IN THE
TENTH COURT OF APPEALS
No. 10-00-020-CR
KEVIN WAYNE DAVY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Criminal Court No. 1
Dallas County, Texas
Trial Court # MB98-32671-A
CONCURRING OPINION
The issue Davy wants us to address in this case is how we review the jury’s determination of the admissibility of evidence when an Article 38.23 instruction to disregard illegally obtained evidence has been given. Davy’s issue is worded as follows:
The jury erred when it found beyond a reasonable doubt under the totality of the circumstances that the state had proved reasonable suspicion to detain appellant for a traffic violation and failed to acquit him.
Davy contends that the standard of review of a suppression issue decided by a jury is an issue of first impression. Davy relies on Johnson, a Dallas Court of Appeals decision, to raise the issue as an error of the jury, rather than of the trial court, in the admission and consideration of evidence. Johnson v. State, 885 S.W.2d 578, 581 (Tex. App.—Dallas 1994, no pet.). Davy states that he “...does not attack the trial court’s ruling on the suppression issue because the jury’s finding of reasonable suspicion [of a] traffic [offense] supplanted the trial court’s ruling. This court reviews only the jury decision because it was the last determination of reasonable suspicion. [citing Johnson]” Appellant’s Brief at page 30.
Four months after Davy filed his brief, the Court of Criminal Appeals flatly stated the holding in Johnson cannot be a correct general rule. Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000). The Court stated: “To hold that a jury’s verdict returned under the statute’s second sentence supplants the trial court’s ruling made under the statute’s first sentence would render unreviewable the court’s decisions on questions of law. For this reason alone, the holding in Johnson cannot be a correct, general rule.” Id. The Court went on: “The narrower holding of Johnson, that the jury’s implied finding of fact supplants the trial court’s finding of fact, is one we do not accept. The reasons have been developed in cases that deal with a related issue of evidence: confessions.” Id.
The Court held:
When a trial court has denied a motion to suppress evidence, the verdict of guilty from a jury that was charged to disregard illegally obtained evidence does not prevent the defendant from appealing the court’s ruling. This was the procedure followed in another case that the court of appeals cited to support the opposite holding. It should be followed in this case.
Id. at 253. Thus, the proper issue is not about what the jury did. The jury cannot err. The jury’s answer may not be supported by sufficient evidence, but it is the trial court that errs when it admits evidence obtained in violation of law. Davy must attack the trial court’s determination of the admissibility of the evidence, not the jury’s implied finding. See Peterson v. State, 727 S.W.2d 125, 126 (Tex. App.—San Antonio, no pet.). The procedure used in Peterson of reviewing the trial court’s ruling on the motion to suppress, rather than reviewing the jury decision, was cited with approval in Pierce. Pierce, 32 S.W.3d at 253, fn 15.
Davy specifically states that he is not attacking the trial court’s evidentiary ruling refusing to suppress the evidence. Because Davy complains only about the implied finding of the jury, issue one presents nothing for our review.
Accordingly, I concur in the result, but not the rationale of either the lead or concurring opinions on the resolution of issue one. I join the remainder of the lead opinion.
TOM GRAY
Justice
Concurring opinion delivered and filed December 28, 2001
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