Garcia v. State

829 S.W.2d 796, 1992 Tex. Crim. App. LEXIS 60, 1992 WL 55265

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1992
• Docket: 945-90
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BENAVIDES, Judge.

Appellant seeks to set aside his Murder conviction because evidence illegally seized from his person was erroneously admitted against him at trial in violation of article 38.23 of the Code of Criminal Procedure. He claims the El Paso Court of Appeals erred to hold that the federal inevitable discovery doctrine is an exception to the Texas exclusionary rule. See TEX.CRIM. PROC. art. 38.23 (Vernon 1990). The instant cause is one of first impression in this Court.

Appellant and his wife were separated in 1987. Pending conclusion of their divorce action, his wife was awarded temporary custody of their young son. But, during a period of visitation, Appellant took the boy to Florida in defiance of court order. His wife complained to the authorities, and Appellant was soon arrested in Miami and extradited to Houston. After that he lost the right to visit with his son altogether and, on October 8, 1987, was formally arraigned for the felony offense of Interference with Child Custody. The next morning his wife was found dead. The obvious victim of a homicide, she had been beaten, strangled and stabbed.

Soon afterwards, Webster Police Chief Reyes Sonora arrested Appellant at his attorney’s office. The police sought him out there in part because they had difficulty locating his young child for a time after discovering his wife’s body. But Sonora also knew of the pending criminal charges against Appellant and was told of Appellant’s violent nature by the victim’s sister. Evidently, he also believed that Appellant had missed a mandatory court appearance and that a warrant had issued for his arrest in connection with the child custody charges. This information turned out to be false. Appellant was arrested even though no warrant was actually issued for him in connection with the murder of his wife until about nine hours after Sonora arrested him in fact.

Meanwhile two photographs were taken of him by the police, each portraying a bruise on his abdomen. At trial, the State contended that the victim inflicted this injury during a struggle with Appellant, and medical testimony tended to support such conclusion. Appellant challenged admissibility of these pictures, together with the accompanying medical testimony, upon the ground that they were fruits of an illegal arrest. His objections were overruled, and in short order the jury convicted him of Murder. His punishment was assessed by the trial judge at confinement in the penitentiary for forty years.

On appeal appellant renewed his complaint that the pictures were the fruits of an illegal arrest made without “warrant and without probable cause.” Appellant conceded that a proper basis for the seizure would have existed when a warrant was later issued for his arrest, but that it did not exist when the photographs were taken. The Court of Appeals did not decide the question of probable cause at the time of arrest. Rather, it determined that the evidence would inevitably have been discovered anyway, and affirmed the conviction. Garcia v. State, No. 08-89-00242-CR (Tex.App.—El Paso, delivered July 25,1990) (unpublished opinion). We granted review to decide whether the doctrine of inevitable discovery is an exception to the Texas statutory exclusionary rule.¹

For most of this century it has been a bulwark of federal constitutional law, authoritatively imposed by decisional law of the United States Supreme Court, that evidence obtained by the government in violation of rights secured by the Fourth Amendment to the United States Constitution may be excluded on demand of the aggrieved party if offered against him in a criminal proceeding. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Over the years, however, the Supreme Court has constrained this exclusionary principle with a number of exceptions, including the rule that evidence which would inevitably have been discovered by the government absent constitutional violation may be received at trial in spite of such violation. Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984) (inevitable discovery doctrine). See also Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963) (independent source doctrine); United States v. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 3411, 82 L.Ed.2d 677 (1984) (good faith doctrine).

This inevitable discovery doctrine is a species of harmless error rule which holds that constitutional violations in the seizure of evidence are inconsequential for purposes of admissibility, not when the outcome of trial was probably unaffected by the illegality, but rather when the outcome of police investigation was probably unaffected by it. Nix, 467 U.S. at 443 n. 4, 104 S.Ct. at 2509 n. 4. The rule has been applied in Texas only to federal suppression questions under the exclusionary rule articulated by the United States Supreme Court. Thus, to the extent that Texas law provides an independent basis for the exclusion of evidence, the inevitable discovery exception approved by the United States Supreme Court is simply irrelevant.

This is not to say that the federal exclusionary rule is inapplicable in Texas. Clearly, it does apply here just as it does throughout the United States. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). But it need only be implemented by the States insofar as they do not prescribe stricter exclusionary rules themselves.

The people of Texas, acting through their elected representatives, have decided that

[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

Art. 38.23, V.A.C.C.P. This statute, on its face, absolutely requires the exclusion of all evidence seized in violation of the Fourth Amendment, and because the federal inevitable discovery doctrine is not an exception to core prohibitions of the Fourth Amendment, but only an exception to the federal exclusionary rule, the mandate of article 38.23 to exclude any evidence obtained in violation of the United States Constitution does not, even by necessary implication, require a decision about whether questioned evidence would inevitably have been discovered anyway. The Court of Appeals therefore erred to hold otherwise.

Our principal task in construing the statute is to discover its place in the Texas scheme of criminal jurisprudence. Because article 38.23 is an enactment of our legislature, it represents the democratic will of Texans, not merely an evidentiary adjustment made by the courts to remedy violations of the law. As always, in the case of legislation, courts may interpret, but they may not amend. For this reason, while we are at liberty to impose exceptions upon court-made exclusionary rules, we may not create exceptions to statutory exclusionary rules. Unless a statute itself can fairly be read to include exceptions, no exceptions may be imported by judicial fiat.

Article 38.23 does expressly contain an exception for the good faith reliance of law enforcement officers upon warrants issued by neutral magistrates.² On its face, however, it contains no others. The State suggests that other exceptions, especially those imposed by the United States Supreme Court on the federal exclusionary rule, should nevertheless be “found” implicit in the statute. Without question, it is often the case that statutes imply more than they say, especially if read together with other laws on the same subject or in such a way as harmonize the law with constitutional requirements. But courts must take the greatest care not to invent a statute of which the legislature gave the public no notice.

Thus, in a similar context, this Court declined to adopt a judicially created exception announced by the Supreme Court where a parallel state statute existed. Specifically, we held that the federal rule allowing impeachment of criminal defendants with confessions obtained in violation of the Fifth Amendment’s warning rule, Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), was inapplicable to oral statements taken in violation of Article 38.22 of the Texas Code of Criminal Procedure, because our statute did not contemplate an exception for purposes of impeachment. Butler v. State, 493 S.W.2d 190 (Tex.Crim.App.1973). Even when the statute was eventually amended by the legislature to permit impeachment under circumstances similar to those contemplated by the constitutional rule, this Court declined to apply it in the same way because it was drawn more narrowly than the federal rule. Alfaro v. State, 638 S.W.2d 891, 897 (Tex.Crim.App.1982). We reasoned that “[T]o permit testimony as to an oral confession (not within any statutory exception) for impeachment would undermine the legislative determination expressed in Article 38.-22.” Butler, 493 S.W.2d at 198. See also Alfaro, 638 S.W.2d at 898.

Consistent with this approach, two Texas courts of appeals have considered precisely the issue presented in the instant cause. Oliver v. State, 711 S.W.2d 442, 445 (Tex.App.—Fort Worth 1986, pet. ref’d); Dees v. State, 722 S.W.2d 209, 213-14 (Tex.App.—Corpus Christi 1986, pet. ref’d). The Fort Worth Court of Appeals considered a defendant’s challenge to the admission of a knife into evidence when the State failed to introduce the arrest warrant. Oliver, 711 S.W.2d at 443. After determining that an unauthorized warrantless arrest had in fact occurred, the court refused judicially to amend article 38.23 to include the “independent source” and “inevitable discovery” exceptions to the exclusionary rule. The court concluded that exceptions to the exclusionary rule must evolve from a legislative amendment to article 38.23, and “not by our ruling that the evidence is admissible in direct contradiction to the plain wording of the statute.” Id. at 445. Likewise, the Corpus Christi Court held, prior to enactment of Subsection (b) of Article 38.23, that a good faith exception to the exclusionary rule did not apply and, therefore, that evidence seized in the absence of probable cause should have been suppressed.

As jurists, we are obliged to implement the expressed will.of our legislature, not the will it keeps to itself. The suggestion that some motive can reliably be inferred from the failure of a legislature to enact certain laws or to enact laws of a certain kind is not only tenuous, but dangerous, for it supplants orthodox democratic institutions with a judicial oligarchy.

Except under unusual circumstances, therefore, it is best to effectuate the legislative intent evidenced by the plain language of statutes. Camacho v. State, 765 S.W.2d 431, 433 (Tex.Crim.App.1989); see also Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App.1989). Otherwise, courts risk invading the legislature’s province by reading into the law that which is clearly not there. Ex Parte Halsted, 147 Tex.Crim. 453, 458, 182 S.W.2d 479, 482 (1944); see also Miles v. State, 157 Tex.Crim. 188, 190, 247 S.W.2d 898, 899 (1952). Accordingly, established rules of statutory construction generally require that, where an express exception exists in a statute, the statute must apply in all cases not excepted. Ex Parte McIver, 586 S.W.2d 851, 856 (Tex.Crim.App. [Panel Op.] 1979); see also State v. Richards, 157 Tex. 166, 168, 301 S.W.2d 597, 600 (1957). Because we “find” no inevitable discovery exception in article 38.23, we are thus unwilling, as the lower court should have been, to create one by judicial fiat. Certainly, the Legislature has the prerogative to amend Article 38.23 to enact the specific exception to its rule if it chooses. Until that time, however, we must enforce the statute as written, excluding all illegally obtained evidence, with the single exception as set out in the statute.

The judgment of the Court of Appeals is reversed and the cause remanded there for further consideration not inconsistent with this opinion.

McCORMICK, P.J., concurs in the result. WHITE and BAIRD, JJ., dissent.

1 . We have not addressed this issue before. Our closest approach was in a footnote to Garza v. State, 771 S.W.2d 549, 550 n. 1 (Tex.Crim.App.1989) (plurality opinion), a case in which the lower court refused to apply the "attenuation doctrine" to article 38.23. However, the question regarding an exception to the exclusionary rule was not at issue, and we refused to consider the ground of error because the facts were not sufficiently developed at trial. Nevertheless, in our footnote, a plurality of the Court declined to adopt that portion of the lower court’s opinion which held that the attenuation doctrine is inapplicable to the Texas statutory exclusionary rule. In the same footnote, several prior cases were cited in which the “inevitable discovery doctrine" was applied. We note, however, that these prior cases do not discuss article 38.23 at all. See Bell v. State, 724 S.W.2d 780, 793 (Tex.Crim.App.1986), cert. denied 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987); Dickey v. State, 716 S.W.2d 499, 505 (Tex.Crim.App.1986); Wicker v. State, 667 S.W.2d 137, 141 (Tex.Crim.App.1984); Vanderbilt v. State, 629 S.W.2d 709, 723 (Tex.Crim.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982). Some fail even to notice the existence of a statutory exclusionary rule, while others rely solely on federal constitutional law.

2 . In 1987, the statute was amended by the legislature to include its sole exception, which reads as follows:

It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Art. 38.23 (b), V.A.C.C.P. See Act of June 18, 1987, ch. 722, § 1, 1987 Tex.Sess.Law Serv. 2208 (Vernon).