Johnson, J., filed a concurring opinion.
I join Judge Holland's concurring opinion as to point of error number five, and otherwise concur in the judgment affirming the conviction. I write separately to emphasize why I believe that the exclusionary rule of Tex. Code Crim. Proc. art. 38.23 was not triggered in the instant case.
Art. 38.23 provides in relevant part that
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. In any case where the legal evidence raises an issue
hereunder, the jury shall be instructed that if it believes, or has a
reasonable doubt, that the evidence was obtained in violation of the
provisions of this Article, then and in such event, the jury shall
disregard any such evidence so obtained.
(Emphasis added.) That is, under the plain language of the statute, the exclusion of evidence is mandated only when there is a causal connection between the legal or constitutional violation and the obtaining of the evidence.(1)
In the instant case, there was testimony at the suppression hearing that upon the two occasions on which appellant made statements to the police, he was given his statutorily required warnings, and that he indicated that he was waiving his rights and would make a statement. See ante, at ___ (slip op. at 14-17). On this basis, there is no evidence that had appellant been told of his rights under the Vienna Convention, he would have acted any differently.(2) As such, it cannot be said that there is any causal connection between the statements appellant made to the police and the failure to apprize appellant of his rights under the Vienna Convention. Therefore, art. 38.23 neither requires that appellant's statements be suppressed, nor that the jury be instructed on that matter.
With these observations, I join Judge Holland's concurring opinion as to point of error number five, and otherwiseconcur in the judgment affirming the conviction.
Date Delivered: April 12, 2000
1. See, e.g., Lane v. State, 951 S.W.2d 242 (Tex. App.--Austin 1997, no pet.) (trial court did not err in admitting results of breath test where defendant orally received warnings concerning breath test, but did not receive same warnings in writing, in violation of Transportation Code; there was no evidence that he did not understand warnings or that failure to receive information in writing had any impact on his decision to take breath test); Jessup v. State, 935 S.W.2d 508 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd) (trial court did not err in admitting testimony concerning defendant's refusal to take breath test where written warnings were given to defendant after his refusal; record showed that defendant was given both oral and written warnings and that he understood these warnings, defendant failed to establish any causal connection between his refusal and fact that he was not given written warnings before he refused breath test, and when he did sign written warnings, he reaffirmed his earlier decision); Stockton v. State, 756 S.W.2d 873, 874 (Tex. App.--Austin 1988, no pet.) (although police officer enrolled in high school in violation of Education Code, defendant did not indicate that her belief that police officer was high school student induced her to sell methamphetamine to the officer; therefore, nothing in record indicated that incriminating evidence was obtained as a result of alleged violation of Education Code).
2. At the hearing pursuant to the motion to suppress his statements, appellant disputed that he had voluntarily and intelligently waived his rights. The trial court ruled the evidence admissible. At this hearing, there was nothing proffered concerning appellant's rights under the Vienna Convention.