# State v. Ibarra

> Court of Criminal Appeals of Texas · September 10, 1997 · 953 S.W.2d 242

URL: https://www.frixlaw.com/law-library/cases/9646192

## Case

- **Full name:** The STATE of Texas, Appellant, v. Gabino Puente IBARRA, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 10, 1997
- **Citations:** 953 S.W.2d 242; 1997 Tex. Crim. App. LEXIS 58; 1997 WL 560904
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Meyers, Mansfield, McCormick, Womack, Keller
- **Cited by:** 237 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646192

## How later opinions describe it (automated extraction)

- holding that Texas Constitution requires voluntariness of consent to search to be proved by clear and convincing evidence, although federal Constitution requires only preponderance of evidence
- rejecting state’s claim that state constitutional standard should be changed from clear and convincing evidence to conform with federal preponderance of evidence standard
- applying Texas' clear and convincing evidence standard

## Opinion text

McCORMICK, Presiding Judge,
dissenting.
I respectfully dissent. The majority easts this case as another Heitman 1 case in which the majority holds, as a matter of state constitutional law, that the prosecution must prove to the trial court the voluntariness of a consent to search by clear and convincing evidence.
Before addressing the particulars of the majority opinion and the issue presented in this case, I set out an overview of the approach I believe this Court should adopt in “interpreting” the Texas Constitution. The federal Bill of Rights contained in the United States Constitution originally was and still is intended to protect our rights set out therein against federal action. 2 The states have *247 their own constitutions that secure essentially the same rights against state action.
That the state and federal constitutions intend to guarantee essentially the same rights should not be open to much debate. Even Heitmcm recognizes this. See Heitman, 815 S.W.2d at 682. Consistent with principles of federalism, the point is and always has been that the federal Bill of Rights would not be applicable to the states. The issue is not really how these constitutional provisions should be interpreted; the issue devolves into one of power. See Bauder v. State, 921 S.W.2d 696, 706-07 (Tex.Cr.App.1996) (McCormick, P.J., dissenting). Are the states free to apply their state law without federal intrusion in areas that traditionally had been reserved solely to the states, or are the states bound by a “Procrustean bed of federal precedents” in these areas? See Mapp v. Ohio, 367 U.S. 643, 679 , 81 S.Ct. 1684, 1705 , 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting).
Shortly after the war between the states, the Fourteenth Amendment was adopted as part of the United States Constitution. The Fourteenth Amendment is a federal guarantee directed to state action and it essentially provides that a state may not deprive a citizen of “life, liberty or property” without “due process of law.” See Malloy v. Hogan, 378 U.S. 1, 13-37 , 25-27 84 S.Ct. 1489, 1496-1509, 1502-04 , 12 L.Ed.2d 653, 663-77, 670 (1964) (Harlan, J., dissenting) (“due process of law” is secured against invasion by the federal government by the Fifth Amendment, and is safeguarded against state action in identical words by the Fourteenth Amendment). The history and especially the timing of the Fourteenth Amendment indicate it originally was intended to protect the rights of black Americans from arbitrary and capricious state action. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 542-44 , 16 S.Ct. 1138, 1140 , 41 L.Ed. 256 (1896), and at 554-57, 16 S.Ct. at 1145 (Harlan, J., dissenting) (object of the Fourteenth Amendment was undoubtedly to enforce the absolute equality of the two races before the law); Strauder v. West Virginia, 100 U.S. 303 , 25 L.Ed. 664 (1880) (Fourteenth Amendment intended to protect an emancipated race and to strike down all legal discrimina-tions against those who belong to it); Casarez v. State, 913 S.W.2d 468 , 484 fn. 9 (Tex.Cr.App.1994) (McCormick, P.J., dissenting) (op. on orig. submission).
Consistent with principles of federalism, the due process clause of the Fourteenth Amendment never was intended to make the first eight amendments to the United States Constitution (the federal Bill of Rights) “as such” applicable to the states. See Palko v. Connecticut, 302 U.S. 319 , 58 S.Ct. 149 , 82 L.Ed. 288 (1937) (what the due process clause of the Fourteenth Amendment requires of the states does not basically depend on what the first eight amendments to the federal constitution requires of the federal government); see also Malloy, 378 U.S. at 13-38, 25-27 , 84 S.Ct. at 1496-1509, 1502-04 , 12 L.Ed.2d at 663-77, 670 (Harlan, J., dissenting) (“due process of law” formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the federal Bill of Rights); Mapp, 367 U.S. at 677-69, 682-83 , 81 S.Ct. at 1704, 1706 (Harlan, J., dissenting) (federal courts review state procedures against the flexible contours of the due process clause of the Fourteenth Amendment and not against the specific substantive commands of the Fourth Amendment). Palko cites several cases which decided the Fourteenth Amendment did not prohibit the states from doing certain things that the United States Constitution prohibited the federal government from doing. See Palko, 302 U.S. at 323-25 , 58 S.Ct. at 151 -52 (e.g., Fourteenth Amendment would not prohibit a state from abolishing the right of an accused against compelled incrimination by “orderly inquiry” because this right is not “of the very essence of a scheme of ordered liberty” and it could be lost and justice still be done).
*248 However, in recent times the federal courts have used the Fourteenth Amendment in more ways than one to greatly expand federal power into areas that traditionally had been reserved solely to the states. 3 The federal courts have used the due process clause of the Fourteenth Amendment to make most of the provisions of the federal Bill of Rights applicable to every state in the country effectively intruding upon areas that traditionally had been left solely to each state to decide under its constitution. See, e.g., Malloy, 378 U.S. at 13-34, 15-17 , 84 S.Ct. at 1496-1507, 1497-99 , 12 L.Ed.2d at 663-74, 664 (Harlan, J., dissenting) (result of such an approach to due process is “compelled uniformity” which is inconsistent with principles of federalism); Mapp, 367 U.S. at 672-85 , 81 S.Ct. at 1701-08 (Harlan, J., dissenting).
The federal courts also have applied the Fourteenth Amendment to areas which it never was originally intended to apply also intruding upon areas that traditionally had been left solely to each state to decide under its state law. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 150-52 , 114 S.Ct. 1419, 1433 , 128 L.Ed.2d 89 (1994) (Kennedy, J., concurring) (much time passed before the Fourteenth Amendment was thought to reach beyond the purpose of prohibiting racial discrimination). This may explain why the federal courts have never attempted to define with precision the words “ ‘due process of law.’ ” See Malloy, 378 U.S. at 21-23 , 84 S.Ct. at 1500-02 , 12 L.Ed.2d at 668 (Harlan, J., dissenting).
And, the federal courts, claiming to interpret the Fourteenth Amendment have, mostly through the use of an oxymoron called “substantive due process,” 4 simply imposed their personal policy preferences upon the whole country in many of these areas taking these matters out of the realm of each state’s political process for its citizens to decide or *249 each state’s judicial process for its courts to decide. See, e.g., Jackson v. Denno, 378 U.S. 368, 426-28 , 84 S.Ct. 1774, 1807 , 12 L.Ed.2d 908 (1964) (Harlan, J., dissenting); 5 see also Gideon v. Wainwright, 372 U.S. 335, 335-46 , 83 S.Ct. 792, 792-97 , 9 L.Ed.2d 799 (1963) (federal constitution requires a state to furnish lawyers to indigent criminals accused of serious crimes against its citizens); but see Scott v. Illinois, 440 U.S. 367, 369-71 , 99 S.Ct. 1158, 1160 , 59 L.Ed.2d 383 (1979) (there is considerable doubt that the Sixth Amendment itself, as originally drafted by the Framers of the Bill of Rights, contemplated any guarantee other than the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense). 6 The federal approach to constitutional interpretation has wreaked havoc in the realm of state criminal law enforcement, is inconsistent with principles of federalism by upsetting the proper balance between state and federal responsibility in the administration of criminal justice, and represents a serious threat to our liberty and freedom. 7 See Malloy, 378 U.S. at 13-17 , 84 S.Ct. at 1496-99 , 12 L.Ed.2d at 663-64 (Harlan, J., dissenting) (reasoning behind the Court’s decision carried “extremely mischievous, if not dangerous, consequences for our federal system in the realm of criminal law enforcement” with the result being “compelled uniformity” and disregard of all relevant differences which may exist between state and federal criminal law enforcement); Mapp, 367 U.S. at 679-81 , 81 S.Ct. at 1705 (Harlan J., dissenting) (preservation of a proper balance between state and federal responsibility in the administration of criminal justice demands patience on the part of those who want the states to conform to their views of how things ought to be).
Because of these federal developments, I have taken the position that the federalization of this State’s criminal law and the vast expansion of federal power into areas that traditionally had been reserved solely to the states preempt any “independent” state constitutional analysis. See Bander, 921 S.W.2d at 706-07 (McCormick, P.J., dissenting). As the foregoing discussion illustrates, Texas is not really “independent” as we are compelled to follow a “Procrustean bed of federal precedents” in these areas. Mapp, 367 U.S. at 679 , 81 S.Ct. at 1705 (Harlan, J., dissenting); compare Bauder, 921 S.W.2d at 700-01 (Clinton, J., concurring), with, Bander, 921 S.W.2d at 706-07 (McCormick, P.J., dissenting). When the majority says this Court will “independently” interpret the Texas Consti *250 tution, they fail to appreciate the significance of the federal developments previously discussed.
Given these federal developments, it is a pointless exercise to “independently” interpret our constitution. Under this Court’s past approaches to state constitutional interpretation, this can only have the effect of further increasing the rights of criminal defendants in addition to the explosion of rights for criminal defendants we saw in the 1950s and 1960s by the federal courts. See Bauder, 921 S.W.2d at 706 . 8 Now is the time to be exercising judicial restraint. See Autran, 887 S.W.2d at 43 (McCormick, P.J., dissenting).
The approach to state constitutional “interpretation” I advocate also is preferable to the majority’s approach because my approach gives police and prosecutors clear notice of the “parameters within which they can legally operate,” and it fairly protects the rights of criminal defendants. See Bauder, 921 S.W.2d at 706 (McCormick, P.J., dissenting). Such an approach also has practical benefits. See id. Under this approach, trial and appellate courts in cases like this would have to apply only one substantive rule with a single burden of proof. Under the majority’s approach, trial and appellate courts have to apply two substantive rules with different burdens of proof with no difference in the final results in the vast majority of cases. This is an inefficient use of valuable resources.
Notwithstanding the foregoing, the issue in this case does not present a constitutional question. The issue in this case presents a preliminary question of admissibility. Arti-ele I, Section 9, of the Texas Constitution, like the Fourth Amendment to the federal constitution, protects us from unreasonable searches and seizures by the government. When we are called upon to interpret our constitution, our duty is to give effect to the intent of the voters who adopted it whether we agree with their policy choices or not. See Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.Cr.App.1993). There is no evidence the voters voted for any burden of proof in Article I, Section 9. That does not mean courts are powerless to fashion a burden of proof upon a particular party as courts traditionally have done in the absence of contrary legislative authority. However, courts do this to carry out the policy expressed in the constitutional provision at issue. Courts do not do this as part of the constitutional provision itself.
Citing what it characterizes as the “seminal Texas case” of Paprskar v. State, the majority claims it has been well-settled in Texas that the prosecution must prove to the trial court the voluntariness of a consent to search by clear and convincing evidence. See Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Cr.App.1972) (prosecution must prove by clear and convincing evidence that consent was freely and voluntarily given). The majority recognizes that Paprskar relied in part on the United States Supreme Court’s decision in Bumper v. North Carolina for this rule. See Bumper v. North Carolina, 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968). 9
The State argues Bumper never set “the burden at clear and convincing evidence and, *251 even if it did, later Supreme Court eases construing the federal constitution clearly set the standard at a preponderance of the evidence.” The majority claims it is unnecessary to decide whether Bumper actually set the standard at clear and convincing evidence because Paprskar also relied extensively on Texas case law decided prior to Bumper for the clear and convincing evidence standard.
While it is true Paprskar also relied on and cited Texas case law which required the prosecution to prove the voluntariness of a consent to search, these cases were silent on the prosecution’s burden of proof before the trial court. See Compton v. State, 148 Tex.Crim. 204 , 186 S.W.2d 74, 76 (1945) (burden of proving consent to search rests upon the prosecution); Scott v. State, 139 Tex.Crim. 210 , 139 S.W.2d 787, 788 (1940) (jury should have been instructed to give defendant the benefit of reasonable doubt on the issue of consent to search); Frazier v. State, 119 Tex.Crim. 217 , 43 S.W.2d 597, 599-600 (1931). The Texas cases upon which Paprs-kar relied do not support the proposition for which they are cited in Paprskar and in this case.
Scott and Frazier also dealt with the prosecution’s burden of proving to the jury the voluntariness of a consent to search and not, as here, the prosecution’s burden of proving to the trial court the voluntariness of a consent to search. See Scott, 139 S.W.2d at 788 (jury should have been instructed to give defendant the benefit of reasonable doubt on issue of consent); Frazier, 43 S.W.2d at 599 (jury instructed to acquit defendant if it had reasonable doubt on whether he consented to search); cf. Compton, 186 S.W.2d at 76 (prosecution presented uncontroverted evidence of defendant’s consent; therefore, trial court was not required to submit the issue to the jury and instruct the jury to give defendant the benefit of reasonable doubt on the issue). Therefore, it should not be considered so well-settled in Texas that the prosecution must prove to the trial court the vol-untariness of a consent to search by clear and convincing evidence. 10
The majority’s approach to the question presented in this case also is apparently based on policy. They decline to follow United States v. Matlock which placed the burden on the prosecution to prove to the trial court the voluntariness of a consent to search by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 177-78 , 94 S.Ct. 988, 996-97 , 39 L.Ed.2d 242 (1974). And, the majority declines to adopt the federal rationale set out in Lego v. Twomey for rejecting the claim that the prosecution should have a higher burden to prove the voluntariness of a confession. See Lego v. Twomey, 404 U.S. 477, 488-89 , 92 S.Ct. 619, 626 , 30 L.Ed.2d 618 (1972) (prosecution must prove the voluntariness of a confession by a preponderance of the evidence).
However, the majority wholly fails to address why the federal rationale set out in Lego should not also be adopted as a matter of state law. In Lego , the Supreme Court declined to escalate the prosecution’s burden to prove the voluntariness of a confession for the following reasons:
“Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution’s burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficient productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or inno *252 cence.” Lego, 404 U.S. at 488-89 , 92 S.Ct. at 626 . (Emphasis Supplied).
The majority does not explain why it is necessary, as a matter of state law, to continue to have “additional barriers to placing truthful and probative evidence” before the jury. See id. The majority does not tell us why imposing a higher burden on the prosecution to prove to the trial court the volun-tariness of a consent to search outweighs “the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.” See id. The majority also does not say how their holding -will result in appreciable deterrence of lawless conduct by police and prosecutors. See id 11 However, this, is what happens when the majority continues to follow an approach to constitutional interpretation that completely exalts the rights of criminal defendants over the rights of law-abiding citizens instead of an approach that balances these often competing interests. See Bauder, 921 S.W.2d at 705 (McCormick, P.J., dissenting).
If this Court must “independently” interpret our constitution, I would adopt the holding of Matlock and the reasoning of Lego. Lego at least attempts to balance the interests of criminal defendants against the interests of society.
In addition, our statutes provide more protection than the federal constitution provides by permitting both judge and jury to pass upon the admissibility of evidence when a claim is made that it was obtained “in violation of the law.” See Article 38.23(a), V.A.C.C.P.; Article 38.22, Section 6, V.A.C.C.P; see also Lego, 404 U.S. at 489-90 , 92 S.Ct. at 626-27 (federal constitution does not require that both judge and jury pass upon the admissibility of evidence when constitutional grounds are asserted for excluding it). And, if the issue is submitted to the jury, these statutes further provide that the jury must find beyond a reasonable doubt that the evidence was legally obtained. See Article 38.23(a); Article 38.22, Section 6.
Under these circumstances, the prosecution should be permitted to prove to the trial court the voluntariness of a consent to search by a preponderance ■ of the evidence. This strikes a proper balance between all competing interests. And, contrary to the position taken by a majority of the United States Supreme Court in Jackson v. Denno, I also trust juries to make these determinations fairly and accurately.
This brings us once again to Jackson v. Denno. In that case, the United States Supreme Court decided about one-third of the states’ procedures for determining the volun-tariness of a confession (the New York rule) violated the due process clause of the Fourteenth Amendment. See Jackson v. Denno, 378 U.S. at 369-97, 84 S.Ct. at 1777-91 . 12 The procedure struck down in Jackson v. Denno provided that if there existed a factual dispute as to the voluntariness of a confession, the trial court had to submit the issue to the jury. See Jackson v. Denno, 378 U.S. at 377-82, 84 S.Ct. at 1781-83 .
The United States Supreme Court decided this procedure violated due process because juries could not be trusted to decide these issues fairly and accurately. See Jackson v. Denno, 378 U.S. at 386-91, and at 405-06, 84 S.Ct. at 1786-88, and at 1796 (Black, J., dissenting) (juries can be trusted to decide factual issues). Texas apparently followed *253 the procedure struck down in Jackson v. Denno, 378 U.S. at 378-79 fn. 9, 397-99, and at 405-06, 416-18, 84 S.Ct. at 1782 fn. 9, 1792, and at 1796, 1802 (Black, J., dissenting).
In response to Jackson v. Denno, our Legislature was compelled to enact Article 38.22, Section 6, 13 and amend Article 38.23 14 to bring our procedures in line with the federal mandate of Jackson v. Denno. Therefore, I would adopt the federal preponderance of the evidence standard since the procedure now before the Court has been federalized as the result of another federal interpretation of the Fourteenth Amendment’s due process clause.
I dissent.
KELLER, J., joins this dissent.
. Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991).
. Most of the United States Constitution is devoted to the division of power between the various branches of the federal government and the states with the states retaining the powers not specifically granted to the federal government in the federal constitution. See U.S. Const., Amend. X. The federal Bill of Rights occupies a *247 small portion of the United States Constitution. The most fundamental right our Founders bestowed upon us was the right to decide for ourselves through the political process how we will order our affairs. The federal Bill of Rights was intended to grant few, but precious, rights which are not subject to the political process. The rights granted to us in the federal Bill of Rights are for the most part self-explanatory.
. United States Supreme Court cases decided shortly after the adoption of the Fourteenth Amendment took a much narrower view than they do now of what constitutes "due process of law.” See, e.g., Howard v. Kentucky, 200 U.S. 164, 170-72 , 26 S.Ct. 189, 190-91 , 50 L.Ed. 421 (1905); Missouri Pac. Ry. v. Humes, 115 U.S. 512, 519-22 , 6 S.Ct. 110, 112-13 , 29 L.Ed. 463 (1885) (if the laws enacted by a state be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence prescribes for the security of private rights, the harshness, injustice, and oppressive character of such laws will not invalidate them as affecting life, liberty, or property without due process of law). One of the best examples I have found of an application of the due process clause as it was originally intended to apply is contained in Ex parte Converse, 137 U.S. 624, 630-32 , 11 S.Ct. 191, 193 , 34 L.Ed. 796 (1891). In that case, the Court applied the concept of "due process oflaw” as follows:
"Appellant has been subjected, as all persons within the state of Michigan are, to the law in its regular course of administration through courts of justice, and it is impossible to hold that a judgment so arrived at is such an unrestrained and arbitrary exercise of power as to be utterly void. We repeat, as has been so often said before, that the fourteenth amendment undoubtedly forbids any arbitrary deprivation of life, liberty, or property, and, in the administration of criminal justice, requires that no different or higher punishment shall be imposed on one than is imposed on all for like offenses, but it was not designed to interfere with the power of the state to protect the lives, liberty, and property of its citizens, nor with the exercise of that power in the adjudications of the courts of a state in administering the process provided by the law of the state. The supreme court of Michigan did not exceed its jurisdiction, or deliver a judgment abridging appellant's privileges or immunities, or depriving him of the law of the land of his domicile. (Citations Omitted).”
. The federal courts have stated that "substantive due process” prevents the government from engaging in conduct that “shocks the conscience" or interfering with rights "implicit in the concept of ordered liberty.” See United States v. Salerno, 481 U.S. 739, 746 , 107 S.Ct. 2095, 2101 , 95 L.Ed.2d 697 (1987). However, United States Supreme Court cases decided shortly after the adoption of the Fourteenth Amendment have stated this is a “strange misconception of the scope” of the Fourteenth Amendment. See Humes, 115 U.S. at 520 , 6 S.Ct. at 112 :
"But, from the number of instances in which [the Fourteenth Amendment is] invoked to set aside the legislation of the states, there is abundant evidence, as observed by Mr. Justice Miller, in the case referred to, 'that there exists some strange misconception of the scope of this provision, as found in the fourteenth amendment.' It seems, as he states, to be looked upon 'as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.’ "
. Justice Black’s dissenting opinion in Jackson v. Denno correctly summarizes the problem as follows:
"My wide difference with the Court is in its apparent holding that it has constitutional power to change state trial procedures because of its belief that they are not fair. There is no constitutional provision which gives the Court any such law-making power. I assume, although the Court’s opinion is not clear on this point, that the basis for its holding is the 'due process of law' clause of the Fourteenth Amendment. The Court appears to follow a judicial philosophy which has relied on that clause to strike down laws and procedures in many fields because of a judicial belief that they are ‘unfair,’ are contrary to ‘the concept of ordered liberty,’ 'shock the conscience,' or come within various other vague but appealing catch phrases. (Citations Omitted).” See Jackson, 378 U.S. at 407 , 84 S.Ct. at 1797 (Black, J., dissenting). (Emphasis Supplied).
. Another example, in Furman v. Georgia at least two justices of the United States Supreme Court would have held the death penalty in all cases violates the United States Constitution under the “shocks the conscience” standard even though the "plain” language of the Fourteenth Amendment expressly says otherwise. See Furman v. Georgia, 408 U.S. 238, 257-305 , 92 S.Ct. 2726, 2736-60 , 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) and at 314-73, 360-61, 92 S.Ct. at 2765-95, 2788 (Marshall, J., concurring) (death penalty is in all circumstances for all crimes unconstitutional because it " ‘shocks the conscience and sense of justice of the people ’ ”) (emphasis supplied); but see U.S. Const., Amend. XIV (state may not deprive a citizen of “life, liberty or property” without "due process of law”) (emphasis supplied).
. See, e.g., Jackson v. Denno, 378 U.S. at 405-06, 84 S.Ct. at 1796 (Black, J., dissenting) (today’s holding means that hundreds of prisoners in New York state have been convicted after the kind of trial which the Court now says is unconstitutional; the disruptive effect which today’s decision will have on the administration of criminal justice throughout the country will undoubtedly be great, and before the Court’s decision is even a day old, the Court relies on it to vacate convictions in 11 cases from Arizona, Pennsylvania, Texas, New York and the District of Columbia).
. Moreover, it also is likely that our constitution actually provides less protection than what the federal constitution provides on matters of common subject. See Bauder, 921 S.W.2d at 706 fn. 5 (McCormick, P.J., dissenting); Heitman v. State: The Question Left Unanswered, 23 St. Mary’s L.J. 929, 956-74 (1992) (and authorities cited therein).
. It is not even clear whether Paprskar was interpreting our constitution. See Paprskar, 484 S.W.2d at 737 . But, if it was, it is clear it was relying at least in part on United States Supreme Court precedent in doing so. See id. It is curious the majority recognizes that this Court in Paprskar relied in part on United States Supreme Court precedent for the clear and convincing evidence standard, yet the majority refuses to follow United States Supreme Court precedent when it comes to deciding whether to abandon this standard and adopt the lower preponderance of the evidence standard. If this Court has relied on United States Supreme Court precedent for the higher standard, then why does it not now rely on United States Supreme Court precedent for the lower standard in this first case here to present the issue since the United States Supreme Court lowered the standard? And, if the issue is so well-settled, then why did the Court grant the petition for discretionary review in this case?
. The majority also cites Juarez v. State for the proposition that the prosecution must prove the voluntariness of a consent to search by clear and convincing evidence. See Juarez v. State, 758 S.W.2d 772, 775 (Tex.Cr.App.1988). However, Juarez relied on Paprskar and the same authorities upon which Paprskar relied. These authorities do not support the proposition for which they are cited in Juarez, Paprskar and the majority opinion in this case.
. Relying on Justice Brennan’s dissenting opinion in Lego , the majority does say that a " 'lower standard of proof will necessarily result in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard.’ ” Lego, 404 U.S. at 491-93 , 92 S.Ct. at 628 (Brennan, J., dissenting). However, assuming the validity of this proposition, this cuts both ways. A higher standard of proof will necessarily result in the exclusion of more voluntary confessions.
In addition, the majority has said this Court will not "blindly follow” United States Supreme Court precedent in interpreting our constitution. See Heitman, 815 S.W.2d at 690 . Yet, we ultimately learn the majority effectively relies on a dissenting opinion from a United States Supreme Court case for its holding in this case. See Lego, 404 U.S. at 491-93 , 92 S.Ct. at 628 (Brennan, J., dissenting). So, are we now blindly following dissenting opinions from the United States Supreme Court to interpret our constitution?
. But see Jackson v. Denno, 378 U.S. at 399-424, 84 S.Ct. at 1793-1805 (Black, J., dissenting), and at 422-28, 84 S.Ct. at 1805-07 (Clark, J., dissenting), and at 426-40, 84 S.Ct. at 1807-14 (Harlan, J., dissenting).
. See Acts 1965, 59th Leg., vol.2, p. 317, ch. 722. The procedures set out in Article 38.22, Section 6, are even commonly referred to as a Jackson v. Denno hearing.
. See Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646192. Public record. Not legal advice.