rights of nationals"). Finally, international courts have determined that Article 36 of the Vienna Convention "endows a detained foreign national with individual rights that are the counterpart to the host State's correlative duties." Op. Inter-Am. Ct. H.R., OC-16/99, 84 (Oct. 1, 1999); see also Case Concerning the Vienna Convention on Consular Relations (Paraguay v. U.S.), 1998 I.C.J. 248 (referring to a Paraguayan national's "rights" under the provisions of Article 36 of the Vienna Convention).
Since Article 36 of the Vienna Convention confers personal rights on foreign nationals, the treaty is to be considered a "law," equal to a statute and enforceable in courts of this State. There are compelling policy reasons for reaching this conclusion. Secretary of the State Madeline Albright explained in a speech at Howard University,
[W]e are a part of an international system in which it is important to
respect the various rules and conventions and laws that have been
created to make the system work . . .. And among those rules . . .
there are ways that foreign nationals are treated in another country,
how diplomats are treated, how we deal with issues when they have
committed a crime . . ..
So there are rules, and the reason there are rules, and we have been
the creator of many of them, is because we benefit from them. As I
said, there are a lot of Americans who travel abroad who sometimes
get into trouble and who need to have the availability of our consular
officers to be able to visit them if they have them jailed unjustly, or
even if they've been jailed justly, or if they find themselves in some
kind of a difficult situation that they, in other words, are able to call
Secretary of State Madeline K. Albright, Remarks and Q&A at Howard University, April 14, 1998, Washington, D.C. (released by the Office of the Spokesman, U.S. Department of State). If the United States does not provide a mechanism for enforcing the Vienna Convention, why should other signatories enforce the provisions of the treaty? The treaty is an important protection to Texans traveling in other nations. This State should extend the same protections to foreign nationals in Texas that we expect to be extended to our citizens when they are abroad.
In the past, the United States Department of State has been involved in individual cases where the Vienna Convention has not been scrupulously followed in this country. As an example, Virginia capital defendant Angel Breard was not informed of his right to contact his consulate from Paraguay. He was subsequently sentenced to death for the rape and capital murder of Ruth Dickie. See Breard, 523 U.S. at 372. The State Department and the Department of Justice worked together to determine whether Breard had a fair trial, free of prejudice. While noting the Supreme Court and Governor of Virginia were not required to stay the execution, the two groups jointly wrote the Governor, requesting that he stay the execution. Breard was nevertheless executed. See James P. Rubin, Daily Press Briefing #46, page 1-2, April 15, 1998 (released by the U.S. Department of State).
In a daily press briefing, the State Department commented,
Secretary Madeline Albright wrote to [the Governor of Virginia]
asking that the Governor stay the execution of Mr. Breard for murder.
The Governor decided to allow the execution to take place as
scheduled last night. In our federal system, that was his decision.
There is no doubt in our minds that Mr. Breard was guilty of the
crimes for which he was sentenced; however, he was not told that
Paraguay's consulate could be notified of his arrest by the Vienna
Convention. That concerned the Department of State and his case
was given careful attention here.
* * *
This case does show, however, how important it is for federal,
state and local law enforcement officials in the United States to be
aware of the U.S. obligation to notify foreign nationals of their right
to consular access. This is of great importance to foreigners here and
it is of particular concern to the Secretary for Americans overseas.
We should, in the United States, see to it that foreigners here
receive that same treatment that we expect and demand for Americans
overseas. That is why the State Department will continue to work
with governors and mayors and law enforcement officials across this
country to insure that consular notification obligations are understood
and honored. In that regard, Secretary Albright has sent to all the 50
states a copy of this document, "Consular Notification and Access,"
which is a lengthy booklet, explaining what the requirements are
because, in many cases, this doesn't happen.
See id. The booklet referred to by James Rubin in the preceding passage states that "[t]he
instructions in this booklet should be followed by all federal, state, and local government officials,
whether law enforcement, judicial, or other, . . .." Consular Notification and Access, Part Two:
Detailed Instructions on the Treatment of Foreign Nationals (visited January 11, 2000)
<http://state.gov/www/global/legal_affairs/consularnotification/part2.html>. The booklet also states
that the Vienna Convention is "binding on federal, state and local government officials to the extent
that they pertain to matters within such officials' competence." See id. Under the terms of the
Vienna Convention, "the foreign national must be told of the right of consular notification and
access" in all cases. See id. (emphasis in original). Furthermore, the United States Department of
Justice requires that "[i]n every case in which a foreign national is arrested, the arresting officer shall
inform the foreign national that his consul will be advised of his arrest unless he does not wish such
notification to be given." 28 C.F.R. 50.5(1).(5)
The Vienna Convention itself clearly states that it is to be enforced in accordance with the laws of Texas and of the United States. Paragraph 2 of Article 36 of the Vienna Convention states,
2. The rights referred to in paragraph 1 of this Article shall be
exercised in conformity with the laws and regulations of the receiving
State, subject to the proviso, however, that the said laws and
regulations must enable full effect to be given to the purposes for
which the rights accorded under the Article are intended.
Vienna Convention on Consular Relations, art. 36(2) (emphasis added). Indeed, the Supreme Court relied in part on this provision in reaching its decision in Breard v. Greene. See Breard, 523 U.S. at 373. Therefore, the manner in which the Vienna Convention is enforced in other countries is largely irrelevant in this State, as the United States and Texas are called upon to apply the treaty in conformity with our own laws. "A foreign national arrested and prosecuted in the United States is entitled to the protections of our Constitution and the procedures of our criminal justice system. A foreign national whose right to counsel or against self-incrimination is violated in this country is entitled to suppression of evidence even if such a violation has no remedy in another country." SeeLombera-Camorlinga, slip op. at *7 (Boochever, J., dissenting).(6)
More importantly to the instant case, however, a foreign national arrested and prosecuted in Texas is entitled to the protections and procedures of our state criminal justice system. In Texas, our exclusionary rule is articulated in Article 38.23, and it is this statute that the Court is called upon to interpret today. See Tex. Code Crim. Proc. Art. 38.23. In Texas, our statutory exclusionary rule is unique. Regardless of what the federal circuit courts say concerning application of the federal exclusionary rule, this Court is bound in this case to determine whether a treaty is a "law" for purposes of our Texas statute - Article 38.23. Based on the plain language of the Supremacy Clause, the Supreme Court's definition and characterization of "treaty," the portrayal of the character of treaties in other sources, strong policy considerations, and the plain language of Article 36 of the Vienna Convention, I would conclude that a treaty is a "law" and included within the scope of Article 38.23.(7)
Even when the terms of the Vienna Convention are violated, the Supreme Court has stated that it is "extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial." Breard, 523 U.S. at 375. In other words, the evidence should establish a causal connection between a violation of the Vienna Convention and the evidence at issue in the suppression hearing. The evidence must be shown to have been obtained by the authorities as a result of the violation of one's rights under the Vienna Convention. See Tex. Code Crim. Proc. Art 38.23.(8)
Because this is an issue of first impression, we look for guidance in another area of Texas jurisprudence which has the similar requirement of a causal relationship for exclusion of a confession. This Court requires such a relationship when examining violations of Article 15.17 of the Texas Code of Criminal Procedure. See Cantu v. State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992); Ex parte Stansbery, 702 S.W.2d 643, 647 (Tex. Crim. App. 1986). Article 15.17 requires that "the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested." Tex. Code Crim. Proc. Art. 15.17 (a). This Court has consistently held that violations of Art. 15.17 "[do] not automatically invalidate a confession" because the statute relates to the duties of the arresting officer and magistrate. Williams v. State, 692 S.W.2d 671, 675 (Tex. Crim. App. 1984). "Absent a showing of a causal connection between an accused's confession and the failure to take the accused promptly before a magistrate, the validity of the confession is not affected." Id. at 675-76; see also Cantu, 842 S.W.2d at 680 (holding that the defendant failed to show a causal connection between the State's failure to take him before a magistrate and the statements he gave to the police, and thus, the statements were properly admitted at trial); Ex parte Stansbery, 702 S.W.2d at 647 (concluding that because the record did not reflect a causal connection between the failure to take defendant before a magistrate and his confession, defendant's contention that his oral statement was inadmissible was overruled). Like Article 15.17, Article 36 of the Vienna Convention relates to procedures and duties of police officers following the arrest of a suspect - in this instance, a suspect who is a foreign national. A defendant's statements to police should not be suppressed when it has not been shown that there is a causal connection between those oral statements and the failure to be warned of rights under Article 36 of the Vienna Convention.
In conclusion, I would hold that to demonstrate a violation of Article 38.23, appellant must first show that he was deprived of a right under Article 36 of the Vienna Convention. Next, appellant must demonstrate that deprivation of the right resulted in officers obtaining the evidence at issue. Furthermore, if evidence is admitted in violation of Article 38.23, I would hold that a failure to exclude that evidence is harmful only if it affects "substantial rights" of the appellant. See Tex. Code Crim. Proc. art. 38.23(a); Tex. R. App. P. 44.2(b) (stating the standard for reversal due to non-constitutional errors).
In the instant case, the State admits that the terms of the Vienna Convention were violated. Appellant is a citizen of Mexico, the arresting officer knew that appellant was a Mexican citizen, and appellant was never informed of his right to talk to a Mexican consulate. But, while appellant demonstrates how the Mexican consulate would have helped him, he does not state that he would have availed himself of this help had he been informed of that right.(9) Therefore, appellant fails to show a causal connection between the officers' failure to inform him of his Vienna Convention rights and the oral statements he made. Appellant's statements were properly admitted at trial.(10)
In conclusion, I would hold that Article 38.23 is a permissible enforcement mechanism for
alleged violations of Article 36 of the Vienna Convention on Consular Relations. In this case,
however, appellant fails to show that the violation caused him to render oral statements excludable
under Article 38.23. Because the majority finds Article 38.23 wholly inapplicable to the instant issue,
I concur only in the result reached by the majority on point of error five.(11)
DATE: April 12, 2000
1. In its Reply Brief, the State concedes that a treaty is a "law" within the scope of Article 38.23. It states that "[a] treaty is a law of the United States to be given the same force and effect as any other law. Hanson v. Town of Flower Mound, 679 F.2d 497 (5th Cir. 1982)."
2. The Supreme Court expressly differentiates between a treaty granting rights to citizens from a treaty that does not do so. See Edye v. Robertson, 112 U.S. 580, 598-99 (1884). In the former, rights of individuals are to be enforced in courts just as they would be under a statute. See id. at 599. In the latter, enforcement is reliant on the "interest and the honor of the governments which are parties to it," and judicial courts cannot give redress. Id. at 598.
The majority argues that "[i]f a contract between sovereigns is broken, the party ordinarily expected to seek redress is the sovereign, not an individual subject." Ante., slip op. at 23 (citing United States v. Li, __ F.3d __, 2000 WL 217891, slip op. at *5 (1st Cir., en banc, Feb. 29, 2000) (quoting Edye, 112 U.S. at 598.)). Both the majority and the First Federal Circuit Court of Appeals seemingly overlook the rest of the Supreme Court's holding in Edye, which is set out above. They do not acknowledge the fact that some treaties confer individual rights on citizens and those particular treaties are enforceable in "courts of justice." Considering that Article 36 of the Vienna Convention confers personal rights on foreign nationals, see infra pp. 5-7, the majority's and the First Circuit's arguments necessarily fail.
3. If, as the majority asserts, a treaty is not a "law" for purposes of Article 38.23, it is difficult, if not impossible, to reconcile that holding with case law from the Supreme Court expressly concluding that a treaty is the equivalent of a statute. A treaty cannot be the equivalent of a statute, yet not a "law" under the scope of Article 38.23.
4. While the preamble of the Vienna Convention states that "the purpose of such privileges and immunities [delineated by the Vienna Convention] is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States," it is disingenuous to use this language as evidence that the treaty does not convey individual rights. The more specific language of Article 36 of the Vienna Convention expressly refers to a foreign national's "rights under [the] sub-paragraph." Vienna Convention on Consular Relations, art. 36(1)(b).
5. In contrast to the compelling comments made by Secretary of State Madeline Albright and the policies implemented by the State Department and the Department of Justice, the State Department takes a markedly different stance when faced with adversarial litigation. In the Inter-American Court of Human Rights, as a party to the suit, the State Department argued that "there is nothing to suggest that failure to give consular notification invalidates the convictions of a state criminal justice system." Op. Inter-Am. Ct. H.R., OC-16/99, 26 (Oct. 1, 1999). But according to the Supreme Court, this "position" taken by the State Department is unworthy of deference. The Supreme Court has stated that courts should "declin[e] to give deference to an agency counsel's interpretation of a statute where the agency itself has articulated no position on the question." Bowen v. Georgetown University Hospital, 488 U.S. 204, 212 (1988).
During recent litigation, the State Department discussed the Vienna Convention in a letter
written solely in conjunction with litigation pending in the First Federal Circuit Court of Appeals. See
United States v. Li, __ F.3d __, 2000 WL 217891, slip op. at *8-9 (1st Cir., en banc, Feb. 29, 2000).
In this letter, the State Department offered the "position that suppression of evidence is an
inappropriate remedy for a violation of this provision of the Vienna Convention." United States v.
Lombera-Camorlinga, __ F.3d __, __, 2000 WL 245374, slip op. at *5 (9th Cir., en banc, March 6,
2000). In Lombera-Camorlinga, the State Department's "position" was granted only minimal
deference by the Ninth Circuit. See Lombera-Camorlinga, slip op. at *5 (stating that "it is true that
courts tend to give less weight to an executive branch position adopted in the course of litigation, as
is the case here, than to an interpretation made in diplomatic relations with other countries.").
Moreover, the dissent in Lombera-Camorlinga placed this State Department letter in the correct light
by noting that "[t]he majority goes beyond the treaty language to rely heavily on a letter from the
State Department . . .. As the majority acknowledges, however, that letter is entitled to little
deference, as it was prepared in the course of litigation. We should defer even less to the post-hoc
rationalization of an agency charged with enforcement of a treaty provision when its enforcement has
been so notably lax." Id. at *8 (Boochever, J., dissenting).
The dissent in Lombera-Camorlinga further explained that
[a]dministrative agency constructions of governing statutes, or in this
case a treaty, performed outside the adversary system are worthy of
deference. However, agency positions developed in response to a
lawsuit are not of the same character: they are specifically tailored to
help obtain a favorable outcome in a pending controversy in which the
agency is involved. Although we must certainly consider the
persuasive force of the agency's argument, it is just that. The
arguments advanced by an agency in litigation ought to rise or fall on
their own weight.
Id. at *14 (Thomas, J., dissenting). It is in this light that this Court should consider the State Department's "position." In previous suits and in the letter cited in Lombera-Camorlinga and Li, the State Department apparently did advocate that suppression of evidence is an inappropriate remedy for violations of the Vienna Convention. But in arguing the importance of this "position," the majority fails to acknowledge that the State Department, as an executive agency of the United States government, was a party to the litigation in the cases cited by the majority. Considering the State Department's "position" has consistently been asserted in the course of adversarial litigation, this Court should give primary consideration to both the important policy reasons for enforcing the Vienna Convention in Texas, as articulated by Secretary of State Madeline Albright, and the actual language contained in the Vienna Convention treaty.
6. See both the majority and two dissenting opinions in Lombera-Camorlinga for a discussion on whether the federal exclusionary rule should apply to Vienna Convention violations. __ F.3d __, 2000 WL 245374 (9th Cir., en banc, March 6, 2000). Application of the federal exclusionary rule is not a question before this Court today.
7. The majority's opinion suggests that under my interpretation of the Vienna Convention and Article 38.23, Texas would be the "only jurisdiction in the entire world that enforces the treaty through the use of an exclusionary rule sanction." Ante., slip op. at 24. My research shows that at least one other jurisdiction has already enforced the Vienna Convention through exclusionary rule jurisprudence. See State of Delaware v. Reyes, 740 A.2d 7, 14 (Del. 1999) (granting the defendant's motion to suppress oral statements on the basis that he was denied his consular notification rights); see also State of Ohio v. Ramirez, 1999 WL 1313670, slip op. at *7 (Ohio Ct. App. 11 Dist., Dec.23, 1999) (unpublished opinion) (noting, in dicta, that "if the Vienna Convention had been complied with in this case, the errors detailed in appellant's first point of error would have been avoided," and reiterating that "it is the imperative duty of the judicial tribunals of Ohio to take cognizance of the rights of persons arising under a treaty to the same extent as if they arose under a statute of the state itself.").
8. Article 38.23 (a) states,
(a) No evidence obtained by an officer or other person in violation of
any provision of the Constitution of law of the State of Texas, or of
the Constitution of laws of the United States of America, shall be
deemed admitted in evidence against the accused on the trial of any
Tex. Code Crim. Proc. Art. 38.23 (a) (emphasis added).
9. The record does show that appellant was informed of his right to consult with an attorney, and he waived this right.
10. Finding the lack of a causal connection in this case in no way lessens the importance of the terms of Article 36 of the Vienna Convention. Violations of the Vienna Convention could result in the exclusion of evidence under Art. 38.23. We urge all law officials to comply with the terms of the Vienna Convention and give foreign nationals the proper consulate notification.
11. The majority's reliance on Lombera-Camorlinga and Li implies that the federal exclusionary rule would not apply to Vienna Convention violations. See Ante., slip. op. at *25-26. Later in the opinion, however, the majority states that its holding "does not preclude the application of a federal exclusionary rule." Id. at *29. These two comments are contradictory. It is unclear to me exactly how, or even if, the Vienna Convention will be enforced in Texas under the conclusions of the majority opinion.
And while I do understand the wisdom in allowing the Supreme Court to "finally and definitely answer" the issues surrounding this treaty, this Court is simply called upon today to interpret the language of Article 38.23. An opinion issued by the Supreme Court concerning the application of the federal exclusionary rule to Vienna Convention violations has no bearing on the manner in which this Court interprets a state statute, namely Article 38.23.