           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD–0159–12



                           GREGG CARL BAIRD, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE TENTH COURT OF APPEALS
                         BRAZOS COUNTY

              M EYERS, J., filed a dissenting opinion.

                                DISSENTING OPINION

       In Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010), this Court decided

that evidence was obtained in violation of the law and, thus, inadmissible under Code of

Criminal Procedure Article 38.23 when an officer used a falsified fingerprint report to

evoke the suspect’s confession. Because I did not believe that the officer in that case

could have been found guilty of tampering with or fabricating physical evidence under

Penal Code Section 37.09, I dissented to the Court’s holding that the confession was
                                                                            Baird dissent–Page 2

inadmissible.1

       In a case of sexual assault of a child, we held that a used condom was inadmissible

because it was taken from the appellant’s truck by his sister, who was the mother of the

victim, and we determined that she took the condom with the intent to deprive the

appellant of his property. Jenschke v. State, 147 S.W.3d (Tex. Crim. App. 2004). I

dissented in that case too because I disagreed that the used condom was the appellant’s

property. In both Wilson and Jenschke, we held that the evidence was inadmissible under

Article 38.23.

       Now, the majority goes beyond simply deciding whether evidence was obtained in

violation of the law and also considers whether the person who gathered the evidence

believed or was aware that she committed a forbidden act. The majority goes to great

lengths to show that the dog sitter in this case was not guilty of criminal trespass or

breach of computer security, even to the point of citing authority, analyzing whether the

dog sitter may have believed she had Appellant’s express or apparent assent, and

concluding that the dog sitter was unaware that she lacked Appellant’s effective consent.2

I do not remember us taking the analysis to this point in previous cases, but I think that if

we had taken this additional step then a lot more evidence would be admitted.

       This is a very fact-specific inquiry, and the majority places importance on the fact


       1
           Apparently this case overrules Wilson.
       2
        Judge Keller’s concurring opinion basically returns a “no bill” on Dawn Killian after
simulating a constructive grand jury inquiry into her culpability.
                                                                            Baird dissent–Page 3

that Appellant said, “Help yourself to anything” and that his stated purpose for asking her

to keep his bedroom door closed was to keep the dog out of the room. This raises a lot of

questions for me. Did Appellant need to inform the dog sitter of each and every reason

that he wanted to keep his bedroom door closed? Did he also need to expressly inform

her that she did not have consent to use his clothing or jewelry? Telling a house guest to

“help yourself to anything” is usually not an invitation to go through personal belongings.

And, using someone’s computer is not like using the television, stereo, microwave,

dishwasher, or refrigerator. It is not just an appliance or entertainment option.3

Computers contain a great deal of personal information such as photos, diaries, legal

documents, tax and financial records, medical records, social security numbers, bank

account and credit card numbers, and other personal communications, documents, files,

letters, reports, and notes.

       The majority also places importance on the fact that Appellant’s computer was not

password-protected, but why would he password-protect a computer in his own bedroom?

If the dog sitter thought that she had permission to use the computer, then why did she

feel the need to clean up what she had done and to delete the music from the recycle bin?

It seems to me that she was trying to hide the fact that she had used the computer because



       3
          At the suppression hearing, the State argued that, “Nowadays in American society, a
computer is just about as common as a telephone or a refrigerator. So to say even though I didn’t
tell her she could get the computer, what this Court is telling you it is absolutely ludicrous to
suggest that I can invite you into my home and somehow you are going to know you can’t get on
my computer but you can get in the refrigerator. You can get on my stereo.”
                                                                              Baird dissent–Page 4

she knew that she did not have his consent to use it. If she was unaware that she lacked

consent, then why did she consult counsel before contacting the police regarding what she

had found on Appellant’s computer?

       I understand the trial court, court of appeals, and majority’s reluctance to suppress

this evidence, given the quantity and nature of the child pornography found on

Appellant’s computer. However, the extreme facts of Appellant’s case should have no

bearing on whether the evidence was obtained in violation of the law and should be

excluded under Article 38.23. Unfortunately, our temerity has resulted in the creation of

an entirely new approach and resolution to these types of suppression hearings. In fact,

our ruling has effectively eliminated a violation of the law in procuring evidence from the

language of Article 38.23.4

       Because I disagree with the majority’s determination that the dog sitter did not

commit a crime because she believed that she had Appellant’s apparent consent to use his

computer, I respectfully dissent. I would conclude that the dog sitter violated the breach

of computer-security law and thus, under Article 38.23, the evidence she obtained should

not have been used.

Filed: May 8, 2013
Publish


       4
         At the suppression hearing, the District Attorney incorrectly stated multiple times that
Appellant had the burden to persuade the court that the witness committed a crime. He also
stated that there was no conclusion that the witness violated the law. The judge agreed and
denied Appellant’s motion without even allowing Appellant’s counsel to make his final
argument.
