Pannell v. State

TEAGUE, Judge, dissenting.

Appellant contends in his appeal that his written confession was inadmissible evidence at his trial. Implicitly, he presents the following question for this Court to answer:

Because one of the Rules of the Supreme Court, see Art. XII, Section 8, Code of Professional Responsibility, DR 7-104, that was enacted in 1973, was violated by the District Attorney when his investigator took a confession from appellant, did this violation cause Art. 38.23, V.A.C. C.P. to become applicable to this cause, thus causing appellant’s confession to become inadmissible evidence at his trial?

This question should be answered in the affirmative.

In light of Henrich v. State, 666 S.W.2d 185 (Tex.App. — Dallas 1983), which was a unanimous opinion authored by Justice Guillot of the Dallas Court of Appeals, the position I took when I filed a dissenting opinion to the original panel opinion in this cause, in which I concluded that appellant’s confession was inadmissible evidence at his trial, has been strengthened.

In Henrich v. State, supra, the Court of Appeals was confronted with a factual situation similar to the one in this cause. There, two defendants were accused of criminal wrongdoing. One of the defendants, with his attorney, went and visited the assistant district attorney, a licensed member of the Bar of this State, who was handling the case. The opinion reflects that either before or during the visit the assistant district attorney was made aware that the other defendant had retained the services of another attorney. Notwithstanding this knowledge, the assistant district attorney entered into an agreement with the defendant who had come to his office, which agreement dictated that the defendant would record future conversations he might have with his co-defendant, which, of course, would occur without the knowledge of either the co-defendant or the co-defendant’s attorney. The defendant subsequently recorded conversations between himself and his co-defendant. At the co-defendant’s trial, and over objection, the trial court admitted into evidence the taped conversations. The Court of Appeals held that in admitting the taped conversations into evidence the trial court committed reversible error.

For reasons stated in its opinion, the Court of Appeals made several holdings. It first held that the disciplinary rules of the Code of Professional Responsibility of this State have the same force and effect as the Texas Rules of Civil Procedure have to the matters to which they relate. The majority opinion in this cause does not disagree with this principle of law. The Court *103 of Appeals next held that the Rules of Civil Procedure have the same force and effect as statutes or laws of this State. Although the majority opinion does not agree with this principle of law, it acknowledges that the State Bar of Texas has conceded that its Rules “have the force and effect of statutes of this State.” Silverman v. State Bar of Texas, 405 F.2d 410, 414 (5th Cir.1968), on remand 303 F.Supp. 486 (W.D. Tex.1969).

In reaching its conclusion that the taped conversations were inadmissible evidence at the co-defendant’s trial, and after finding that the assistant district attorney in that cause had violated DR 7-104, the Court of Appeals used the following reasoning:

“[W]hen the assistant district attorney violated DR 7-104, it was the same as violating the statute. Because the evidence obtained through the taped conversations was obtained in violation of a statute, the trial judge should have granted appellant’s motion to suppress pursuant to TEX.CODE CRIM.PROC. ANN. art. 38.23 (Vernon 1979).

In this instance, however, a majority of this Court holds that even though it was established that in obtaining appellant’s confession the District Attorney had violated DR 7-104, this did not, pursuant to Art. 38.23, V.A.C.C.P., render appellant’s confession inadmissible evidence at appellant’s trial. It errs in so holding because DR 7-104 is a statute or law of this State.

DR 7-104 provides in pertinent part the following:

(A) During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Because District Attorneys and their assistants must be licensed attorneys at law, they are, like any other licensed attorney of this State, subject to the laws, statutes, or rules of this State which govern professional responsibility. See Art. 320a-l, Sections 12(a) and 12(b), V.A.C.S. Also see Art. 332d, V.A.C.S.

Art. 38.23, supra, provides in pertinent part:

No 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... [Emphasis Added].

This statute is clearly and expressly worded in such a way that there can be no doubt that any evidence obtained by a peace officer or anyone else in violation of any provisions of the Constitution or laws of the State of Texas is not to be admitted at the accused’s trial.

It is now beyond inquiry that when the Legislature of this State enacted the provisions of the State Bar Act, see Art. 320a-l, V.A.C.S., it intended to provide by statute a full and comprehensive set of laws to cover completely the practice of law and the regulation and disciplining of lawyers. By such statute, the Legislature also empowered the Supreme Court of Texas to enact laws in the form of a Code of Professional Responsibility, which it has done. The Code consists of laws that govern the professional responsibility of licensed attorneys of this State. Thus, the provisions of Art. 320a-l, supra, and the Code of Professional Responsibility are the kinds of “laws of the State of Texas” that were contemplated by the Legislature when it enacted Article 38.23, supra.

What is so obviously wrong with the majority opinion is its failure to understand the meaning of the term “laws,” as that term is used in Art. 38.23, supra. For example, a duty of commission or omission that is placed upon licensed attorneys of this State by the Code of Professional Responsibility is a duty “imposed by law,” e.g., Howard v. Clack, 589 S.W.2d 748 (Tex.Civ.App. — Dallas 1979), no writ histo *104 ry, and as such is that kind of law the Legislature contemplated when it enacted Art. 38.23, supra.

Furthermore, the failure of the Legislature to restrict or limit the meaning of the phrase, “laws of the State of Texas,” only to violations of “statutes” which the Legislature had in the past or would in the future expressly enact, e.g., Honeycutt v. State, 627 S.W.2d 417, 422 (Tex.Cr.App. 1982), reflects an intent on the part of the Legislature to implicate in the phrase, “laws of the State of Texas,” not just Legislatively enacted statutes, but to implicate as well other kinds of laws, such as court made law, rules authorized by and lawfully adopted under a statute, administrative rules and regulations, municipal ordinances, orders of commissioners’ courts, and the like.

Thus, the majority opinion errs when it implicitly holds that the phrase, “laws of the State of Texas,” is restricted or limited only to statutory laws expressly passed and enacted by the Legislature in the past or to be passed and enacted in the future. The majority also errs when it implicitly holds that because the Code of Professional Responsibility is to be executed in an administrative fashion, it cannot constitute a part of the “laws” contemplated by Art. 38.23, supra. Overlooked by the majority, however, is the fact that the principal changes effected by the Administrative Procedure and Texas Register Act of this State, see Article 6252-13a, V.A.C.S., are that the agency must include in its decision findings of fact and conclusions of law. 2 Tex.Jur.2d Administrative Law, Section 95.

The majority opinion’s reliance on Federal cases as authority for its holdings is misplaced because the Federal government has not ever seen fit to enact a mandatory exclusionary statute, such as the State of Texas did when it enacted Art. 38.23, supra, which states in no uncertain terms that under no circumstances may evidence obtained in violation of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, be admitted in evidence against the accused at his trial. Thus, because a Federal prosecuting attorney might have engaged in unethical conduct in obtaining evidence, this, standing alone, will not cause the evidence to become inadmissible in a Federal Court. However, the same is not true of a prosecuting attorney in the State of Texas because the canons of ethics which govern him are part of the laws of this State.

In this instance, the facts are not in dispute that before appellant gave his confession to the District Attorney’s investigator, the District Attorney was well aware that appellant was then represented by two court appointed attorneys and was also well aware of what his investigator was then doing. When the District Attorney’s agent, his investigator, contacted appellant, appellant’s attorneys were not notified or contacted. This was clearly a violation of the law as contained in DR 7-104. Also see Henrich, v. State, supra, and compare, Brewer v. State, 649 S.W.2d 628 (Tex.Cr. App.1983).

Because appellant’s confession was obtained in violation of a law of this State, it became inadmissible evidence at appellant’s trial.

For the above and foregoing reasons, the majority errs in sustaining the trial court’s decision to admit into evidence appellant’s confession. I respectfully dissent to its holding that the confession was admissible evidence.