In his fourth point of error, appellant challenges the admission of certain testimony at a pretrial suppression hearing. Specifically, appellant complains that Officer Brunson should not have been permitted to testify about statements that were made to another officer by one of the victim's family members. Appellant alleges that the testimony is inadmissible hearsay that should have been excluded pursuant to McVickers v. State, 874 S.W.2d 662 (Tex. Crim. App. 1993). The State argues that McVickers has no application in the instant appeal because McVickers is distinguishable. In response to these arguments, the majority holds that McVickers is no longer good law and overrules the point of error. Granados v. State, No. 73, 525, slip op. at 14 (Tex. Crim. App. May____, 2002) (hereinafter cited as "Majority Op."). This disposition is incorrect on the merits, and it reaches simultaneously too far by addressing arguments the parties themselves did not advance and not far enough by failing to address the far-reaching ramifications of today's decision. Accordingly, I dissent.

Approximately a decade ago, this Court held in McVickers that the rules of evidence apply at a hearing on a motion to suppress. 874 S.W.2d at 666. As the majority notes, our opinion in McVickers relied on former Texas Rule of Criminal Evidence 1101(d)(4). ⁽¹⁾ The majority also correctly notes that Rule 1101(d)(4) was not incorporated into the Texas Rules of Evidence jointly promulgated in 1997. It then looks to the text of Rule 104(a), which provides:

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

From this, the majority concludes that the language of the Rules of Evidence "indicate" that the rules do not apply to suppression hearings. Majority Op. at 14.

Any subsequent dicta to the contrary notwithstanding, the majority's conclusion in this regard overrules McVickers. The majority corrects my "misconception" that it overrules McVickers by stating that, "[w]hile it is true that McVickers is no longer the law, that is simply because the rule upon which it is based-Rule1101(d)(4)-no longer exists." Majority Op. at 14. I stand uncorrected. It was our holding in McVickers, and not the Rules of Evidence by virtue of a force outside of our holding, that made the rules applicable to suppression hearings. If McVickers is no longer the law, McVickers has been overruled.

Using the instant appeal as a forum in which to overrule McVickers is a particularly unfortunate choice. This is a non-discretionary appeal from a complex capital murder trial in which counsel for appellant raised seven separate points of error, each of which we as a "first-level appellate court" were bound to address. See Tex. Code Crim. Proc. art. 37.071 § 2(h). ⁽²⁾ More importantly, however, neither party to this dispute argued that McVickers should be excised from our books. Here, one district attorney from one county argued for relief in this particular case under the law of McVickers. Yet the relief granted by the majority extends well beyond that which was requested by the State or necessary to the disposition of appellant's point of error. ⁽³⁾

This Court has recognized that under the doctrine of stare decisis, we generally adhere to past precedent because doing so promotes judicial efficiency and consistency, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. See, e.g., Jordan v. State, 54 S.W.3d 783, 786 (Tex. Crim. App. 2001). What remains of the actual or perceived integrity of the judicial process if this Court overrules precedent in the absence of a request for it to do so? What measure of reliance can a party place on our decisions if the decisions are valid through trial and appeal and are then, to the surprise of both parties, summarily removed from the annals of Texas law? And why shouldn't we take notice of the fact that both sides of this dispute relied on McVickers as the law of Texas? Such reliance has, on occasion, been taken into account by this Court. In Busby v. State, 990 S.W.2d 263 (Tex. Crim. App. 1999), the appellant sought a reexamination of our precedent interpreting Article 31.04 of the Code of Criminal Procedure. When the majority in Busby declined to revisit that precedent, it explained:

Article 31.04 has remained unchanged since Cockrum [v. State, 758 S.W.2d 577, 582-83 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1072 (1989)] was decided in 1988 and was reaffirmed … in 1994. Moreover, the State may well have relied upon our interpretation in Cockrum in determining how to proceed on the venue motion. Hence, even if we believed that appellant's interpretation necessarily followed from the language in Article 31.04 (which we do not), we would find that the interests underlying the doctrine of stare decisis are weighty enough, in the present case, to adhere to our decision in Cockrum

990 S.W.2d at 267. These "weighty" interests do not always surface, however. Compare, for instance, the passage quoted above with the following excerpt from Jordan:

While accused persons who have relied on our prior cases may lose their ability to have a trial court decide their claims before revocation, they still have an avenue after revocation in which their claims may be heard. Finally, the administration of justice will benefit from streamlining the process and avoiding confusion that would be engendered by the old rule. Hence, our decision will apply retroactively.

Jordan, 54 S.W.2d at 78. ⁽⁴⁾

Apparently, then, the interests in guiding the State to properly craft a motion to transfer venue would be weightier than those of an accused who stands to have community supervision revoked because, once incarcerated, the accused can file a writ of habeas corpus and, in addition, take comfort in the streamlined process that got him there. I can find no justification for such a disparity. Nor can I understand why the interests of the parties before this Court, who both relied on McVickers at trial and on appeal, simply do not factor into the majority's decision.

The majority responds to this complaint by writing, "We are a first-level appellate court in death penalty cases. We can affirm on any basis, whether raised by the parties or not." I must here register my strong disagreement with the notion that what we can do as an appellate court is what we should do. The authority that this Court has been given by our statutes and by the Texas Constitution is one that ought to be wielded not aggressively, but gently, carefully and with an eye to this Court's role as the caretaker of Texas's criminal laws. While I understand that we owe deference to the trial court's discretionary rulings, this deference is something altogether dissimilar to the approach taken by the majority in this case: not only deferring to the trial court's ruling, but rewriting the law on which the ruling is based in order to facilitate that deference. I think our discretion as a "first-level appellate court" is broad, but it is not limitless, and I would not rewrite the law in this manner.

Rather, I would uphold McVickers and apply the Rules of Evidence to suppression hearings. In determining that the Rules of Evidence do not apply to suppression hearings, the majority affords dispositive weight to the fact that when the rules were jointly promulgated in 1997, Rule 1101(d)(4) was not incorporated. Majority Op. at 13-14. From this the majority concludes that the law upon which McVickers was based no longer exists. Id. at 14. Yet Rule 1101(d)(4) has been absent from the rules since 1997. By my watch, it is now 2002. In those five or so years, no party, including the parties before the Court today, has argued that the Rules of Evidence do not apply to suppression hearings. Rather than considering the meaningful role that the Rules of Evidence play in the suppression hearing context, the majority looks to Rule 104(a) and holds that "the language of the current rules indicates that the rules of evidence (except privileges) no longer apply to suppression hearings." Majority Op. at 14. I do not agree that this is the import of the rules' language. ⁽⁵⁾

Rule 104(a) provides that the trial court is not bound by the Rules of Evidence, except those with respect to privileges, on "[p]reliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence." These questions smack of legal issues, where the reliability of the evidence itself is not what determines the outcome. In contrast to the majority, I would not apply Rule 104(a) to suppression hearings, in which the determinations are fact-bound and reliability is of paramount importance. As this Court explicitly and implicitly recognized when it broadened the State's right to appeal an adverse pretrial ruling on a motion to suppress or exclude evidence, a motion to suppress can make or break a case. See Medrano v. State, No. 527-99, slip op. at 4-5, 2002 Tex. Crim. App. LEXIS 23 at *7 (Tex. Crim. App. February 6, 2002) ("the purpose of [Article 44.01] is to permit the pretrial appeal of erroneous legal rulings which eviscerate the State's ability to prove its case"). If the State's interests in appealing such an adverse pretrial ruling were sufficiently weighty to override the controlling precedent of Roberts v. State, 940 S.W.2d 655 (Tex. Crim. App. 1996), as well as three legislative reenactments of the controlling statute, then surely those considerations militate in favor of allowing the accused some measure of reliability in determining which evidence may be offered against him at such a crucial stage. The majority, however, chooses to do away the safeguards that the Rules of Evidence provide at a suppression hearing, thereby drastically altering the landscape of future suppression hearings, and perhaps, future trials. Because the dangers inherent in the majority's opinion seem to be unanticipated by the majority itself, I detail them here.

First, without the evidentiary scaffolding provided by the Rules, all evidence is admissible, all evidence is relevant and the discretion wielded by the trial court is discretion incapable of abuse. Although the Code of Criminal Procedure currently permits a suppression hearing to be held on affidavits, affidavits are sworn statements, subject to hearsay objections, submitted to the court under penalty of perjury. Tex. Code Crim. Proc. art. 28.01 § 1(6) (Vernon 1989); Tex. Penal Code § 37.02 (Vernon 1994); State v. Eversole, 889 S.W.2d 418, 425 (Tex. App.-Houston [14th Dist] 1994, pet. ref'd). Under the majority's reading of the law, there is now nothing to prevent a trial court from deciding the merits of a suppression motion by relying exclusively on an unsworn police report or lab report. No longer must an expert witness at a suppression hearing be qualified. Tex. R. Evid. 702. Nor must the State continue to burden itself by marshaling witnesses who have personal knowledge of the events about which they are testifying. Tex. R. Evid. 602. Taking the majority's holding to its logical extreme, if the trial judge wished to save time, he could simply call himself as a witness and testify in support of the existence of probable cause by reading a newspaper account of the arrest into the record. Tex. R. Evid. 605. ⁽⁶⁾

Certainly common sense would counsel against relying on an unqualified expert witnesses, or a witness without personal knowledge, or against the trial judge taking the stand at a suppression hearing; but such common sense ideas are rules only in the Rules of Evidence. Therefore, they will no longer exist as such in the context of suppression hearings. Majority Op. at 14. Additionally, because removing the rules from suppression hearings unfetters the trial court's discretion altogether, the exercise of that discretion will evade appellate review. Now, so long as there is some evidence in favor of the ruling on the motion to suppress, regardless of how unreliable that evidence might be, the trial judge cannot abuse his discretion. This broad reading of the Rules of Evidence may in large part read the Constitution out of a criminal trial by permitting the State to offer evidence against the defendant that was gathered based on non-existent consent or probable cause.

Finally, the majority opinion will change the world of negotiated pleas as we know it. The effect of our law was formerly that appeal could not be taken from a plea of guilty or nolo contendre except as to jurisdictional defects. Helms v. State, 484 S.W.2d 925 (Tex. Crim. App. 1972). The "Helms rule" had the corollary effect of barring the appeal of any pretrial ruling if the defendant later entered a plea of guilty or nolo contendre. See Kevin Yeary, Appeals from Pleas of Guilty and Nolo Contendre: History and Procedural Considerations, 33 St. Mary's L. J. 405, 411 (2002) (hereinafter "Yeary"). In 1977, however, the Legislature effectively abrogated the Helms rule with respect to non-negotiated pleas by passing former Article 44.02 of the Texas Code of Criminal Procedure. Act of June 10, 1977, 65^th Leg., R.S., ch. 351, 44.02, 1977 Tex. Gen. Laws 940; Yeary at 412. Former Article 44.02 granted a defendant who had entered a plea of guilty or nolo contendre a limited right of appeal. Part of this right was the right to appeal "those matters which have been raised by written motion filed prior to trial." Id.

This legislative amendment was eventually incorporated into Texas Rule of Appellate Procedure 25.2, which provides that a plea bargaining defendant who has been sentenced within the prosecutor's recommendation may appeal only if the notice of appeal specifies, inter alia, that the appeal is for a jurisdictional defect, that the trial court has given permission to appeal, or that the appeal is taken from a matter raised in a written motion and ruled upon prior to trial. Tex. R. App. P. 25.2(b)(3). Because the effect of the majority's opinion is to thoroughly hamstring appellate review of a trial court's ruling on a suppression motion, there is no longer any real incentive for a defendant, whose primary dispute is with the legality of the evidence offered against him, to agree to a plea bargain. A defense attorney will henceforth have essentially no choice but to hail the State, the trial judge, the defendant and a jury into the courtroom for a full trial in the hopes of litigating issues related to the motion to suppress under the protective net of the Rules of Evidence. He will, after all, have nothing to lose. Indeed, he stands only to gain from a full trial: if nothing else, it will permit him to build a better trial record. Without so much as mentioning it, then, the majority has readjusted the incentives to enter a negotiated plea bargain so that they are strangely similar to the incentives under the Helms rule. As this Court noted upon the passage of former Article 44.02 of the Code of Criminal Procedure:

Such a procedure [a limited right of appeal on a negotiated plea] may be expected to conserve judicial resources by encouraging guilty pleas in cases where the only contested issue between the parties is some matter such as the lawfulness of a search, voluntariness of a confession, competency to stand trial, sufficiency of the indictment, or other matter that may be raised by written motion filed prior to trial.

Ferguson, 571 S.W.2d 908, 910 (Tex. Crim. App. 1978). And so it was until today's decision by the majority.

In conclusion, to the extent the majority applies McVickers, it does so incorrectly. Immediately following its statement that the disputed testimony here was admitted "to explain the basis for subsequent conduct of Corporal Brunson and the other officers," the majority goes on to "differentiate" McVickers by declaring that "[i]n McVickers, on the other hand, the statement was offered to show the basis of someone else's conduct." Majority Op. at 18. If Corporal Brunson was explaining the subsequent conduct of other officers, even if he was simultaneously explaining the basis for his conduct, his testimony as to the basis for the other officers' conduct constitutes hearsay. This case is no different from McVickers. In McVickers, an officer who ultimately arrested the defendant testified as to another officer's basis for initially stopping the defendant. McVickers, 874 S.W.2d at 663. Here, Corporal Brunson testified as to the facts that Officer Vasquez believed constituted probable cause to enter the victim's residence. McVickers should have operated to exclude Brunson's testimony. The admission of the testimony was, therefore, error. Moreover, appellant was harmed. The erroneous admission of Brunson's testimony legitimized the ensuing warrantless search. The admission of the fruits of the search, in turn, had a substantial and injurious effect in determining the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (defendant's "substantial rights" are affected for purposes of harmless error analysis under Texas Rule of Appellate Procedure 44.2(b) "when the error ha[s] a substantial and injurious effect or influence in determining the jury's verdict"). I would vacate the trial court's judgment and remand the cause for a new trial. I dissent.

Filed May 8, 2002

Publish

1. All future references to "rules" are to the Texas Rules of Evidence.

2. All future references to "Articles" are to the Texas Code of Criminal Procedure.

3. The majority holds that the Rules of Evidence no longer apply at suppression hearings, but it also goes on to state that the instant appeal is distinguishable from McVickers. Majority Op. at 17-18. If this appeal is distinguishable, and each of the parties assumed McVickers's continuing validity, this hardly seems an appropriate opportunity to invalidate McVickers altogether.

4. See also Proctor v. State, 967 S.W.2d 840, 845 n.5 (Tex. Crim. App. 1998) ("[i]t is, of course, within the Court's power to limit the retroactive effect of a decision, but we rarely do so, especially in the absence of briefing, because there is a need to reward the party (in this case, the State) responsible for convincing the Court to overrule unsound precedent").

5. In this, I am mindful of Supreme Court precedent to the effect that "the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions …." United States v. Matlock, 415 U.S. 164, 173 (1974). Barring an interpretation of our evidentiary rules that offends the United States Constitution, however, this Court is free to outline the rules' parameters in the manner we see fit.

6. I do not allege through these examples that a trial judge could not see through the thin veneer of unreliable evidence. I am arguing simply that any evidentiary shortcut that the State or the trial court finds appropriate is now above reproach and, more importantly, beyond the reach of meaningful appellate review.