holding that plain language of article 38.23(a) of Texas Code of Criminal Procedure does not allow for "an inquiry into the potential legal acquisition of evidence once it has been established that it was actually 'obtained in violation of' law"
How later courts described this case
- holding that plain language of article 38.23(a) of Texas Code of Criminal Procedure does not allow for "an inquiry into the potential legal acquisition of evidence once it has been established that it was actually 'obtained in violation of' law"
- holding that the inevitable discovery exception to the federal exclusionary rule is inapplicable to Article 38.23 based on plain language of Article 38.23
- holding that plain language of article 38.23(a
- finding that there is no inevitable discovery doctrine under Texas statutory exclusionary rule
Written by the judges who cited it.
The opinion
BAIRD, Judge,
concurring.
In Garcia v. State, 829 S.W.2d 796 (Tex.Cr.App.1992), a plurality held there was no inevitable discovery exception to Tex.Code Crim.Proc.Ann. art. 38.23. I dissented then but now join the opinion of the Court. I *274 write separately to state my reasons for so doing.
Subsequent to Garcia , and prior to our opinions today, the Legislature twice convened. The 73rd Legislature convened its Regular Session on January 12, 1993, and adjourned sine die May 31, 1993. The 74th Legislature convened its Regular Session on January 10, 1995, and adjourned sine die May 29, 1995. However, in neither session did the Legislature amend art. 38.23.
In Mann v. State, 891 S.W.2d 267, 271-272 (Tex.Cr.App.1994), we stated: ‘When the Legislature meets, after a particular statute has been judicially construed, without changing that statute, we presume the legislature intended the same construction should continue to be applied to that statute.” The Marin majority followed the legal principle adopted eighty-six years ago in Lewis v. State, 58 Tex.Crim. 351 , 127 S.W. 808 , 812 (1910). Accordingly, we must presume the Legislature approved of Garcia interpretation of art. 38.23. 1 See also, Gonzales v. State, 818 S.W.2d 756, 775 (Tex.Cr.App.1991) (Baird, J., dissenting), and Dillehey v. State, 815 S.W.2d 623, 631 (Tex.Cr.App.1991) (Baird, J., dissenting).
More than a century ago, Chief Justice Slayton of the Texas Supreme Court stated:
... It is the duty of a court to administer the law as it is written, and not to make law; and however harsh a statute may seem to be, or whatever may seem to be its omission, courts cannot ... make it apply to cases to which it does not apply, without assuming functions that pertain to the legislative department of the government.
Turner v. Cross, 83 Tex. 218 , 18 S.W. 578, 579 (1892).
Chief Justice Slayton’s words remain true. It is the role of our appellate courts to interpret the law enacted by the Legislature. And, as jurists, we are obliged to implement the expressed will of the Legislature. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). Because art. 38.23 does not expressly contain an exception for inevitable discovery, we are not authorized to create such an exception.
With these comments, I join the majority opinion.
. This presumption is supported by the fact that Tex.Code Crim.Proc.Ann. art. 38.23 was last amended by the Legislature effective September 1, 1987. The amendment was made in response to the opinion of the United States Supreme Court in United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984).
Judge McCormick states there is no significance to the Legislature's inaction following Garcia because Garcia was a plurality opinion. But the Legislature does respond to plurality opinions. A case on point is the plurality opinion in Grunsfeld v. State, 843 S.W.2d 521, 526 (Tex.Cr.App.1992), wherein a plurality of this Court held that Tex.Code Crim.Proc.Ann. art. 37.07(3)(a) did not permit the admission of unadjudicated offenses in non-capital cases. The very next legislative session art. 37.07(3)(a) was amended. Acts 1993, 73rd Leg., ch. 900, § 5.05 eff. Sept. 1, 1993.