State v. Roberts

• Court: Texas Court of Criminal Appeals
• Writing for the Court: BAIRD; KELLER; WHITE; MALONEY
• Citation: State v. Roberts, 940 S.W.2d 655 (Tex. Crim. App. 1996)
• Decision Date: 11 December 1996
• Docket Number: No. 1126-95,1126-95
• Parties: The STATE of Texas, Appellant, v. Clortis Foston ROBERTS, Appellee.

Page 655

940 S.W.2d 655

The STATE of Texas, Appellant, v. Clortis Foston ROBERTS, Appellee.

No. 1126-95.

Court of Criminal Appeals of Texas En Banc.

Dec. 11, 1996.

Michael A. Lamson, Houston, for appellee.

Kimberly Aperauch Stelter, Assistant District Atty., Houston, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON THE

STATE'S PETITION FOR

DISCRETIONARY REVIEW

BAIRD, Judge.

Appellee was charged with misapplication of fiduciary property. Tex.Penal Code Ann. § 32.45. Appellee filed a pretrial motion requesting the exclusion of the complainant's civil deposition testimony. The trial judge granted the motion and the State appealed, contending the deposition testimony was admissible as "former testimony" under Tex.R.Crim.Evid. 804(b)(1). ¹ The Court of Appeals affirmed. State v. Roberts, 909 S.W.2d 110 (Tex.App.--Houston [14th] 1995). We granted the State's petition for discretionary review to determine the correctness of that decision. We will dismiss for want of jurisdiction.

I.

The Court of Appeals recited the facts as follows:

From October 1991 until August of 1992, [the complainant] cohabitated with [appellee]. [The complainant], who previously had been diagnosed with AIDS, was the beneficiary of a former roommate's life insurance policy. While [the complainant] and [appellee] cohabitated, [the complainant] gradually put these insurance proceeds into accounts in [appellee's] name. [The complainant] also gave [appellee] a power of attorney over various matters. In August 1992, [the complainant] received the last insurance proceeds check and, in September, [appellee] ordered [the complainant] out of [appellee's] home.

Approximately a year later, November 1993, [the complainant] brought a civil action against [appellee] alleging breach of fiduciary duty. [The complainant] was deposed as part of this civil action. Because of [the complainant's] deteriorating condition, this deposition was used in the civil jury trial instead of [the complainant] testifying in person. At the conclusion of the civil trial, the jury awarded [the complainant] approximately $180,000 in actual and punitive damages for [appellee's] breach of fiduciary duty.

After the civil judgment was entered, [the complainant] died, and, subsequently, the state initiated criminal charges against appellee. No criminal deposition or hearing testimony was taken from [the complainant] while the criminal case was pending. In addition, when [the complainant] was deposed, no criminal action against appellee was pending. Appellee moved for and was granted suppression of [the complainant's] deposition. The state appeals the trial court's decision asserting that the deposition is admissible former testimony. See TEX.R.CRIM.EVID. 804. Thus, we are to determine whether Texas law allows the state to use a civil deposition in a criminal prosecution.

State v. Roberts, 909 S.W.2d at 111.

II.

A threshold issue in any case is whether the court has the jurisdiction to resolve the pending controversy. ² This issue of jurisdiction is fundamental and cannot be ignored. Accordingly, a court may sua sponte address the issue because subject matter jurisdiction cannot be conferred by agreement of the parties; jurisdiction must be vested in a court by constitution or statute. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App.1980); and, Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Cr.App.1964). In short, each court has jurisdiction to determine whether it has jurisdiction. Ex parte Paprskar, 573 S.W.2d 525 (Tex.Cr.App.1978).

The State acquired the right to appeal in 1987. Acts 1987, 70th Leg. ch. 382, § 1. Cf., Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Tex.Code Crim.Proc.Ann. art. 44.01 enumerates the circumstances under which the State is entitled to appeal an order of a court in a criminal case. The instant case deals with subsection (a)(5) which provides, in pertinent part:

(a) The state is entitled to appeal an order of a court in a criminal case if the order:

(5) grants a motion to suppress evidence, a confession, or an admission.... ³

Therefore, the Court of Appeals and this Court have jurisdiction to entertain the State's appeal only if the trial judge granted a motion to suppress evidence as contemplated by the statute.

If a statute is clear and unambiguous, we give effect to its plain meaning. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). However, if the statute is not plain but ambiguous, we may resort to extratextual factors to interpret the statute. Id., 818 S.W.2d at 785-86. In the context of art. 44.01 the Legislature did not define what constitutes a motion to suppress evidence. And, we have not taken the opportunity to do so. However, at least four of our courts of appeals have considered what constitutes a motion to suppress and have come to different conclusions.

In State v. Monroe, 813 S.W.2d 701 (Tex.App.--Houston [1st Dist] 1991), the defendant filed a motion to suppress evidence of unadjudicated offenses. The trial judge granted the motion and the State appealed. The Court of Appeals reversed. To support its holding, the Monroe Court relied on an incomplete definition from Black's Law Dictionary of "motion to suppress" as one that "eliminate[s] [evidence] from the trial of a criminal case." Id. 813 S.W.2d at 702. ⁴ The Court of Appeals held the trial judge prematurely granted the motion because the evidence may have become relevant at trial. Monroe, 813 S.W.2d at 703.

In State v. Wright, 830 S.W.2d 309 (Tex.App.--Tyler 1992), the defendant filed a motion to exclude the testimony of three witnesses on the grounds that the State's late disclosure of the witnesses to the defendant violated the trial judge's discovery order. Wright, 830 S.W.2d at 310-11. The State appealed and the Court of Appeals decided the case on the merits without a discussion of jurisdiction. The Court affirmed a portion of the trial judge's order but vacated the remainder because the sanction imposed on the State was too severe. Id., 830 S.W.2d at 312-13.

In State v. Kaiser, 822 S.W.2d 697 (Tex.App.--Fort Worth 1991), the trial judge ruled prior to trial that certain hearsay statements of a child witness were not admissible as "outcry statements." The State appealed, contending art. 44.01 allowed the appeal of "any pre-trial evidentiary ruling." Id., 822 S.W.2d at 700. The Court of Appeals rejected the State's argument, holding that the phrase "suppress evidence" relates to evidence that was illegally obtained. Id., 822 S.W.2d at 699-700 (citing Black's Law Dictionary 1291 (5th Ed.1979)). The Court concluded the basis for suppressing evidence is not because the evidence was suspect or untrustworthy but because of constitutional principles. Since the hearsay statements were being excluded on a statutory basis, Tex.Code Crim.Proc.Ann. art. 38.072, and not a constitutional basis, the trial judge's order was not appealable. Kaiser, 822 S.W.2d at 701.

The Amarillo Court of Appeals followed the Kaiser rationale in State v. Howard, 908 S.W.2d 602 (Tex.App.--Amarillo 1995). The trial judge granted the defendant's motion to suppress the hearsay statements of three alleged accomplices. Id., at 603. The trial judge relied on Tex.R.Crim.Evid. 803(24) to grant the motion, and the State appealed. The Court of Appeals noted the Legislature did not intend to create an avenue by which the State could secure interlocutory review of general evidentiary rulings. Rather, the Legislature intended to limit the State's right to appeal to questions of constitutional magnitude. Id., 908 S.W.2d at 604. The Court held "[o]nly those rulings which suppress evidence because of purportedly unlawful means by which it was obtained fall within the umbrella of article 44.01(a)(5)." Ibid. (citing Kaiser, supra.).

From these decisions it is clear that some courts of appeals treat any pre-trial motion that seeks to exclude evidence as a "motion to suppress evidence," see, Monroe, supra, and, Wright, supra, while other courts distinguish between the suppression and exclusion of evidence, Kaiser, supra, and Howard, supra. The Kaiser and Howard Courts apply the term "suppress" only to illegally obtained evidence and the broader term "exclude" to all other evidence. Kaiser, 822 S.W.2d at 700; and, Howard, 908 S.W.2d at 604. From these decisions we can easily conclude that the phrase "motion to suppress evidence" as used in art. 44.01(a)(5) is ambiguous and we will take this opportunity to settle the ambiguity. Tex.R.App.P. 200(c)(1). To do so, we must resort to extratextual factors to interpret the statute. Boykin, 818 S.W.2d at 785-86.

III.

A.

First, we note that the mere label attached to the defendant's motion is not determinative of whether an order is appealable under art. 44.01. State v. Moreno, 807 S.W.2d 327, 332 (Tex.Cr.App.1991). To so hold would allow defendants to label their motions in a manner that would circumvent the State's right to appeal. Ibid. Consequently, we look to the effect of the trial court order rather than the title of the defendant's motion. State v. Evans, 843 S.W.2d 576 (Tex.Cr.App.1992). Therefore, the fact that the motion in the instant case was labeled "Defendant's Motion to Suppress" is not determinative.

B.

In construing a statute, words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly. Tex.Gov't. Code Ann. § 311.011(b). The word "suppress" and the phrase "motion to suppress" have developed particular meanings. Kaiser, 822 S.W.2d at 700; and, Howard, 908 S.W.2d at 604. They are terms of art which contemplate more than simple exclusion of evidence pursuant to the general rules of evidence. Ibid. See, e.g. Polk v. State, 738 S.W.2d 274, 276 (Tex.Cr.App.1987) ("Violation of a state statute or constitutional provision in obtaining evidence requires suppression of that evidence under art. 38.23").

Further evidence of...