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                                             OPINION

                                         No. 04-07-00737-CR

                                          Ronald WILSON,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006-CR-2564
                            Honorable Sharon MacRae, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Alma L. López, Chief Justice
                  Catherine Stone, Justice
                  Sandee Bryan Marion, Justice

Delivered and Filed: December 17, 2008

REVERSED AND REMANDED

           Defendant, Ronald Wilson, was charged with capital murder. After the denial of his motion

to suppress, defendant pled no contest and was sentenced to twenty-eight years’ confinement. In his

only issue on appeal, defendant argues the trial court erred in denying his motion to suppress because

the police violated the law to obtain his confession. We agree that the police officer who

interrogated defendant violated Penal Code section 37.09 when he fabricated a forensic report and
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used it to obtain defendant’s confession. Accordingly, we reverse the trial court’s judgment and

remand for a new trial.

                                              BACKGROUND

        On January 5, 2006, defendant was arrested because of outstanding misdemeanor warrants.

While at the police station, detective Raymond Roberts interviewed defendant about his involvement

in the January 1, 2006 murder of Amos Gutierrez.1 The interview was recorded and a video of the

interrogation is a part of the record on appeal. At the suppression hearing, the detective admitted he

fabricated a forensic lab report prior to the interrogation. The detective’s false report purported to

show defendant’s fingerprints on the magazine of the firearm used in the murder. In fact, no legible

prints were found on the magazine. Initially, defendant denied any involvement in the murder.

However, after the detective showed defendant the fabricated forensic lab report and discussed with

defendant other incriminating evidence against him, defendant confessed to the murder, but claimed

it was an accident. Following his confession, defendant was indicted for capital murder. He filed

a motion to suppress his confession claiming it was obtained in violation of the law and, therefore,

was inadmissible under Texas Code of Criminal Procedure article 38.23. After the motion was

denied, defendant, pursuant to a plea agreement, pled no contest and was sentenced to twenty-eight

years’ confinement. This appeal ensued from the denial of defendant’s motion to suppress.

                                        STANDARD OF REVIEW

        We review the trial court’s ruling on a motion to suppress for an abuse of discretion.

Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). A trial court “abuses its discretion



          1
            … Defendant was connected to the murder investigation because on the night of the murder he called 911
stating he had discovered the victim’s body.

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if it refuses to suppress evidence that was obtained in violation of state statutory law and is,

therefore, inadmissible under Article 38.23.” Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim.

App. 1993) (en banc).

                TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 38.23

        At the suppression hearing, defendant argued the detective’s fabrication of the document used

to obtain his confession was a violation of the law and, therefore, pursuant to Texas Code of

Criminal Procedure article 38.23, the confession should have been suppressed. Under Article 38.23,

“[n]o evidence obtained by an officer . . . in violation of . . . [the] laws of the State of Texas . . . shall

be admitted in evidence against the accused on the trial of any criminal case.” CODE CRIM . PROC.

ANN . art. 38.23 (Vernon 2005). It is “settled law that the burden of proof is initially on the defendant

to raise the [article 38.23] exclusionary issue by producing evidence of a statutory violation, and that

this burden then shifts to the State to prove compliance.” Pham v. State, 175 S.W.3d 767, 772 (Tex.

Crim. App. 2005). However, before evidence is rendered inadmissible, a causal connection must

be shown between the violation of the law and the evidence obtained. Id. at 773. After the

defendant produces evidence of a causal connection, the State may either disprove the causal

connection or make an attenuation-of-taint argument. Id.

        If arguing attenuation-of-taint, the State must establish the taint of the violation was so far

removed from obtaining the evidence that the causal chain is broken. Id. When determining whether

the taint of a violation of the law was attenuated, the court considers the following four factors:

(1) whether Miranda warnings were given; (2) the temporal proximity of the violation and the

confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the

official misconduct. Johnson v. State, 871 S.W.2d 744, 751 (Tex. Crim. App. 1994).


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                     SECTION 37.09 FABRICATING PHYSICAL EVIDENCE

         On appeal, defendant argues his confession should have been suppressed because the

detective obtained the evidence in violation of Penal Code section 37.09, which states: “A person

commits an offense if, knowing that an investigation or official proceeding is pending or in progress,

he . . . makes, presents, or uses any record, document, or thing with knowledge of its falsity and with

intent to affect the course or outcome of the investigation or official proceeding.” TEX . PENAL CODE

ANN . § 37.09 (Vernon 2003).

         The facts presented at the motion to suppress hearing and the plain language of section 37.09

lead to the conclusion that the detective violated section 37.09. See State v. Daugherty, 931 S.W.2d

268, 270 (Tex. Crim. App. 1996) (“In divining legislative intent, we look first to the language of the

statute. When the meaning is plain, we look no further.”). At the suppression hearing, the detective

testified he knew there were no legible fingerprints on the magazine of the gun found near the

victim’s body. The detective admitted he used an old report as a template to create the false

document on his computer, which said defendant’s prints were on the magazine. The detective

admitted to knowingly creating the false document with the intention that defendant would consider

the document as genuine and confess to shooting the victim. Thus, there is no dispute that the

detective knowingly made the fabricated forensic lab report and presented it to defendant intending

to affect the course of the investigation. Therefore, under the plain language of section 37.09, we

conclude the officer violated the laws of the State of Texas.2


         2
           … The State argues that the detective’s fabrication of the report was not a violation of state law, but instead
a “valid interrogation technique.” The State cites several interrogation and investigation manuals that encourage law
enforcement to use deception when interrogating a suspect. One of the manuals the State relies on, however, contains
the following footnote: “The investigator, however, should not prepare false incriminating documents that appear to have
been generated through an official source (for example, a crime lab, the FBI). The reason for this is a concern that such
falsified documents may find their way into the court system . . . .” Fred E. Inbau et. al., Criminal Interrogation and

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        The State asserts that even if the detective violated the law, the trial court correctly refused

to suppress the confession because defendant did not establish a causal connection between the

violation and his confessing to the murder. The State also argues “[defendant] cannot say with

specific certainty that his sole reason to confess to the murder was due to the fabricated police

report.” We do not agree with the State’s argument because a defendant is only required to

“produce[] evidence that there is a causal connection.” Pham, 175 S.W.3d at 773 (emphasis added).

At the suppression hearing, the detective conceded that the fabricated report was a cause of the

defendant’s ultimate confession. When asked if the confession “had everything to do with this

report,” the detective replied: “[i]t had a little something to do with it.” The detective testified that

the purpose of creating the report was to convince defendant to confess. Finally, even the trial court

acknowledged that the detective’s fabrication was a “turning point” in the interrogation. We

therefore conclude defendant met his burden of establishing that the police officer violated a law of

this State and this violation was a cause of his confession to the shooting. See Roquemore v. State,

60 S.W.3d 862, 871 n.13 (Tex. Crim. App. 2001) (en banc) (“[W]hen the purpose of violating the

law (the detour) is to recover the stolen property, we fail to see how there can be anything other than

a causal connection between the violation of law and the evidence concerning that very stolen

property. Stated another way, the evidence concerning the recovery of the stolen property was

obtained as a consequence of the officers first unlawfully taking the appellant to the stolen

property.”).

        Finally, the State argues that even if there is a causal connection, there is too great of an

attenuation to establish the fabricated report caused the confession. We do not believe the facts



Confessions 217 n.2 (4th ed. 2001).

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support an attenuation-of-the-taint argument. As discussed above, the court considers four factors

when deciding if the taint of the violation was attenuated. On appeal the State focuses only on the

third factor, intervening circumstances.3 The State argues there were intervening circumstances

between the violation of the law and the confession that attenuated the taint of the section 37.09

violation. Specifically, the State points to the other incriminating evidence the detective told

defendant he had against him.4 The detective initially showed defendant the report at 10:13 p.m.

At 10:25:28, the detective mentioned the fingerprint report again and said to defendant: “I can’t get

over the fact that your fingerprints, you see the report, these are experts man, there ain’t no mistakes

on it.” Immediately after that statement, at 10:25:35, defendant admitted he shot the victim and

claimed it was an accident. Based on this record, we conclude the State did not meet its burden of

showing that the taint of the section 37.09 violation of fabricating the fingerprint report was so far

removed from obtaining the confession that the causal chain was in fact broken. See Pham, 175

S.W.3d at 773.




         3
           … Courts have recognized the following as intervening circumstances: “appearance before a magistrate,
termination of the illegal custody, consultation with counsel, voluntary statement not made in response to police
interrogation, consultation with parents, and the procurement of a valid arrest warrant before the confession.” Weems
v. State, 167 S.W .3d 350, 360 (Tex. App.— Houston [14th Dist.] 2005, pet. ref’d) (footnotes omitted).

         4
          … During the interrogation, in addition to showing defendant the fabricated report, the detective told defendant
the police collected the following incriminating evidence against him: (1) defendant’s grandmother did not confirm
defendant’s alibi for the night of the murder; (2) several witnesses gave sworn statements that defendant tried to sell a
gun without a clip after the murder; (3) several witnesses reported that defendant tried to buy drugs with bloody money;
and (4) several witnesses saw defendant running away from the crime scene and they picked defendant out of a photo
lineup.

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                                                CONCLUSION

         We sustain defendant’s issue on appeal and reverse the trial court’s judgment and remand

for further proceedings.5

                                                               Sandee Bryan Marion, Justice



PUBLISH




         5
          … Because our decision regarding the section 37.09 violation is dispositive, we do not address the remaining
issues of whether the police officer also violated Penal Code section 37.10 or whether defendant’s confession was
voluntary.

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