Article 38.23 Suppression in Texas — When and How
Texas Code of Criminal Procedure Article 38.23 codifies a state-law exclusionary rule that the Court of Criminal Appeals has called the broadest in the country. When police gather evidence in violation of state penal laws or the federal or state constitutions, Article 38.23 requires its exclusion at trial. This article explains when Article 38.23 mandates suppression and when a Texas defendant earns a 38.23 jury instruction.
What Article 38.23 says
Article 38.23(a) of the Texas Code of Criminal Procedure provides that no evidence obtained in violation of any provisions of the Constitution or laws of the State of Texas, or the United States, shall be admitted in evidence against the accused on the trial of any criminal case.
The Court of Criminal Appeals has held that the Texas statutory exclusionary rule is broader than the federal Fourth Amendment exclusionary rule. It reaches violations of Texas penal laws related to evidence-gathering as well as federal and state constitutional violations.
When does Article 38.23 require suppression
Article 38.23 applies when an officer (or, in some contexts, a private actor) obtains evidence in violation of a constitutional or statutory provision that is itself directed at protecting suspects from overzealous evidence-gathering. As the Court of Criminal Appeals explained in Wilson v. State, the underlying purpose of both the federal exclusionary rule and Article 38.23 is the same — to protect a suspect's privacy, property, and liberty rights against overzealous law enforcement.
The Texas exclusionary rule does not, however, reach every statutory violation. The Court has held that Article 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule or to the prevention of the illegal procurement of evidence of crime.
When does the defendant earn a 38.23 jury instruction
Article 38.23 is unusual in another respect: it can be litigated either before the trial judge alone (a motion to suppress) or before the jury (a 38.23 instruction). The Court of Criminal Appeals laid out the test in Madden v. State.
A defendant earns an Article 38.23(a) jury instruction only when three requirements are met. First, the evidence heard by the jury must raise a genuine issue of historical fact. Second, the evidence on that fact must be affirmatively contested by some affirmative evidence, not just by cross-examination questions. Third, the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.
If there is no factual dispute, the legality of the conduct is determined by the trial judge alone as a question of law. The jury cannot be asked to apply legal terms of art such as reasonable suspicion or probable cause — the jury decides historical facts, the judge decides the law.
How a defense attorney uses Article 38.23
A Texas criminal defense attorney evaluates every case for an Article 38.23 issue at the discovery stage. The Michael Morton Act discovery demand under Article 39.14 typically produces the body-cam, in-car video, lab reports, and patrol-supervisor logs that reveal whether a statutory or constitutional violation occurred.
Where the State concedes the operative facts, an Article 38.23 issue is litigated before the trial judge at a pretrial suppression hearing. Where the facts are contested, the issue can be preserved for both pretrial litigation and a 38.23 jury instruction, doubling the chances of a favorable resolution.
Authority cited
- "the Texas Legislature enacted a state exclusionary rule that was based upon, but broader than, the federal exclusionary rule" — Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010). Article 38.23 is broader than the federal Fourth Amendment exclusionary rule and reaches violations of Texas penal laws related to evidence-gathering, not just constitutional violations.
- "There are three requirements that a defendant must meet before he is entitled to the submission of a jury instruction under Article 38.23(a)" — Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). A defendant earns an Article 38.23 jury instruction only when (1) the evidence raises a fact issue, (2) the fact is affirmatively contested, and (3) the contested fact is material to the lawfulness of the conduct used to obtain the evidence.
Statutes referenced
- Art. 38.23 — Texas Code of Criminal Procedure (read statute).
- Art. 39.14 (Michael Morton Act) — Texas Code of Criminal Procedure (read statute).
Frequently asked questions
Is Article 38.23 broader than the federal Fourth Amendment exclusionary rule?
Does Article 38.23 have a good-faith exception?
Can a private citizen's illegal conduct trigger Article 38.23?
What does a defendant have to show to get an Article 38.23 jury instruction?
Does an Article 38.23 issue have to be raised before trial?
Related on L and L Law Group
- Motion to Suppress — Texas pillar guide
- DWI Defense
- Drug Crimes Defense
- Federal Charges Defense
- Texas Criminal Defense Process — Guidebook
Not legal advice. This article is general information about Texas criminal law and procedure. Every case turns on its specific facts. If you face a criminal charge, retain counsel licensed in Texas before any contact with law enforcement, prosecutors, or magistrates. Call (972) 370-5060 for a free consultation with L and L Law Group, PLLC.