                                 MEMORANDUM OPINION
                            No. 04-09-00204-CR & No. 04-09-00205-CR

                                      John David MARTINEZ,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                       From the County Court at Law, Val Verde County, Texas
                                    Trial Court No. 07-570-CR
                           Honorable Sergio J. Gonzalez, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: November 23, 2011

REVERSED AND REMANDED

           After the trial court denied John David Martinez’s motion to suppress, he pled guilty to

the offenses of driving while intoxicated and possession of marijuana. On appeal, this court

affirmed, holding the trial court did not err in denying Martinez’s motion to suppress. Martinez

v. State, 318 S.W.3d 24, 29 (Tex. App.—San Antonio 2009), reversed, Nos. PD-1238-10 & PD-

1239-10, 2011 WL 2555712 (Tex. Crim. App. June 29, 2011). On discretionary review, the

Court of Criminal Appeals held the investigatory detention of Martinez was not supported by
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reasonable suspicion. Martinez, 2011 WL 2555712, at *4. The court reversed our judgments

and remanded the causes to this court for further proceedings consistent with its opinion. Id.

       Because there was no reasonable suspicion to justify the original stop, the trial court

should have granted Martinez’s motion to suppress and ruled that any evidence resulting from

the stop is inadmissible at trial. See Martinez, 2011 WL 255712 at *4; TEX. CODE CRIM. PROC.

ANN. art. 38.23 (West 2005). To decide if the error requires reversal, we must identify the

“fruits” of the illegal detention and search and determine whether the fruits have “somehow been

used” by the State. See Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998).

Martinez sought to suppress the marijuana found on his person after his arrest, his oral and

written statements, evidence of his actions at the time of the stop and thereafter, the results of

any breath test, and evidence of his refusal to take any breath test. The record reflects the

following evidence was obtained after the stop: 1) Martinez performed and failed field sobriety

tests; 2) Martinez provided a breath sample measured by a portable breath test device, which

indicated his alcohol concentration was “0.151”; 3) Martinez refused to submit another breath

sample for the intoxilyzer; and 4) marijuana was found in a white envelope removed from his

person at the police department. This evidence was all included in the arresting officer’s report,

which the State introduced in support of Martinez’s pleas of guilty. The State thus clearly used

the fruits of the unlawful detention in obtaining the judgments of guilt.

       In its brief on original submission to this court, the State argued the evidence was

admissible even if the arresting officer’s actions violated the Fourth Amendment because

Martinez failed to demonstrate the officer engaged in “culpable misconduct or egregious

behavior.” The State contends that absent such showing, the exclusionary rule is not “triggered.”

We interpret the State’s argument to suggest that a “good-faith” exception should apply under



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                                                                    04-09-00204-CR & 04-09-00205-CR


the facts of this case. Texas has a statutory “good-faith” exception to its exclusionary rule. See

TEX. CODE CRIM. PROC. art. 38.23(b) (West 2005). However, that section applies only in cases

involving warrants issued by a neutral magistrate based on probable cause. Id. This case

involves a warrantless search and arrest, conducted in violation of the Fourth Amendment, and

the statutory good-faith exception has no application. See id. The evidence obtained in violation

of Martinez’s rights under the Fourth Amendment to the United States Constitution shall not be

admitted in evidence against him in any criminal trial. See id. art. 38.23(a).

       We reverse the judgments of conviction and remand these causes to the trial court for

further proceedings consistent with this opinion.


                                                      Steven C. Hilbig, Justice



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