               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                          NO. PD-0307-09


                                  RONALD WILSON, Appellant

                                                  v.

                                     THE STATE OF TEXAS

                  ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                       FROM THE FOURTH COURT OF APPEALS
                                  BEXAR COUNTY

          HERVEY , J., filed a dissenting opinion in which KELLER , P.J., and KEASLER , J.,
joined.

                                    DISSENTING OPINION

          I respectfully dissent. Concerning the court-made federal exclusionary rule that it adopted

in Weeks v. United States,1 the United States Supreme Court has stated:

          Suppression of evidence, however, has always been our last resort, not our first
          impulse. The [federal] exclusionary rule generates substantial social costs, which
          sometimes include setting the guilty free and the dangerous at large. We have
          therefore been cautio[us] against expanding it, and have repeatedly emphasized that
          the rule’s costly toll upon truth-seeking and law enforcement objectives presents a

          1

          232 U.S. 383 (1914).
                                                                                           Wilson--2

       high obstacle for those urging [its] application. We have rejected [i]ndiscriminate
       application of the rule, and have held it to be applicable only where its remedial
       objectives [of deterring police conduct that actually violates a defendant’s personal
       rights] are thought most efficaciously served,–that is, where its deterrence benefits
       outweigh its substantial social costs.

Hudson v. Michigan, 547 U.S. 586, 591, 596 (2006) (internal quotes and citation to authorities
omitted).

       The federal exclusionary rule “is an entirely American legal creation” which “is still

universally rejected by other countries.” See Sanchez-Llamas v. Oregon, 548 U.S. 331, 343-44

(2006) (internal quotes omitted). The federal exclusionary rule is generally applied to deter police

violations of the defendant’s Fourth and Fifth Amendment rights and to deter police violations of

statutes that implicate these Fourth and Fifth Amendment rights. See Sanchez-Llamas 548 U.S. at

348-49.

       Appellant’s confession would not be excluded under these federal exclusionary rule

principles. According to the majority opinion, the “underlying purpose of both the federal

exclusionary rule and article 38.23 is the same: to protect a suspect’s privacy, property, and liberty

rights against overzealous law enforcement” and the “primary purpose of article 38.23(a) is to deter

unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for

prosecution.” See Maj. Op. at 10-11 (emphasis supplied). Despite this, the majority opinion also

states that our state statutory exclusionary rule in Article 38.23(a) “prohibits the use of a much

broader category of ‘illegally obtained’ evidence” than does the federal exclusionary rule and that

“Article 38.23 prohibits the admission of evidence obtained in violation of Texas penal laws related

to gathering, creating, or destroying evidence.” See Maj. Op. at 9.2 The majority opinion decides


       2

       It is, however, debatable whether our state statutory exclusionary rule in Article 38.23(a) was
                                                                                            Wilson--3

that appellant’s confession must be suppressed under Article 38.23(a) apparently because appellant

would not have confessed but for Roberts’ violation of Section 37.09, TEX . PEN . CODE, which,

according to the majority opinion, is meant to prohibit “police officers from using fabricated

documents to affect the course of their investigations.” See Maj. Op. at 10-11.3

       I would decide that appellant’s confession should not be suppressed under Article 38.23(a)

because any violation of Section 37.09 by Roberts did not violate any of appellant’s personal rights.

See Maj. Op. at 11 (“primary purpose of article 38.23(a) is to deter unlawful actions which violate

the rights of criminal suspects in the acquisition of evidence for prosecution”) (emphasis supplied).

In other words, appellant has no standing to complain that Roberts may have violated Section 37.09

in obtaining appellant’s voluntary confession.

       In Fuller v. State,4 this Court explained the law of standing as it relates to Article 38.23(a):



originally intended to exclude a broader category of “illegally obtained evidence” than its federal
counterpart. See Chapin v. State, 296 S.W. 1095, 1099 (Tex.Cr.App. 1927); Craft v. State, 295 S.W.
617, 618 (Tex.Cr.App. 1927); Chavez v. State, 9 S.W.3d 817, 822 (Tex.Cr.App. 2000) (Price, J.,
concurring in the judgment) (legislative history of Article 38.23(a) makes it “virtually irrefutable”
that Article 38.23(a) was enacted “in order to provide Texas citizens with the protections of the
Fourth Amendment’s exclusionary rule”); State v. Johnson, 939 S.W.2d 586, 588-93 (Tex.Cr.App.
1996) (McCormick, P.J., dissenting) (in enacting our state statutory exclusionary rule, the Legislature
intended to make our state exclusionary rule jurisprudence consistent with federal exclusionary rule
jurisprudence as recognized in this Court’s decisions in Chapin and Craft which were decided very
soon after the Legislature enacted our state statutory exclusionary rule).
       3

        It should be noted that appellant’s confession would not be excluded under Article 38.23(a)
had Roberts not fabricated a forensic lab report but merely told appellant that Roberts had a forensic
lab report stating that appellant’s fingerprints were found on the magazine clip. This seems to be
a very fine distinction for determining the admissibility of appellant’s confession and whether a
murderer might go free. See Hudson, 547 U.S. at 591 (discussing “substantial social costs” of
federal exclusionary rule).
       4

       829 S.W.2d 191, 201-02(Tex.Cr.App. 1992).
                                                                                              Wilson--4

       In Texas, the law of standing has been developed mainly in the courts of civil
       jurisdiction. There, [i]t is a fundamental rule of law that only the person whose
       primary legal right has been breached may seek redress for an injury. Consequently,
       [s]tanding consists of some interest peculiar to the person individually and not as a
       member of the general public. For a person to maintain a court action, [therefore],
       he must show that he has a justiciable interest in the subject matter in litigation,
       either in his own right or in a representative capacity. One who has not suffered an
       invasion of a legal right does not have standing to bring suit.

       Kindred rules have also appeared in the criminal context, usually as a result of
       search-and-seizure litigation. Thus, when the predecessor of article 38.23(a) was first
       enacted in 1925, contentions identical to those presented here were urged soon after.
       And, in a series of early opinions, this Court rejected them all, holding that [t]he right
       to complain because of an illegal search and seizure is a privilege personal to the
       wronged or injured party, and is not available to anyone else. Our position in this
       respect has remained generally unchanged over the years.

See Fuller, 829 S.W.2d at 201-02 (internal quotes and citation to authorities omitted).

       In Fuller, the trial court admitted into evidence an audio recording that the defendant made

and sent to a fellow prisoner (Brenda Hall). See id. Another prisoner took this audio recording from

Brenda Hall and gave it to the police. See id. The defendant claimed at his capital murder trial that

the audio recording should have been suppressed under Article 38.23(a) because it was illegally

taken from Brenda Hall. See Fuller, 829 S.W.2d at 201-02. This Court applied the foregoing

principles to decide that the defendant had no standing “to challenge such illegality in the context

of a criminal prosecution.” See Fuller, 829 S.W.2d at 202. This Court stated in Fuller:

       The justiciable injury suffered as a direct and immediate result of the illegality of
       which Appellant here complains was not his own. The illegality, if any, was theft or
       conversion. The victim, if any, was Brenda Hall. Brenda Hall may have a
       cognizable cause of action for conversion against someone. The State of Texas may
       have a basis to prosecute someone for the criminal offense committed against Brenda
       Hall. But no one may sue, nor may the State of Texas prosecute, anyone for an injury
       to the Appellant arising from the illegality about which he now complains, since he
       suffered no injury actionable under our law as a result of it. No actionable wrong
       was visited upon Appellant as a result of the seizure. For this reason we hold that he
       is also without standing to challenge such illegality in the context of a criminal
                                                                                             Wilson--5

          prosecution, and we reaffirm our early cases to such effect.

See id.

          In Chavez, a Rural Area Narcotics Task Force undercover police officer purchased cocaine

from the defendant outside the undercover officer’s geographical boundary set out in an Interlocal

Assistance Agreement between various counties for the purpose of investigating illegal drug activity

as authorized by a particular statutory provision in the Local Government Code. See Chavez, 9

S.W.3d at 818-19. The five-judge majority opinion in Chavez apparently understood the defendant

to claim that the cocaine should have been suppressed under Article 38.23(a) because it was seized

by the undercover officer in violation of the Interlocal Assistance Agreement and the statutory

provision in the Local Government Code that authorized this agreement. See Chavez, 9 S.W.3d at

818-19 (McCormick, P.J., joined by Mansfield, Keller, Womack and Keasler, JJ.). The five-judge

majority opinion applied Fuller to decide that the defendant had no standing to complain about the

undercover officer’s violation of this agreement because this violation did not violate any of the

defendant’s personal rights. See id.

          Judge Price concurred only in the judgment in Chavez in a separate opinion, which Judge

Meyers also joined. See Chavez, 9 S.W.3d at 821-23 (Price, J., concurring in the judgment, joined

by Meyers, J.). Judge Price’s concurring opinion agreed with the majority opinion that a defendant

has no standing to complain that evidence was illegally obtained for Article 38.23(a) state

exclusionary rule purposes unless the “defendant’s personal or property rights are illegally violated

in the obtainment of the evidence against him.” See Chavez, 9 S.W.3d at 823 (Price, J., concurring

in the judgment). Judge Price also wrote:

          But the underlying theory of both the [federal] exclusionary rule and article 38.23 is
                                                                                            Wilson--6

       the same: to protect a suspect’s liberty interests against the overzealousness of others
       in obtaining evidence to use against them. Thus, unless someone’s privacy or
       property interests are illegally infringed upon in the obtainment of evidence, the core
       rationale for providing this prophylactic measure [in Article 38.23(a)] is not met and
       its use is unwarranted. To expand the breadth of 38.23 to any and every violation of
       Texas “law”–beyond those that affect a defendant’s privacy or property interests–is
       to ignore the basic premise under which the statute was created and would lead to
       absurd results.

See Chavez, 9 S.W.3d at 822-23 (Price, J., concurring in the judgment).

       Judge Price’s concurring opinion, however, would have decided that the illegality at issue

in Chavez was the undercover officer’s possession of the cocaine that he purchased from the

defendant and not the undercover officer acting outside the geographical boundary set out in the

Interlocal Assistance Agreement when he obtained this cocaine from the defendant. See id. at 823.

Judge Price’s concurring opinion still would have decided that for Article 38.23(a) state exclusionary

rule purposes the defendant lacked standing to complain that the undercover officer illegally obtained

(or possessed) the cocaine because “[t]he ‘law’ in question [that the undercover officer violated]

does not shield a person from having his liberty interests infringed, nor were [the defendant’s]

privacy or property interests implicated by this criminal possession.” See Chavez, 9 S.W.3d at 823

(Price, J., concurring in the judgment).

       It is, therefore, clear that seven judges in Chavez decided that a defendant has no standing

to complain that evidence was illegally obtained for Article 38.23(a) state exclusionary rule purposes

unless the “defendant’s personal or property rights are illegally violated in the obtainment of the

evidence against him.” See Chavez, 9 S.W.3d at 823 (Price, J., concurring in the judgment, joined

by Meyers, J.) and at 819 (defendant has no standing to complain that evidence was illegally

obtained when no invasion of the defendant’s rights occurred when it was obtained) (McCormick,
                                                                                              Wilson--7

P.J., joined by Mansfield, Keller, Womack and Keasler, JJ.). It is inconsistent with this Court’s

decisions in Chavez and Fuller for the majority opinion to state that “Article 38.23 prohibits the

admission of evidence obtained in violation of Texas penal laws related to gathering, creating, or

destroying evidence.” See Maj. Op. at 9 (emphasis supplied). Consistent with this Court’s

decisions in Chavez and Fuller, this statement should read, “Article 38.23 prohibits the admission

of evidence obtained in violation of Texas penal laws when these violations of Texas penal laws

violate the defendant’s personal or property rights. Under Chavez and Fuller, a defendant would

have no standing to complain that evidence was obtained in violation of a law “related to gathering,

creating, or destroying evidence” if that violation did not violate the defendant’s personal rights. The

majority opinion effects a major change in Texas law and overrules sub silentio significant portions

of Chavez and Fuller.5


        5

        In Rakas v. Illinois, the Supreme Court recognized that “as a general proposition, the issue
of standing involves two inquiries: first, whether the proponent of a particular legal right has alleged
‘injury in fact,’ and, second whether the proponent is asserting his own legal rights and interests
rather than basing his claim for relief upon the rights of third parties.” See Rakas v. Illinois, 439 U.S.
128, 139-40 (1978). Our decisions in Fuller and Chavez can be read as deciding that the defendants
in those cases had no standing to challenge the complained-of action resulting in the acquisition of
the evidence used against them because they were basing their claims “for relief upon the rights of
third parties.”
        In Rakas, the Supreme Court rejected the “theoretically separate, but invariably intertwined
concept of standing” in the Fourth Amendment context. See Rakas, 429 U.S. at 139-40. The
Supreme Court stated:

        We can think of no decided cases of this Court that would have come out differently
        had we concluded, as we do now, that the type of standing requirement discussed in
        [citation omitted] and reaffirmed today is more properly subsumed under substantive
        Fourth Amendment doctrine. Rigorous application of the principle that rights
        secured by this Amendment are personal, in place of a notion of “standing,” will
        produce no additional situations in which evidence must be excluded. The inquiry
        under either approach is the same. But we think the better analysis forthrightly
        focuses on the extent of a particular defendant’s rights under the Fourth Amendment,
                                                                                               Wilson--8

       Under Fuller and Chavez, the issue in this case is whether any violation of Section 37.09 by

Roberts violated any of appellant’s personal rights. Like the “criminal possession” law in Chavez,

Section 37.09 “does not shield a person from having his liberty interests infringed, nor were

appellant’s privacy or property interests implicated” by any violation of Section 37.09 by Roberts.

See Chavez, 9 S.W.3d at 823 (Price, J., concurring in the judgment). Even if, as the majority opinion

states, Section 37.09 is intended to prohibit “police officers from using fabricated documents to

affect the course of their investigations,” it is clear that “[n]o actionable wrong was visited upon”6

appellant as a result of any violation of Section 37.09 by Roberts and that appellant, like any other

member of the general public, has no right to bring suit to enforce Section 37.09 by commencing or

compelling the district attorney to commence a criminal prosecution for its violation. See Town of

Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 754, 768 (2005) (private citizen complainant

lacked judicially cognizable property interest in police enforcement of restraining order against



       rather than on any theoretically separate, but invariably intertwined concept of
       standing. The Court in [citation omitted] also may have been aware that there was
       a certain artificiality in analyzing this question in terms of standing because in at least
       three separate places in its opinion the Court placed that term within quotation marks.

       It should be emphasized that nothing we say here casts the least doubt on cases which
       recognize that, as a general proposition, the issue of standing involves two inquiries:
       first, whether the proponent of a particular legal right has alleged “injury in fact,”
       and, second, whether, the proponent is asserting his own legal rights and interests
       rather than basing his claim for relief upon the rights of third parties. But this
       Court’s long history of insistence that Fourth Amendment rights are personal in
       nature has already answered many of these traditional standing inquiries, and we
       think that definition of those rights is more properly placed within the purview of
       substantive Fourth Amendment law than within that of standing.

See Rakas, 439 U.S. at 139-40 (citation to authorities and footnotes omitted).
       6

       See Fuller, 829 S.W.2d at 202.
                                                                                            Wilson--9

complainant’s husband who murdered their three children in violation of the restraining order);

Leeke v. Timmerman, 454 U.S. 83, 85-86 (1981) (private citizen lacks judicially cognizable interest

in the prosecution or nonprosecution of another); Fuller, 829 S.W.2d at 201 (standing “consists of

some interest peculiar to the person individually and not as a member of the general public” and one

“who has not suffered an invasion of a legal right does not have standing to bring suit”). That is

primarily a call for the district attorney to make. It would, therefore, appear that, in asserting that

his confession should be suppressed because of Roberts’ alleged violation of Section 37.09, appellant

is really asserting the rights of the district attorney to enforce this criminal statute rather than

asserting a personal right of his own.7

       Consistent with this Court’s decisions in Fuller and Chavez, I would decide that appellant’s

voluntary confession should not be suppressed under Article 38.23(a) because appellant has no

standing to complain about any violation of Section 37.09 by Roberts. Excluding the relevant

incriminating evidence of appellant’s voluntary confession is too high a price to pay for this alleged

statutory violation that did not violate any of appellant’s personal rights. See Hudson, 547 U.S. at

591, 596 (costs of excluding relevant incriminating evidence are considerable). Deciding that

appellant has no standing to complain about Roberts’ alleged violation of Section 37.09 would have

the additional benefits of making it unnecessary for this Court to put Roberts in the same league as



       7

        Under Chavez, it would also seem that, even if appellant had standing to complain about any
violation of Section 37.09 by Roberts, his remedy would be to compel a criminal prosecution of
Roberts for this violation and not exclusion of his voluntary confession. See Chavez, 9 S.W.3d at
819-20 (“And, even if someone like appellant had standing to complain about a breach of the
Agreement by one of its parties, the contractual remedy would be specific performance of the
Agreement and not exclusion of evidence obtained by police officers acting outside the geographical
boundaries set out in the Agreement.”).
                                                                                          Wilson--10

police officers who use throw-down guns and manufacture evidence to frame innocent people and

of declaring Roberts guilty of a third-degree felony offense that Roberts had no opportunity to defend

himself against at the suppression hearing8 and that, as far as this record shows, Roberts has never

been formally accused of or prosecuted for violating.

       With these comments, I join Judge Keasler’s dissenting opinion.



                                                              Hervey, J.



Filed: March 3, 2010
Publish




       8

       According to the majority opinion, appellant raised Roberts’ alleged violation of Section
37.09 for the first time on appeal. See Maj. Op. at 6. Roberts, therefore, was not put on notice that
he would have to defend himself against this charge at the suppression hearing. This would be a
good reason for also deciding that appellant procedurally defaulted any claim that Roberts violated
Section 37.09.
