State v. Kaiser

• Decision Date: 20 December 1991
• Docket Number: No. 2-91-136-CR,2-91-136-CR
• Citation: 822 S.W.2d 697
• Court: Texas Court of Appeals
• Parties: The STATE of Texas, State, v. Charles Francis KAISER, Appellee.

Page 697

822 S.W.2d 697

The STATE of Texas, State, v. Charles Francis KAISER, Appellee.

No. 2-91-136-CR.

Court of Appeals of Texas,

Fort Worth.

Dec. 20, 1991.

Discretionary Review Refused

March 18, 1992.

Tim Curry, Dist. Atty. and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for appellant.

Mark G. Daniel, Fort Worth, for appellee.

Before WEAVER, C.J., and MEYERS and DAY, JJ.

OPINION IN RESPONSE TO THE STATE'S PETITION FOR DISCRETIONARY REVIEW

DAY, Justice.

This opinion is in response to a petition for discretionary review filed by the State in this cause. The State, on original submission, addressed the issue of the appealability of the order in question, and of this court's jurisdiction, only superficially. Now, the State for the first time cites authority for the proposition that this order is appealable. Our prior opinion and judgment in this cause are hereby withdrawn, and this opinion is substituted therefor.

This is an appeal from a pretrial preliminary ruling on the use of "child outcry" testimony pursuant to TEX.CODE CRIM.PROC.ANN. art. 38.072 (Vernon Supp.1991). Because we hold that this appeal is not an appeal from an order granting a "motion to suppress evidence, a confession, or an admission ..." pursuant to TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(5) (Vernon Supp.1991), we dismiss this appeal for want of jurisdiction.

Appellee was charged with the offense of indecency with a child. See TEX.PENAL CODE ANN. § 21.11 (Vernon 1989). On April 10, 1991, a pretrial hearing was held on various pretrial motions of the defense, including a discussion of whether or not article 38.072 requires 14 days written notice, or merely 14 days constructive notice. At the end of both parties' argument, defense counsel asked for an evidentiary hearing on this "motion" at a later date to determine the admissibility of the statement. On April 12, there was another pretrial hearing, and at that time the motion was discussed as an exception to the hearsay rule. The State attempted to show that article 38.072 was satisfied by presenting defense counsel with an arrest warrant, with an attached affidavit. The detective's affidavit stated that the victim told her father, who immediately called the police. The court felt the statement in the affidavit was not an outcry statement that satisfied the requirements of the statute. After further argument the prosecution asked the judge for a preliminary ruling as to whether the outcry testimony would be admitted at trial. This exchange followed:

Court: Let me interrupt you for a moment. The Court had understood from informal discussions with Mr. Daniel that he had not yet objected to it and that he would wait upon the trial to object to it. I'm assuming from all discussions that he, in fact, is going to object to it. I guess that's understood by everybody; is that correct?

Mr. Daniel [defense counsel]: That's a fair understanding, Judge.

Mr. Tosh [prosecution]: Your Honor if I may--

Court: Yes, the Court will rule, then. Go ahead. I'll hear you.

Mr. Tosh: Your Honor, if I may, I believe back on Wednesday, Mr. Daniel is the one who actually brought this up. We had discussed it previously because we both had questions concerning this statement. And I believe he brought it before the Court on Wednesday to make a determination and you had put it off until today to make that determination. And the State is asking you--I really do need to know how I need to prepare for this case. And I really do need to know: Are you going to allow me to put Mr. Miranda on the stand to use the outcry statement, because, if not, I've got to make some changes in my case.

Mr. Daniel: Judge, we both need to know.

Court: The objection will be sustained then in regards to admissibility under this circumstances [sic] of the proposed evidence of the communications of the child witness to the parent. Is that what we've been discussing all along? [Emphasis added.]

The parties went on to discuss other pretrial matters, and the parties left with the apparent understanding that the case would go to trial the following Monday. After a brief recess, the State came back and announced that the State filed its notice of appeal as to the ruling concerning the "suppression" of the outcry statement.

The State urges that it had the right to appeal, although there was no formal, written motion or order suppressing the evidence, in the following terms: "it is clear from the record that (1) the appellee [Kaiser] objected to the introduction of the outcry testimony; (2) a hearing was held on the admissibility of the statement; (3) both the State and the appellee requested the court rule on whether or not the outcry statement was admissible; and (4) the trial court ruled that the statement could not be used." State's brief at 5. While citing no authority for the following proposition, essentially the State contends that based on the foregoing, this appeal is permissible as an appeal from the grant of a "motion to suppress evidence" and is authorized under TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(5). We disagree.

To "suppress evidence" is to keep it from being used in a trial by showing that it was either gathered illegally or that it is irrelevant. The suppression of evidence is the ruling of a trial judge to the effect that evidence sought to be admitted should be excluded because it was illegally acquired. Black's Law Dictionary 1291 (5th Ed.1979). Generally, the reason such evidence is not admitted is because it was obtained in direct violation of a defendant's constitutional rights under the Fourth, Fifth and Sixth amendments and its Texas Constitution analog (i.e., violations of the right to be secure against unreasonable searches and seizures, involuntary or coerced confessions, or violations of the right to counsel). Thus, the reason for "suppression" of evidence is not because the evidence is in some manner suspect or untrustworthy; the evidence is deemed inadmissible because of our constitutional principles.

The concept of the inherent unreliability of hearsay evidence, on the other hand, long predates our constitution. Hearsay evidence is a statement made in court that repeats an out-of-court statement, thus resting for its value upon the credibility of the person who made the out-of-court remark. This evidence is inadmissible, absent some exception, because of its inherent unreliability, not because it inures to some fundamental right that is constitutionally protected.

The State argues that the Texas statute should be construed to allow the State to appeal any pre-trial evidentiary ruling of the trial court. As the Texas statute is worded more narrowly than the analogous federal statute, (which, in turn, has been construed more narrowly than the construction the State now seeks) ¹ we cannot agree.

There is no legislative history in support of § 44.01, but it is clearly based on the federal counterpart. Moreno v. State, 807 S.W.2d 327, 329-30 (Tex.Crim.App.1991). In cases in which the Legislature's intention is not altogether clear, the courts must resort to rules of statutory construction to give meaning to legislative enactments. State v. Shopper's World, Inc., 380 S.W.2d 107, 111 (Tex.1964); Campbell v. State, 644 S.W.2d 154, 165 (Tex.Civ.App.--Austin 1982) pet. ref'd., 647 S.W.2d 660 (Tex.Civ.App.1983) (en banc).

In construing a statute, where a word is used, it should usually be construed in its ordinary rather than in its technical sense. But when a term unknown to the law has a particular or technical meaning as applied to some art, science or trade, the court will look to the particular craft in order to ascertain its proper significance. Lloyd A. Fry Roofing Co. v. State, 541 S.W.2d 639, 642 (Tex.Civ.App.--Dallas 1976, writ ref'd n.r.e.); Texas & N.O.R. Co. v. W.A. Kelso Building Material Co., 250 S.W.2d 426, 430 (Tex.Civ.App.--Galveston 1952, writ ref'd n.r.e.). The term "suppress evidence" in the legal profession has become a term of art with a specific meaning in the legal profession. ² Thus, we hold that by using the term "suppress" alone, not in conjunction with the broader term "exclude," the Legislature meant to limit the State's appeal to those instances where evidence is suppressed, in the technical sense, not merely excluded.

Further, the existence or nonexistence of the particular intent of a statute may be inferred from the fact that an act does not contain a certain provision. State v. Jones, 570 S.W.2d 122, 123 (Tex.Civ.App.--Austin 1978, writ ref'd n.r.e.). Also, the express mention of one person, thing, consequence, or class is tantamount to the express exclusion of all others. Ex parte McIver, 586 S.W.2d 851, 856 (Tex.Crim.App. [Panel Op.] 1979); Lenhard v. Butler, 745 S.W.2d 101, 105 (Tex.App.--Fort Worth 1988, writ den'd.). Ex parte Halsted, 147 Tex.Crim.R., 453, 182 S.W.2d 479, 484 (1944). In enacting § 44.01(a)(5), and by choosing not to parrot the federal statute exactly, the Texas Legislature has excluded any other appeals except from the suppression of evidence, a confession or an admission.

In contrast, we now turn to the legislative intent in enacting TEX.CODE CRIM.PROC.ANN. § 38.072. In enacting article 38.072, it is unlikely that the Legislature meant to do more than state procedures by which an out-of-court statement could become admissible as an exception to the hearsay rule. The rule was meant to create an exception to the hearsay rule, similar to the longstanding hearsay exception for "outcry" in rape cases. Holland v. State, 802 S.W.2d 696, 697 (Tex.Crim.App.1991); Campos v. State, 172 Tex.Crim.R. 179, 356 S.W.2d 317, 318 (1962). The constitutional rights of the defendant are not implicated by this rule, ³ and we find that evidence excluded because the State failed to meet the procedural prerequisites for the admissibility of this statement should not be deemed "suppressed evidence" for the purposes of an interlocutory appeal. Holland, 802 S.W.2d at 697-98;...