The issue in this case is whether article 44.01(a)(5) ⁽¹⁾ of the Texas Code of Criminal Procedure permits the State to bring a pretrial appeal of an adverse ruling on a motion to suppress evidence when the trial court does not conclude that the evidence was "illegally obtained." Although this Court, in Roberts v. State, 940 S.W.2d 655 (Tex.Crim. App. 1996), held that the State cannot appeal a pretrial evidentiary ruling unless the defendant claims that the evidence was "illegally obtained," neither the language of the statute nor legislative intent supports this limitation. It is not consistent with the interpretation other state or federal courts have given to the same or similar language in their government-appeal statutes. Moreover, the rule in Roberts has proved unworkable in practice. Therefore, we overrule Roberts and hold that under article 44.01(a)(5), the State is entitled to appeal any adverse pre-trial ruling which suppresses evidence, a confession, or an admission, regardless of whether the defendant alleges, or the trial court holds, that the evidence was "illegally obtained."

Appellee, Matthew Medrano, was charged with capital murder for the robbery-murder of Benton Smith, a pizza delivery man. The State's only witness to the robbery-murder was Jennifer Erivez, a fourteen-year-old girl, who was standing in the driveway of her home at about 10:00 p.m. waiting for her boyfriend. Jennifer testified that she saw the pizza delivery man drive by and park down the street. Then she saw a maroon car, like a Chrysler LeBaron, drive past slowly and stop under a street light. A man got out of the front passenger side and did something like take the license plate off of the car. Jennifer saw the man's face clearly, but could not recall the car's license plate number. The car then drove further down the street and parked behind the pizza delivery man's truck. The same man got out of the car and walked up to the pizza delivery man. Jennifer heard a gunshot and then saw the man run back to the car. He got in, and the driver sped away.

A few hours later, Jennifer gave police a written description of the person she had seen get out of the car and approach the pizza delivery man:

The front seat passenger is Hispanic, between 17-21 years old, tall, maybe about 6' tall, medium build, short dark colored hair combed back. I did not see any facial hair, and he was wearing a black long sleeve-shirt and underneath he was wearing a white muscle T-shirt-shirt, loose fitting black pants and black shoes.

Jennifer also stated that the maroon car contained a total of four people. Because she was unable to recall the car's license plate number, an El Paso police officer, trained in hypnosis, conducted a videotaped hypnotic session the next day. She was still unable to recall the license plate number. About a week later, the police conducted two photo lineups for Jennifer. She did not identify anyone in those lineups. ⁽²⁾ After she identified Mr. Medrano as the shooter in a third photo lineup two days later, he was arrested and charged with capital murder.

Defense counsel filed a "Motion to Suppress In-Court Identification" ⁽³⁾ based upon Zani v. State, 758 S.W.2d 233 (Tex. Crim. App. 1988), Tex. R. Evid 403, the 6^th and 14^th Amendments to the U.S. Constitution, and Article 1, Sections 10 & 13 of the Texas Constitution. After a pretrial suppression hearing, the trial judge orally granted the defense motion. Her written order stated that she granted the motion "for the reasons stated on the record" at the hearing and that she "also f[ound] said identification was obtained in violation of the 4^th, 5^th, 6^th and 14^th Amendments of the United States Constitution and Article I, sections 9, 10, 13, and 19 of the Texas Constitution."

The State certified that it could not prosecute the case without Jennifer's testimony and filed an appeal with the El Paso Court of Appeals. The Court of Appeals dismissed the State's appeal for want of jurisdiction. State v. Medrano, 987 S.W.2d 600 (Tex. App. - El Paso 1999). That court concluded:

We find that, although the trial court framed her order to conclude that constitutional provisions had been violated, her findings were the result of a balancing test conducted under Texas Rule of Evidence 403. ...

Thus, although constitutional implications may be present in this decision, we find it was not a "suppression" in the sense contemplated by Texas Code of Criminal Procedure, Article 44.01(a)(5) and the case law interpreting it.

Id. at 604 (footnote omitted). The State Prosecuting Attorney filed a petition for discretionary review with this Court. ⁽⁴⁾

Article 44.01 was enacted as a vehicle for the State to challenge "questionable legal rulings excluding what may be legally admissible evidence[.]" ⁽⁵⁾ The purpose of the statute is to permit the pretrial appeal of erroneous legal rulings which eviscerate the State's ability to prove its case. The Texas legislature, in passing Senate Bill 762 in 1987, clearly intended to provide Texas prosecutors with the same vehicle of appeal for pretrial evidentiary rulings as federal prosecutors. As this Court noted in State v. Moreno, 807 S.W.2d 327, 332 (Tex.Crim.App. 1991), "when our Legislature adopted Article. 44.01 in 1987, it made clear its intent to afford the State the same powers afforded the federal government under 18 U.S.C. § 3731." There is no question that under 18 U.S.C. § 3731, federal prosecutors may appeal a wide variety of pretrial evidentiary rulings-not just those tied to motions to suppress illegally obtained evidence. ⁽⁶⁾ Similarly, there is no question that the federal statute is liberally construed. ⁽⁷⁾ The Texas Legislature modeled art. 44.01 after the corresponding federal provision generally. ⁽⁸⁾ The section at issue here, section 5(a)(5), mimics "the clarifying nomenclature of the Wisconsin statute," ⁽⁹⁾ which permits appeals from orders "suppressing evidence." ⁽¹⁰⁾ The Wisconsin Supreme Court has interpreted its statute as allowing the State to appeal any pretrial order barring admission of evidence which would normally be outcome determinative. ⁽¹¹⁾

All fifty states, as well as the District of Columbia, have provisions permitting the government to appeal adverse rulings of a question of law. ⁽¹²⁾ Many of those states use the same or very similar language as that contained in art. 44.01(a)(5), and they permit the State to appeal any pretrial ruling suppressing evidence if that evidence is likely to be outcome determinative. ⁽¹³⁾ Other states explicitly grant the prosecution a broad right to appeal any pretrial suppression, evidentiary or other legal ruling which is likely to determine the outcome of the case. ⁽¹⁴⁾ A few states explicitly permit the State to appeal only orders excluding "seized evidence," "evidence illegally obtained," or "evidence seized in violation of the Constitution." ⁽¹⁵⁾ A handful of state courts have construed their government-appeal statutes to permit only appeals of constitutionally-based pretrial rulings excluding evidence. ⁽¹⁶⁾ At least one state, Ohio, has judicially broadened its government-appeal statute to permit pretrial appeals of nonconstitutional trial rulings excluding evidence, despite language to the contrary. ⁽¹⁷⁾ Although a few states apply their government-appeal statutes narrowly, the vast majority of courts and legislatures across the nation broadly construe their state's right- to-appeal statutes. They focus upon the same major themes: 1) Does this pretrial ruling effectively prevent the government from presenting its case to a jury? And 2) Is the ruling based upon an erroneous interpretation or application of law?

In Roberts, this Court followed that handful of states which have very narrowly construed their state's right-to-appeal statutes. This Court ruled that it lacked jurisdiction to consider a State's appeal from a trial court's ruling that civil deposition testimony was inadmissible. 940 S.W.2d at 660. We held that the phrase "motion to suppress evidence," as used in article 44.01(a)(5), was limited to motions which sought to suppress evidence on the basis that such evidence was "illegally obtained." The defendant in Roberts contended that a videotaped deposition from a civil case was inadmissible hearsay; he did not claim that the deposition testimony was illegally obtained. Because the defendant's motion was not a "motion to suppress evidence" contemplated under art. 44.01(a)(5), went the logic, the order granting the motion was not appealable. Roberts, 940 S.W.2d. at 660. ⁽¹⁸⁾

In arriving at its conclusion in Roberts, this Court stated that the phrase "motion to suppress" was ambiguous, and so looked to extratextual factors to interpret the statute. We focused primarily upon the "technical" definition of "motion to suppress" in Black's Law Dictionary:

Motion to suppress. A device used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth amendment (search and seizure), the Fifth Amendment (privilege against self-incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation, etc.) of the U.S. Constitution.

Roberts, 940 S.W.2d at 658-59 (emphasis in original) (quoting Black's Law Dictionary (6^th ed. 1989)).

The Court in Roberts also relied on the fact that the corresponding federal statute authorizes an appeal by the Government, under 18 U.S.C.A. § 3731, "from a decision or order of a district court suppressing or excluding evidence ...." Texas article 44.01(a)(5) authorizes an appeal from a motion to suppress evidence, but it does not explicitly authorize an appeal from a motion to exclude evidence. In Roberts, this Court reasoned:

[B]y 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.

940 S.W.2d at 659. The legislative history of article 44.01 shows otherwise. The legislative intent, explicitly stated in the Bill Analysis, was to permit the State to appeal any "questionable legal rulings excluding what may be legally admissible evidence." Period.

When construing arguably ambiguous statutes, courts normally look to the object sought to be obtained, legislative history, and the prior statutory use of a term, as well as other criteria, including dictionary definitions. ⁽¹⁹⁾

The legislative history of article 44.01, as noted above, demonstrates that the Texas legislature intended to follow the liberal federal interpretation of the government's right to appeal pretrial evidentiary rulings, as well as that of the vast majority of other states. Furthermore, the Texas Legislature was already familiar with the use of the term "motion to suppress evidence" in the context of pretrial hearings.

The Texas Legislature apparently chose the term "motion to suppress evidence" in article 44.01(a)(5) because pretrial "motions to suppress evidence" can be heard under article 28.01. Article 28.01 outlines the types of motions and pleadings that may be brought pretrial. It states that:

The pretrial hearing shall be to determine any of the following matters:

(6) Motions to suppress evidence-When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court[.]

Tex. Code. Crim. Proc. Art. 28.01. Because the only type of pretrial evidentiary motion mentioned in article 28.01 is a "motion to suppress evidence," it follows that the only type of pretrial evidentiary motion that the State can appeal is the same type that the defendant may file. They are both called a "motion to suppress evidence."

Under article 28.01, a motion to suppress evidence is one in which the defendant (or the State) claims that certain evidence should not be admitted at trial for a constitutional, statutory, evidentiary or procedural reason. There is no logical, legal, or linguistic reason that a single phrase concerning the same pretrial evidentiary motion, should bear one meaning for purposes of which pretrial motions a court may consider, but bear a totally different meaning when the State appeals an adverse ruling on that motion. ⁽²⁰⁾ The rule is simple: If the trial court can rule upon a pretrial motion to suppress evidence, the State can appeal it. ⁽²¹⁾ A motion for the goose is a motion for the gander.

The conclusion in Roberts is inconsistent with Texas law concerning pretrial motions which, under article 28.01, § 1(6), do not distinguish between a "motion to suppress evidence" and a "motion to exclude evidence." There was no reason for the Texas legislature to include "motion to exclude" in article 44.01 because it is not found in article 28.01, either. There is no such statutory term in Texas law as a pretrial "motion to exclude," either for the defendant to file or for the State to appeal.

Finally, the rule in Roberts is, as this case demonstrates, unworkable. Who decides whether a pretrial motion to suppress evidence is one that seeks to exclude "illegally obtained" evidence? If the defendant labels his motion as one to suppress illegally obtained evidence, is that determinative? If the defendant cites constitutional provisions, is that determinative? If the trial court, in ruling, cites constitutional provisions, is that determinative? Or, as in this case, if the court of appeals determines that, even though both the defendant and trial judge cited constitutional provisions, the motion (and ruling) was not really a motion to suppress illegally obtained evidence? This is a linguistic puzzle that only Humpty-Dumpty or a rejection of Roberts can resolve.

This Court does not lightly overrule precedent. As we stated in Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000):

We follow the doctrine of stare decisis to promote judicial efficiency and consistency, encourage reliance on judicial decisions, and contribute to the integrity of the judicial process. But if we conclude that one of our previous decisions was poorly reasoned or is unworkable, we do not achieve these goals by continuing to follow it.

Id. at 571 (footnotes omitted).
As discussed above, the judicial limitation upon the state's right to appeal established in Roberts was flawed from the outset, has proven unworkable, and creates inconsistency and confusion in the law. Moreover, overruling Roberts would not disrupt judicial efficiency and consistency, or detract from the integrity of the judicial process and the reasonable reliance of litigants. It is hard to conclude that litigants or judges have relied upon the holding in Roberts in drafting, filing, hearing, or ruling upon pretrial motions to suppress evidence. But if litigants or judges have relied upon Roberts and drafted or ruled on pretrial motions to suppress carefully omitting any "illegally obtained" language because of their expectation that those motions and rulings are thereby insulated from appellate review, that reliance flies in the face of the explicit legislative history and purpose of article 44.01 as set out above. Article 44.01 was enacted to ensure that erroneous pretrial legal rulings would not be insulated from appellate review.

On occasion, we have said that "[w]hen the Legislature meets, after a particular statute has been judicially construed without changing the statute, we presume the Legislature intended the same construction should continue to be applied to that statute." ⁽²²⁾ This and similar statements originate from early Texas and common law cases which had stated that: "[w]hen an act or part thereof which has received a judicial interpretation is reenacted in the same terms, or where words used in a statute have a definite and well known meaning in law, that construction or that meaning must be considered to have the sanction of the Legislature unless the contrary appears." ⁽²³⁾ Certainly when a legislature reenacts a law using the same terms that have been judicially construed in a particular manner, one may reasonably infer that the legislature approved of the judicial interpretation. There is considerably less force (though still some) to the argument that if a legislature does not agree with the judicial interpretation of the words or meaning of a statute, the legislature would surely have immediately changed the statute. As Judge Dally noted in his concurring opinion in Shivers v. State: ⁽²⁴⁾ the legislative silence toward the rules stated in [a prior case] should not be interpreted as legislative acceptance of that decision. In Helvering v. Hallock, 309 U.S. 106, 60 S. Ct. 444, 84 L. Ed. 604 (1940), it is stated that "It would require very persuasive circumstances enveloping Congressional silence to debar this Court from re-examining its own doctrines." In Girouard v. United States, 328 U.S. 61, 66 S. Ct. 826, 90 L. Ed. 1084 (1946), it was stated that "It is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law. We do not think under the circumstances of this legislative history that we can properly place on the shoulders of Congress the burden of the Court's own error." See also Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235, 90 S. Ct. 1583, 26 L. Ed. 2d 199 (1970). Therefore, in the absence of any persuasive circumstances evidencing a clear design that legislative inaction be taken as acceptance of [a prior case], the mere silence of the Legislature is not a sufficient reason for refusing to reconsider that decision. Boys Markets, Inc. v. Retail Clerk's Union, Local 770, supra.

Thus, while this Court should consider the fact that the legislature did not immediately amend article 44.01(a)(5) in reaction to the Roberts decision, legislative inaction does not necessarily equate to legislative approval. The Legislature is not required to repair our error, nor are we forbidden to do so ourselves. Given the explicit legislative purpose announced in the written Bill Analysis and throughout the oral hearings on the 1987 state's-right-to-appeal bill, the fact that this extensive legislative history was never consulted or discussed in Roberts, and the longstanding and definite meaning of the term "motion to suppress evidence" used in both arts. 28.01 and 44.01, we conclude that the Legislature adequately expressed its intent at the time in originally enacted article 44.01. It did not need to re-iterate that intent by amending the statute after Roberts.
We therefore, overrule Roberts because article 44.01(a)(5) is not limited solely to pretrial rulings that suppress "illegally obtained" evidence. The State may appeal an adverse ruling on any pretrial motion to suppress evidence as long as the other requirements of the statute are met.

The trial court's ruling in this case does not involve evidence which would normally be considered "illegally obtained." Still, the ruling excluding Jennifer's identification testimony-which was a legal ruling excluding evidence-is appealable under article 44.01(a)(5) if it could be determined pretrial under article 28.01, § 1(6). Relying on the standards concerning the admissibility of post-hypnotic testimony set out in Zani v. State, 758 S.W.2d 233 (Tex. Crim. App. 1988), ⁽²⁵⁾ the trial court orally ruled that Jennifer's identification of Mr. Medrano was inadmissible. After hearing arguments from the prosecutor, the trial court affirmed her oral order with a written ruling that specifically held that the identifications were obtained in violation of the United States and Texas Constitutions. The trial court's written ruling falls squarely within the rulings intended to be appealable under Article 44.01.

Therefore, we vacate the decision by the court of appeals which held that it had no jurisdiction to hear the State's appeal and remand to that court to determine the merits of this appeal.

Cochran, J.

Delivered: February 6, 2002

Publish

1. Article 44.01(a), in pertinent part, provides:

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

• grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance to the case.

Tex. Code Crim. Proc. Art. 44.01(a).

2. Mr. Medrano's photo was not in either of those lineups.

3. There were two different motions to suppress evidence based upon Jennifer's photographic identification and her in-court identification. Both were called motions to suppress identification.

4. The Questions presented by the State Prosecuting Attorney were:

• Whether the Court of Appeals erred in holding that, under State v. Roberts, 940 S.W.2d 655 (Tex. Crim. App. 1996), it had no jurisdiction to consider the State's appeal in this case?
• Whether the Court should reconsider its decision in State v. Roberts, 940 S.W.2d 655 (Tex. Crim. App. 1996)?

  5. Bill Analysis, S.B. 762, Acts 1987, 70^th Leg., ch. 382, § 1 (codified at Tex. Code Crim. Proc. art. 44.01). The "Background" Section of the bill analysis begins:

  The Texas Constitution provides that the State has no right to appeal in a criminal case, making Texas the only state that bans all prosecution appeals. This prohibition is viewed as a serious problem in the administration of justice for several reasons: (1) On occasion, defendants are released because of questionable legal rulings excluding what may be legally admissible evidence; (2) Legal issues that have been wrongly decided by trial courts nevertheless stand as precedent, albeit unbinding, for police, prosecutors, and courts; and (3) Trial judges may have a tendency to resolve doubtful legal questions in favor of the defendant because such a ruling cannot harm the judge's reversal rate.

  6. See e.g., United States v. Humphries, 636 F.2d 1172 (9^th Cir. 1980)(reversing the district court's order that "all evidence concerning the identity and participation of defendant is suppressed"); United States v. Flores, 538 F.2d 939 (2^nd Cir. 1976)(reversing pretrial ruling which barred government from introducing prior bad act evidence against the defendant); United States v. Valencia, 826 F.2d 169(2nd Cir. 1987)(affirming pretrial order excluding out-of-court statements made by a defendant's counsel in effort to secure bail for client. ); United States v. Helstoski, 576 F.2d 511 (3d Cir. 1978)(affirming trial court's exclusion of legislative materials and legislative correspondences to prove allegations of indictment); United States v. Fatico, 579 F.2d 707 (2nd Cir. 1978)(reversing trial court's order excluding evidence supplied by unidentified Mafia member that defendants were connected to organized crime for use in sentencing hearing).

  7. Responding to the defendant's contention that the government's appeal was jurisdictionally barred because its pretrial motion was called a "Motion to Determine the Admissibility of Evidence," which was not within the express language of § 3731, the court in Humphries stated:

  
  
  

  To hold that the order here is not appealable under § 3731 because a denial of a "Motion to Determine the Admissibility of Evidence" is not a "decision ... suppressing or excluding evidence" is to focus on the title of the Government's motion rather than the effect of the district court's order. Such an approach flies in the face of the intent of Congress and is contrary to consistent judicial authority. Section 3731 must be construed broadly; a Government appeal should not be rejected on a hypertechnical jurisdictional ground. Thus, we refuse to limit the Government's right to appeal under § 3731 solely because of the title of its motion. Instead, we "focus on the effect of the ruling sought to be appealed."

  
  
  

  Humphries, 636 F.2d at 1175; see also United States v. Horwitz, 622 F. 2d 1101 (2^nd Cir. 1980)(noting jurisdiction under § 3731 despite conditional nature of district court's ruling--that testimony of government's immunized witness would be suppressed unless two defense witnesses were also immunized; stating that "it would be an exercise in pure formalism to hold that the district court's order is not appealable").

  8. Numerous witnesses at the legislative hearings testified to this fact. See e.g., the testimony at the Hearings on Tex. S.B. 762 Before the Senate Comm. On Crim. Just., 70^th Leg., R.S. (Apr. 21, 1987; "9:30 a.m." tape)(Rusty Hardin: "This is modeled after the model statute and the federal statute with a couple of minor changes"; Alan Levy: "I would point out to the committee that this legislation is fairly consistent with legislation throughout the United States . . . This isn't a novel or unusual concept we are talking about"; Chris Marshall: "This . . . basically follows the federal statute"; Knox Fitzpatrick: "This pretty much follows the acts that are in existence in the 49 other states and the federal act and the model act.").

  Harris County Assistant District Attorney Rusty Hardin's testimony in favor of Senate Bill 762, before the Senate Committee on Criminal Justice made clear that the bill was intended to encompass more than motions to suppress illegally obtained evidence. Mr. Hardin illustrated the purpose of Senate Bill 762 by discussing a case in which a capital murder charge was dismissed because of what the State thought was an erroneous trial court ruling. The pretrial evidentiary ruling described did not relate to evidence that was in any way "illegally obtained" but to former testimony:

  Mr. Hardin: Most recently in Houston, a capital murder case had to be dismissed because of what we believe and I think what most lawyers believe was a clearly erroneous trial court ruling but it couldn't be appealed because it was pretrial. . . . In the Houston case--the ruling was that a transcript-that was a celebrated capital case in which the co-defendant, a woman, had received a life sentence and this time on a reversal did not want to testify against the defendant who was charged again-being tried again for the death penalty. The State wanted to use her testimony from the last trial. There was a long hearing about whether it would be allowed and the trial judge ultimately found . . .

  Senator Lyon: Was she married to the . . .

  Mr. Hardin: She was his girlfriend, and it was a contract killing and the State wanted to use her testimony from the first trial which had been used to convict him since she would no longer testify. The trial judge, pretrial, says "no, you can't do it."

  Senator Lyon: How could she testify if she was . . .

  Mr. Hardin: Well, she was serving a life sentence. We just had no way to compel her, I mean, she could have been found in contempt but it was a problem with no remedy. In other words, she was willing to continue in the Texas Department of Corrections. She's still there. So there was just no way to force her, no practical way. But the effect was . . . as a result of not having that evidence the case had to be dismissed, in a very brutal killing.

  Hearings on Tex. S.B. 762 Before the Senate Comm. On Crim. Just., 70^th Leg., R.S. (Apr. 21, 1987; "9:30 a.m." tape). Mr. Hardin went on to describe the State's right generally:

  It is important to note that these are simply rulings that occur pretrial with one or two exceptions. These do not have anything to do with appealing a "not guilty" verdict or any factual findings of a trial judge. . . . Basically, it gives the State one-half the right to appeal. If a judge makes a ruling of law prior to trial then, against the State, the State could take that up pretrial.

  Id. (emphasis added).

  9. Cathleen C. Herasimchuk, Criminal Justice and the State's Right to Appeal, 24 Hou. Law. (Jan.-Feb. 1987). This article, published before the 1987 Legislature met and enacted art. 44.01, contained the "proposed legislation," along with an explanation of the proposed statutory terms, an historical analysis of the State's right to appeal in other jurisdictions, and arguments both for and against enacting a State's right to appeal in Texas.

  10. Wis. Code Crim. Proc. § 974.05(1)(d)(2).

  11. In State v. Eichman, 456 N.W.2d 143 (Wis. 1990), the Wisconsin Supreme Court agreed that there is a distinction between "suppressing" evidence and "excluding" evidence, as the former generally bars admission of evidence at trial as a result of governmental misconduct, such as a constitutional violation, and the latter generally involves only a violation of the rules of evidence, but disagreed that the distinction between suppressing evidence and excluding evidence prohibits the State from appealing such pretrial rulings. 456 N.W.2d at 147. See also State v. Mendoza, 291 N.W.2d 478, 483 (Wis. 1980)(the use of the word evidence in § 974.05(1)(d)(2) "means something which is legally submitted to a competent tribunal as a means of ascertaining the truth of any relevant fact").

  12. See Ark. Crim. P. R. 15.7 (state may appeal order suppressing a confession or admission or other evidence); Alaska Stat. 22.07.020 (state may appeal any order limited only by double jeopardy); Ariz. Rev. Stat. 13-4032 (state may appeal order granting a motion to suppress use of testimony); Ark. R.A.P. Crim. 3 (state may appeal order which grants motion to suppress seized evidence, confessions, or allows evidence of victim's prior sexual conduct); Cal. Pen. Code § 1238 (state may appeal order suppressing property or evidence if case is dismissed); Colo. Rev. Stat. 16-12-102 (state may appeal motion to suppress evidence, extrajudicial confession or admission); Conn. Gen. Stat. 54-96 (state may appeal rulings upon all questions of law upon permission); 10 Del. Code Ann. 9902 (state may appeal any order suppressing or excluding substantial and material evidence "essential to the case"); D. C. Code Ann. 23-104 (state may appeal an order which suppresses evidence or otherwise denies the prosecutor the use of evidence); Fla. Stat. 924.07 & 924.071 (state may appeal an order or ruling suppressing evidence or evidence in limine at trial); Ga. Code Ann. 5-7-1 (state may appeal order excluding evidence illegally seized or alcohol/drug test results); Haw. Rev. Stat. 641-13 (state may appeal ordering granting a motion for suppression of evidence, including a confession or admission); Idaho A.R. 11 (state may appeal order granting motion to suppress); Ill. S.Ct. R. 604 (state may appeal order suppressing evidence); Ind. Code Ann. 35-38-4-2 (state may appeal an order granting a motion to suppress evidence if ultimate effect is to preclude further prosecution); Iowa Code 814.5 (state may appeal order suppressing or admitting evidence); Kan. Stat. Ann. 22-3603 (state may appeal order suppressing evidence, a confession or admission); Ky. Rev. Stat. 22A.020 (state may appeal adverse decision or ruling); La. C. Crim. P. art. 912 (state may appeal adverse judgments or rulings); Me. Rev. Stat. 2115-A (state may appeal order suppressing evidence, including, but not limited to, physical or identification evidence or evidence of a confession or admission); Md. Code Ann. 12-302 (state may appeal decision that excludes evidence offered by the state alleged to have been seized in violation of constitution); Mass. Ann. Laws ch. 278, 28E (state may appeal motion to suppress evidence); Mich. Comp. Laws 770.12 (state may appeal order appealable by law or rule, including decision concerning admission of evidence); Minn. R. Crim. Proc. 28.04 (state may appeal any pretrial order of court); Miss. Code Ann. 99-35-103 (state may file post-trial appeal on any question of law; no retrial permitted); Mo. Rev. Stat. 547.200 (state may appeal order suppressing evidence or a confession or admission); Mont. Code Ann. 46-20-103 (state may appeal order suppressing evidence or a confession or admission); Neb. Rev. Stat. 29-824 (state may appeal order granting a motion to suppress evidence); Nev. Rev. Stat. Ann. 177.015 (state may appeal order granting or denying a motion to suppress); N.H. Rev. Stat. Ann. 606:10 (state may appeal order suppressing any evidence); N.J. Court Rule 2:3-1 (state may appeal in accordance with search warrants; interlocutory appeals); N.M. Stat. Ann. 39-3-3 (state may appeal order suppressing or excluding evidence); N.Y. CPL 450.20 (state may appeal an order suppressing evidence); N.C. Gen. Stat. 15A-1445 (state may appeal an order suppressing evidence); N.D. Cent. Code 29-28-07 (state may appeal order suppressing evidence, confession, or admission); Ohio Rev. Code 2945.67 & Crim. R. 12 (state may appeal order granting motion to suppress evidence, including statements and identification testimony on ground it was illegally obtained); 22 Okla. Stat. 1089.1 (state may appeal adverse ruling or order granting motion to suppress evidence); Or. Rev. Stat. 138.060 (state may appeal order suppressing evidence); Pa. R.A.P. 311 (state may appeal order that will terminate or substantially handicap prosecution); R.I. Gen Laws 9-24-32 (state may appeal any finding, ruling decision or order pretrial); S.C. Code Ann. 14-3-330 (state may appeal order affecting a substantial right when order determines action); S.D. Cod. Laws 23A-32-5 (state may appeal order suppressing or excluding evidence); Tenn. App. Proc. R. 3, 9, 10 (state may appeal orders if lower court has departed from the law, or if necessary); Utah Code Ann. 77-18a-1 (state may appeal order granting motion to suppress when court determines appeal is in interest of justice); 13 Vt. Stat. Ann. § 7403 (state may appeal motion to suppress evidence); Va. Code Ann. § 19.2-398 (state may appeal order excluding evidence obtained in violation of specified constitutional provisions); Wash. R.A.P. 2.2 (state may appeal pretrial motion suppressing evidence if practical effect is to terminate action); W.Va. Code § 58-5-30 (state may not appeal a motion to suppress evidence, although it may appeal dismissal of indictment); Wisc. Stat. § 974.05 (state may appeal motion to suppress evidence, confession, or admission); Wyo. Stat. § 7-12-102 (state may challenge ruling suppression of evidence with bill of exceptions and writ of certiorari).

  13. These states include: Alabama, Arizona, Colorado, Delaware, Florida, Illinois, Kansas, Maine, Massachusetts, New Hampshire, New York, North Carolina, Oregon, South Dakota, Utah, Vermont, Washington, and Wisconsin.

  14. These states include: Alaska, Connecticut, the District of Columbia, Kentucky, Louisiana, Michigan, Minnesota, New Jersey, New Mexico, Pennsylvania, Rhode Island, South Carolina, and Tennessee.

  15. These states include: Arkansas, Georgia, and Maryland. Hawaii permits the pretrial state appeal of a motion to suppress based upon the violation of any statute or administrative rule as well as constitutional violations. In Indiana, the defendant may only bring a pretrial "motion to suppress illegally obtained evidence," and the state may appeal any adverse ruling of the defendant's motion.

  16. These states include: Missouri, Montana, Nevada, and North Dakota. These states, like Texas, have statutory provisions which permit an appeal from a "motion to suppress evidence, "but the courts have construed that language narrowly. See, e.g., State v. Holzschuh, 670 S.W.2d 184 (Mo. App. 1984); State v. Shade, 867 P.2d 393 (Nev. 1994) (dismissing appeal on basis that Black's Law Dictionary defines a motion to suppress as a motion to exclude evidence secured illegally, in violation of 4^th, 5^th or 6^th amendments); State v. Strizich, 952 P.2d 1365 (Mont. 1997) (following Holzschuh); State v. Counts, 472 N.W.2d 756 (N.D. 1991).

  17. O.R.C. § 2945.67; Ohio Crim. R. 12.

  18. Of course, if the defendant's motion to suppress was not really a "motion to suppress evidence" for purposes of article 44.01, it was equally not a "motion to suppress evidence" for purposes of being considered at a pretrial hearing under article 28.01.

  19. See Tex. Gov't Code, § 311.023; see also Lane v. State, 933 S.W.2d 504, 514 (Tex. Crim. App. 1996). In Lane, this Court set out a non-exclusive list of factors which courts should use to construe an ambiguous statute. These factors include those explicitly set out in the Government Code provision:

  • object sought to be attained;
  • circumstances under which the statute was enacted;
  • legislative history;
  • common law or former statutory provisions, including laws on the same or similar subjects;
  • consequences of a particular construction;
  • administrative construction of the statute; and
  • title (caption), preamble, and emergency provision.

  20. One is reminded of Alice in Wonderland: "When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean- neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master - that's all." Lewis Carroll, Alice's Adventures in Wonderland, ch. 6 (1865). When the Legislature chose to use the same phrase, "motion to suppress evidence," in both the statute dealing with pretrial motions and the statute dealing with pretrial appeals of pretrial motions, one would normally conclude that this phrase had the same meaning in both statutes.

  21. That is, as long as the State fulfills the other requirements of art. 44.01(a)(5).

  22. Marin v. State, 891 S.W.2d 267, 271-272 (Tex. Crim. App. 1994);

  23. Lewis v. State, 58 Tex. Crim. 351, 362, 127 S.W. 808, 812 (1910) (emphasis added) (collecting English and American cases).

  24. 574 S.W.2d 147, 150 (Tex. Crim. App. 1978)( Dally, J., concurring).

  25. In Zani, as in this case, the defendant filed a pretrial "motion to suppress evidence" under article 28.01, §1(6). In that case, as in this one, the trial court heard and ruled upon the motion based upon both constitutional and evidentiary considerations.