Texas motion to suppress — CCP Art. 38.23

Texas motion to suppress is governed by Code of Criminal Procedure Article 38.23. The rule defines the State's required steps, the defendant's rights at this stage, and the consequences of noncompliance. Below: the statutory text, the standard of practice in Collin, Dallas, Denton, and Tarrant Counties, and what a defendant should know before this stage.

The controlling statute

Texas Code of Criminal Procedure Article 38.23 is Texas's statutory exclusionary rule — among the broadest in the nation. Evidence obtained 'in violation of any provisions of the Constitution or laws' of Texas or the United States is inadmissible against the accused. Unlike the federal good-faith exception under United States v. Leon, Texas does not recognize a general good-faith exception (Art. 38.23(b) covers only narrow warrant-execution circumstances). Motions to suppress challenge searches, seizures, statements, identifications, and any evidence flowing from constitutional violations.

Classification & punishment range

Elements the State must prove

To convict on a Texas CCP Art. 38.23 charge, the State must prove every element beyond a reasonable doubt:

1. Written motion filed pretrial under Art. 28.01 or as soon as practicable
2. Identification of the specific evidence sought to be excluded
3. Articulation of the constitutional or statutory violation (4th, 5th, 6th Amendment; Art. 38.22/38.23)
4. Evidentiary hearing where the defense has the initial burden of production
5. State carries the ultimate burden of proving the search/seizure was lawful
6. Trial court issues findings of fact and conclusions of law if requested

Defense strategies

L and L Law Group, PLLC develops the following defense strategies on every Motion to Suppress case:

• Attack the warrant affidavit for lack of probable cause or material falsehoods under Franks v. Delaware
• Challenge warrantless searches as outside any recognized exception (consent, exigency, inventory, search incident to arrest, automobile, plain view)
• Suppress statements taken in violation of Miranda or Article 38.22 (warning + electronic recording for custodial interrogation)
• Move to exclude identifications under Manson v. Brathwaite and Art. 38.20 (photo array protocols)
• Invoke fruit-of-the-poisonous-tree to exclude downstream evidence
• Request a jury instruction under Art. 38.23(a) if a fact issue remains for the jury

Enhancements & collateral consequences

A successful suppression motion can collapse the State's case. Article 38.23 is broader than the federal exclusionary rule — it has no good-faith exception (with very limited Art. 38.23(b) exception for officers acting in objectively reasonable reliance on a warrant). Suppression rulings are interlocutorily appealable by the State under Art. 44.01(a)(5). Article 38.23(a) also requires a jury instruction to disregard illegally obtained evidence if a fact issue is raised at trial.