State v. Ibarra

MANSFIELD, Judge,

concurring.

For nearly twenty-five years, the law in Texas has been that where the State has alleged a search was conducted after voluntary consent was given, the State, if challenged, must show, by clear and convincing evidence, the consent was voluntarily given. Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Crim.App.1972). Paprskar relies, at least in part, on the Supreme Court’s holding in Bumper v. North Carolina, 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968) which established the clear and convincing evidence standard the State must meet to show voluntary consent to a search was given in order to satisfy federal constitutional requisites. Subsequent to our holding in Paprskar , the Supreme Court lowered the clear and convincing standard to a preponderance of the evidence standard, applicable in determining whether a confession was voluntarily given under the Fourth Amendment. Lego v. Twomey, 404 U.S. 477 , 92 S.Ct. 619 , 30 L.Ed.2d 618 (1972). The preponderance of the evidence standard has been made applicable in determining, for Fourth Amendment purposes, whether voluntary consent was given to a search, in effect, overruling Bumper v. North Carolina. Bourjaily v. United States, 483 U.S. 171, 175-77 , 107 S.Ct. 2775, 2779 , 97 L.Ed.2d 144 (1987); United States v. Matlock, 415 U.S. 164, 177-78 , 94 S.Ct. 988, 996 , 39 L.Ed.2d 242 (1974).

“Of course the States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake.” Lego v. Twomey, 404 U.S. at 489 , 92 S.Ct. at 627 .

*246 I have never been persuaded that the framers of the Texas Constitution intended to provide rights and protections to those accused of criminal offenses beyond those provided by the United States Constitution. As stated—correctly—in Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991), we are not barred by the federal constitution from finding the Texas Constitution provides greater rights to criminal defendants than does its federal counterpart. Yet, with the exception of Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996) (Mansñeld, J., dissenting) (interpreting the double jeopardy clause of the Texas Constitution more broadly than the federal double jeopardy clause with respect to barring retrial after mistrial resulting from reckless/intentional State conduct), the majority of this Court has refrained from doing so despite several opportunities to so hold.

Although I personally agree with the State (and with the dissent) that the preponderance of the evidence standard is the better standard, to adopt it now, after demurring for twenty-five years, would do violence to the principle of stare decisis.

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.

ijs í¡c :J: íjc ‡

When may a precedent be properly overruled? This is a difficult question to answer, but we may be confident in the assumption that a precedent may not properly be overruled simply because a majority of the Court believes it to be error. If the rule were otherwise, then no precedent would be safe and our law could change after every change in Court personnel. The situation would be intolerable if the periodic changes in the composition of the Court were accompanied by changes in its rulings.

Garrett v. State, 851 S.W.2d 853, 862-863 (Tex.Crim.App.1993) (Campbell, J., dissenting).

Stare decisis compels us to overrule precedent only where the reasons for doing so are compelling, i.e., it has become clear that the precedent has become unworkable or has led to injustice. In my opinion, the State has not met its burden of persuasion in this regard. The State’s brief does not allege, much less prove, that our holding in Paprskar has become an unworkable obstacle for law enforcement or that it has led to significant numbers of individuals escaping prosecution. The State does not persuade me that a significantly greater number of successful prosecutions would have occurred had the preponderance of the evidence standard, rather than the clear and convincing evidence standard, been applicable at hearings on motions to suppress evidence where the issue is whether or not consent to a search was voluntarily given. 1

Because I believe the principle of stare decisis requires me to do so, I concur in- the opinion of the Court.

. The Legislature, of course, is free to overrule Paprskar . It may be significant that it has not done so despite having met over ten times since Paprskar was delivered.