           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

              Meyers, J., filed a dissenting opinion.

                                DISSENTING OPINION

       The majority states the issue as: “whether article 38.23 of the Code of Criminal

Procedure bars the admissibility of a confession if the interrogating officer fabricates

documentary evidence in violation of Texas Penal Code section 37.09 and uses it to

persuade a suspect to confess.” Article 38.23 prohibits the admission of evidence

obtained by an officer in violation of Texas law. C ODE C RIM. P ROC. A NN. art. 38.23. The

law the majority and the court of appeals have deemed violated reads, “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.” P ENAL C ODE A NN. § 37.09.

       The problem with the majority’s conclusion is that in order for article 38.23 to bar

the admission of Appellant’s confession, Detective Roberts would have to be guilty of

violating section 37.09; and, I do not believe he could be found guilty of violating that

statute.

       Although Detective Roberts was not convinced of Appellant’s involvement in the

shooting and knew that there were no legible prints lifted off the magazine found at the

scene, the detective presented a “Forensic Latent Print Report” to Appellant upon

entering the interrogation room. The detective testified that, in preparation for the

interview, he created the document, which he knew to be false. The document stated:

       Examination of Item 1 revealed the Two Latent Prints lifted from the
       Firearm Magazine belong to those of Ronald Wilson, a Black Male with the
       date of birth 11-13-84 . . . .

But the detective’s educated guess as to the source of the prints turned out lucky:

Appellant admitted shooting the victim. The detective’s report was not wrong because

even though it stated that there were identifiable latent prints lifted when in fact there

were no legible prints, Appellant did shoot the victim. And that fact makes it highly

likely that the unidentifiable prints on the magazine were indeed his.

       Because Detective Roberts could not be convicted of Tampering with or
Fabricating Physical Evidence, I respectfully dissent. The trial court did not abuse its

discretion in denying the motion to suppress, and therefore, I would reverse the court of

appeals and affirm the trial court’s judgment.

                                                                Meyers, J.




Filed: March 3, 2010

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