NOS. 761/1123-02






Hervey, J., delivered the opinion of the Court in which Keller, PJ., Womack, Keasler, and Holcomb, JJ., joined. Meyers, J., filed a dissenting opinion in which Price, Johnson, and Cochran, JJ., joined.


In this case we granted discretionary review to decide "whether the Court of Appeals erred in affirming the trial court's decision to deny appellant's motion to suppress his confession." We hold that the Court of Appeals did not so err.

A jury convicted appellant of possessing between 4 and 200 grams of cocaine and of possessing between 5 and 50 pounds of marijuana. Appellant made a written confession to possessing these drugs. He filed a pretrial motion to suppress his confession claiming that it was coerced and involuntary under federal constitutional law and under state statutory law. The evidence from the suppression hearing showed that the police seized the drugs from appellant's father's upholstery shop pursuant to a search warrant. Appellant lived at the shop and worked there along with his father and brother. The police arrested appellant, his father and brother. Later that day appellant made the written confession in which he also stated that his "brother and dad had nothing to do with what had been found." Neither the father nor the brother were charged with any offense.

At the suppression hearing, appellant testified that his confession was induced by a promise from the police that his father and brother would not be charged if he confessed. The detective who obtained appellant's confession denied making any promises to appellant. On cross-examination, this detective also testified that he told appellant that he needed to know who the drugs belonged to and from that appellant "could have gathered" that his father and brother would not be charged if appellant "accepted responsibility."

Q. While you were talking to [appellant], isn't it true that you told him if you-if he admitted possessing all this stuff, that you wouldn't file on his brother and his father?

A. Not in those words.

Q. You let him write out the statement, didn't you?

A. He wrote the statement out.

[APPELLANT]: Judge, can I approach?


Q. What does the last sentence that he wrote say in that statement, sir?

A. My brother and dad had nothing to do with what had been found.

Q. Did you ask him to put that in there?

A. I said I want that-in so many words I told him that I needed to know whose it was and who is responsible for it.

Q. And you left him with the impression that if he accepted responsibility, you weren't going to file on his brother and his father, right?

A. He could have gathered that.


The trial court denied the suppression motion based on a finding "that the statement was voluntarily given without coercion, and would be admissible in this matter." This finding seems to have resolved only appellant's federal constitutional claim.(1) The Court of Appeals addressed only a state law claim under Article 38.21 of the Texas Code of Criminal Procedure, and it decided that appellant's confession was admissible because appellant "failed to show that [the detective's] promise to him was sufficient to cause him to falsely confess to possession of the contraband." See Martinez v. State, slip op. at 3-9, 9, Nos. 02-00-00339-CR and 02-00-00340-CR (Tex.App.-Fort Worth, delivered April 18, 2002) (nonpublished).

Article 38.21 provides that an accused's statement may be used against him "if it appears that the same was freely and voluntarily made without compulsion or persuasion." This Court has decided that for a promise to render a confession invalid under Article 38.21, the promise must be positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully. See Henderson v. State, 962 S.W.2d 544, 564 (Tex.Cr.App. 1997), cert. denied, 119 S.Ct. 437 (1998); Fisher v. State, 379 S.W.2d 900, 902 (Tex.Cr.App. 1964) (decided under former law set out in Article 726); Searcy v. State, 13 S.W. 782 (Tex.Ct.App. 1890).

Though not clear, it appears that the Court of Appeals may have upheld the admissibility of appellant's confession because appellant did not show that his confession was false. See Martinez, slip op. at 8-9 (while appellant "testified that what he perceived as a promise by [the detective] induced him to admit his guilt," appellant "did not testify that his admission was false"). This would have been error because the truth or falsity of a confession is irrelevant to a voluntariness determination not only under federal constitutional law but also under state law. Under state law the determination is whether the officially sanctioned positive promise "would be likely to influence the defendant to speak untruthfully" and not whether, the defendant in fact spoke untruthfully. See Fisher, 379 S.W.2d at 902; cf. Terrazas, 4 S.W.3d at 723-24 (whether a confession is true or false is irrelevant to a federal constitutional voluntariness determination because it is the methods used to extract an involuntary confession that offends constitutional principles).

In any event, the evidence supports the implied finding that no positive promise was ever made by the detective to appellant. The detective testified that he made no promises to appellant and that:

I said I want that-in so many words I told him that I needed to know whose it was and who is responsible for it.


The judgment of the Court of Appeals is affirmed.

Hervey, J.

Delivered: February 18, 2004


1. The record supports a finding that appellant's confession was "given without coercion" and that the methods used to obtain the confession did not offend federal constitutional principles. See Dickerson v. United States, 120 S.Ct. 2326, 2330-31 (2000) (setting out brief historical account of federal constitutional law governing the admission of confessions); Colorado v. Connelly, 107 S.Ct. 515, 520 n.1 (1986) (setting out various situations where confessions held to have been involuntary as a matter of federal constitutional law); State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex.Cr.App. 1999) (federal constitutional voluntariness determination focuses on the methods used by state actors to obtain a confession with the voluntariness test being whether the confession is the product "of an essentially free and unconstrained choice by its maker").