State v. Johnson

• Citation: 939 S.W.2d 586
• Decision Date: 20 November 1996
• Docket Number: No. 0610-95,0610-95
• Parties: STATE of Texas, Appellant, v. Jay JOHNSON, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 586

939 S.W.2d 586

STATE of Texas, Appellant, v. Jay JOHNSON, Appellee.

No. 0610-95.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 20, 1996.

Lloyd D. Stansberry, Joseph Hunter, Alvin, for appellant.

Jerome Aldrich, District Attorney, David Bosserman, Asst. District Attorney, Angleton, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Jay Johnson, appellee, and Edwina Prosen, decedent, jointly operated the Sweeny Funeral Home, living together in the upstairs portion of the building that housed the funeral home. On September 29, 1991, appellee called the Sweeny Police Department, reporting that decedent had been shot. The police arrived promptly, searched the funeral home and, over the next two-and-a-half weeks, conducted five more searches of both the funeral home and the hearse used in that business. Appellee, who was subsequently charged with the capital murder of decedent, moved to suppress the evidence gathered pursuant to each of these searches. One of these motions involved the suppression of evidence that decedent's sons had taken from the funeral home and turned over to the police. The sons had removed the evidence over a three day period and appellee's attorney was present on only one of these three days. Appellee asserted that the evidence had been removed in violation of Texas law and, thus, in violation of Texas' exclusionary rule. TEX.CODE CRIM. PROC. art. 38.23(a). The trial court granted all of appellee's motions.

On interlocutory appeal, the Houston Court of Appeals, First Supreme Judicial District, affirmed, holding, among other things, that art. 38.23(a) extends to the actions of private persons. Thus, evidence turned over to the Sweeny Police Department by the sons of the decedent may be properly suppressed if, as the trial court found here, it was obtained in violation of Texas law. TEX. PENAL CODE § 30.02. The court of appeals further held that the fact that appellee's attorney told the decedent's sons not to return the evidence to him in no way undermines the fact that the evidence was seized in violation of Texas law and, therefore, the exclusionary rule applies with full effect. The court of appeals went on to hold that the trial court did not abuse its discretion when it suppressed evidence seized in a subsequent search because the warrant for that search was based on the information illegally obtained by decedent's sons. We granted discretionary review to decide whether the court of appeals erred in its determinations.

When this Court interprets a statute, it is "obliged to implement the expressed will of our legislature, not the will it keeps to itself". Garcia v. State, 829 S.W.2d 796, 799 (Tex.Crim.App.1992). In other words, the plain language of a statute, not the legislative history behind it, dictates our interpretation of that statute. See Daugherty, 931 S.W.2d 268 (Tex.Crim.App.1996). This is so because we assume that the plain language best reflects the intent of the legislature. Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991).

We must, then, turn first to the plain language of the statute at issue in this case:

No evidence obtained by an officer or other person in violation of any provision 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 ...

TEX.CODE CRIM. PROC. art. 38.23(a). This dispute turns on the words "officer or other person". The State contends that "other person" includes only "peace officers or citizens acting as agents for peace officers". State's Brief on Petition for Discretionary Review at 11. Appellee, however, urges that "other person" encompasses private individuals not acting as agents of the government. Appellee's Brief on Discretionary Review at 5.

No doubt, the plain language of art. 38.23 supports the conclusion that the unlawful or unconstitutional actions of all people, governmental and private alike, fall under the purview of Texas' exclusionary rule. One need only turn to a dictionary of the English language: "[O]ther" means "being the ones distinct from those first mentioned". The New Merriam-Webster Dictionary (1989). Since "officer[s]" are "those first mentioned," "other person[s]" are those distinct from officers. Of course, a person can be distinct from an officer in many ways, but the text of art. 38.23 does not draw any distinction other than the most general "officer or other person". And, despite the State's assertion to the contrary, "officer" in no way modifies "other person" so as to limit the meaning of "other person" to "citizens acting as agents for peace officers". State's Brief on Discretionary Review at 11. Not only is the State's contention grammatically insupportable, but it also proposes that the "other person[s]" are somehow like officers, a concept that contradicts the very definition of "other", which serves to draw a distinction, albeit broad, between "officer[s]" and "other person[s]". In fact, many scholars and commentators have consistently regarded the rule as all-inclusive:

The reference to an officer or other person has appeared in the statute since the original enactment in 1925 and always has been thought to mean what it says--that is, to include everybody within the scope of its exclusionary sanction.

Robert O. Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 Tex.L.Rev. 191 226 (1981). This Court, too, has paused to note that, unlike the Fourth Amendment of the United States Constitution which "does not require the exclusion of incriminating evidence illegally obtained through a search by private citizens", Texas' exclusionary rule may very well extend to such searches. But, ultimately, we dismissed the issue as having "no bearing" on the case then before us. Brimage v. State, 918 S.W.2d 466, 479 n. 14 (Tex.Crim.App.1996). See also State v. Comeaux, 818 S.W.2d 46, 52 n. 6 (Tex.Crim.App.1991); Gillett v. State, 588 S.W.2d 361, 363-69 (Tex.Crim.App.1979) (Roberts, J., dissenting).

Sometimes, however, the "plain language" of a statute leads to absurd results and, when this happens, we may turn to extratextual sources in order to discern the intent behind the statute. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). For example, a statute that solely proscribed the use of evidence at trial obtained by a private person in violation of the United States Constitution would be logically absurd because, under our law, actions of private persons do not fall under the purview of the United States Constitution. But there is nothing logically absurd about art. 38.23. As such, we must take it to mean only what it says: that evidence illegally obtained by an "officer or other person" ought be suppressed. Additionally, and as the court of appeals correctly determined, the fact that appellee's attorney told decedent's sons not to return the evidence to him does not bear on this issue. In other words, whether or not appellee's attorney consented to the police receipt of the evidence has nothing to do with whether he consented to the decedent's sons actions in obtaining the evidence. The former has no effect on the application of art. 38.23 and neither party contends that the latter occurred.

Finally, the Court of Appeals affirmed the trial court's suppression of evidence seized in a subsequent search because the probable cause for that search arose primarily from the information illegally obtained by decedent's sons. The State asserts that the evidence from the subsequent search should not be suppressed as "fruit" of illegally obtained evidence because the original evidence was improperly excluded. Our interpretation of art. 38.23 today, however, recognizes that the evidence taken by decedent's sons must be suppressed under our exclusionary rule and the State's argument fails for this reason. The State contends, in the alternative, that the evidence from this subsequent search falls under the good faith exception to our exclusionary rule. We cannot address this argument, however, because it was not raised or disposed of in the court of appeals. The judgment of the court of appeals is therefore affirmed.

WHITE, MANSFIELD and KELLER, JJ., dissent.

McCORMICK, Presiding Judge, dissenting.

I respectfully dissent. In this case, this Court must determine the legislative intent of "other person" in Article 38.23(a), V.A.C.C.P. The majority relies on the "plain" language of Article 38.23(a) and the dictionary meaning of "other" to hold the Legislature intended "other person" to include private persons even those not acting as agents of state actors. ¹

However, I would hold the legislative intent of "other person" in Article 38.23(a) refers only to private persons acting in concert with, or at the behest of, state actors. I also would hold the legislative intent of Article 38.23(a) and its statutory predecessors is that Article 38.23(a) should be construed as incorporating federal exclusionary rule jurisprudence.

When interpreting a statute, this Court's duty is to give effect to the legislative intent of the statute. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). Of course the starting point is the language of the statute itself which will resolve most statutory construction questions. See id. But in construing a statute, even one that is plain on its face, this Court may consider other factors such as the object sought to be attained by the statute, the circumstances under which the statute was enacted, the legislative history of the statute, and the consequences of a particular construction of the statute. See Tex. Gov't Cd., Section 311.023; see also Article 1.26, V.A.C.C.P. (the provisions of the Code shall be liberally construed so as to attain the objects intended by the Legislature)....