IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1753-08
ROSS LAYTON FORD, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
FANNIN COUNTY
COCHRAN , J., delivered the opinion of the Court in which PRICE, WOMACK ,
JOHNSON and HOLCOMB, JJ., joined. KELLER , P.J., KEASLER and HERVEY , JJ., concurred
in the result. PRICE, J., filed a concurring opinion in which JOHNSON , J., joined. MEYERS,
J., filed a dissenting opinion.
OPINION
This case concerns a pre-trial suppression hearing in which the trial court relied upon an
unsworn police offense report in ruling that the deputy had probable cause to arrest appellant.
After the trial court denied his motion to suppress, appellant pled guilty to possession of
marihuana. The court of appeals reversed, concluding that the trial court erred in considering the
unsworn report; therefore, the State failed to produce any evidence at the suppression hearing to
Ford 2
support appellant’s arrest.1 The State claims that (1) the court of appeals overturned the trial
court’s ruling based on an argument appellant did not make in the trial court; and (2) the trial
court may base its pre-trial suppression ruling on an unsworn police report.2 Although we hold
that appellant preserved this issue for appeal, we agree with the State’s second contention that, in
a pre-trial motion to suppress hearing, a trial court may rely upon any relevant, reliable, and
credible information, even though it may be unsworn hearsay. Therefore, we reverse the
judgment of the court of appeals.
I.
Appellant filed a pre-trial motion to suppress evidence concerning his arrest, alleging that
Deputy Halcomb searched his truck without a warrant or probable cause. Appellant testified at
the hearing for the limited purpose of showing that his arrest was made without a warrant. The
prosecutor did not cross-examine appellant, and he offered no live testimony. Instead, the
prosecutor offered only Deputy Halcomb’s unsigned, undated, and unsworn police report and
gave a verbal summary of its contents to support his position that the officer had probable cause
to search appellant’s truck. Appellant objected to the admission of the report (1) as a violation of
the hearsay rule; (2) because there was no sponsoring witness; and (3) as a violation of his right
to confrontation under the Sixth Amendment. The prosecutor responded that hearsay is
admissible in a suppression hearing; a suppression hearing deals only with preliminary issues;
1
Ford v. State, 268 S.W.3d 620, 625-26 (Tex. App.—Texarkana 2008).
2
The State’s two grounds for review are
(1) May a court of appeals decide an issue based on an argument that was not made in the
trial court? and
(2) May a trial court base its ruling on an unsworn police report offered into evidence at a
pre-trial suppression hearing?
Ford 3
and the confrontation right attaches only at trial.3 The trial judge overruled appellant’s objections
and admitted the report into evidence. Based upon the information in that report, he denied
appellant’s motion to suppress. The trial judge made findings of fact and conclusions of law, the
most important of which reads,
That the report submitted by Deputy Halcomb and entered into evidence is
credible, and the Court accepts as true the submission of his offense report
regarding his observations of the defendant and his conversations with the
defendant. 4
Following the denial of his motion to suppress, appellant pled guilty to possession of less than
two ounces of marihuana. The trial judge deferred the adjudication of his guilt and placed him
on community supervision for twelve months.
On appeal, appellant argued that the trial judge erred in denying his motion to suppress
because the arrest report was inadmissible. The court of appeals agreed, holding that in a
suppression hearing, Texas Code of Criminal Procedure article 28.01, § 1(6), permits the trial
court to determine the merits of a motion based on the motion itself, upon competing affidavits,
or upon live testimony.5 The court of appeals concluded that only those three specific methods
are permissible:
In this case, the State failed to accompany its proffered documentary evidence
with either some form of affidavit or live, sponsoring witness testimony. It is not
enough for the State to ignore the requirements of Article 28.01(6), and merely
3
The prosecutor also stated that she had tried to contact Deputy Halcomb, and she would
be “just fine” with having him testify if he arrived in time. The prosecutor noted that “the State
does expect Deputy Halcomb to be subpoenaed and would be at trial and will testify to what is in
his report,” but this hearing was, as the trial judge had stated, simply a hearing “to determine the
admissibility of the evidence” that the deputy would testify to at trial.
4
Ford, 268 S.W.3d at 623.
5
Id. at 625.
Ford 4
read a police report to the trial court and then tender it – unsigned, undated, and
unverified – as was done here.6
Because the arrest report was the only evidence the State offered to establish probable cause to
search appellant’s truck, the court of appeals concluded that there was no basis for the trial court
to deny Appellant’s motion to suppress.7
II.
First, we address the State’s contention that the court of appeals erred by addressing an
issue that was neither preserved in the trial court nor raised on appeal. Preservation of error is a
systemic requirement on appeal.8 If an issue has not been preserved for appeal, neither the court
of appeals nor this Court should address the merits of that issue.9 Ordinarily, a court of appeals
should review preservation of error on its own motion,10 but if it does not do so expressly, this
Court can and should do so when confronted with a preservation question.11
To properly preserve an issue concerning the admission of evidence for appeal, “a party’s
objection must inform the trial court why or on what basis the otherwise admissible evidence
should be excluded.”12 However, a party need not spout “magic words” or recite a specific
statute to make a valid objection. References to a rule, statute, or specific case help to clarify an
6
Id.
7
Id. at 625-26.
8
Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).
9
See id. (“Because we have held that preservation of error is a systemic requirement that
must be reviewed by the courts of appeals regardless of whether the issue is raised by the parties,
our inquiry into whether Haley properly preserved this alleged error is appropriate.”).
10
See Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997).
11
Id.
12
Cohn v. State, 849 S.W.2d 817, 821 (Tex. Crim. App. 1993) (Campbell, J., concurring).
Ford 5
objection that might otherwise be obscure, but an objection is not defective merely because it
does not cite a rule, statute, or specific case.13 As this Court stated in Lankston v. State,14
Straightforward communication in plain English will always suffice. . . . [A]ll a
party has to do to avoid the forfeiture of a complaint on appeal is to let the trial
judge know what he wants, why he thinks himself entitled to it, and to do so
clearly enough for the judge to understand him at a time when the trial court is in
a proper position to do something about it.15
The objection must merely be sufficiently clear to provide the trial judge and opposing counsel
an opportunity to address and, if necessary, correct the purported error.16 In making this
determination, Lankston states that an appellate court should consider the context in which the
7
complaint was made and the parties’ understanding of the complaint at the time. 1
The State contends that appellant’s objections to the admission of the arrest report at the
suppression hearing were to “hearsay, confrontation and the lack of a sponsoring witness.” The
State further claims that these are not the arguments on which the court of appeals based its
13
See Rivas v. State, 275 S.W.3d 880, 887 (Tex. Crim. App. 2009).
14
827 S.W.2d 907 (Tex. Crim. App. 1992).
15
Id. at 909.
16
Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (discussing rule of “party
responsibility”); see TEX . R. APP . P. 33.1(a)(1)(A) (error is preserved if a complaint is “made to
the trial court by a timely request, objection, or motion that state[s] the grounds for the ruling that
the complaining party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from the context.”); see also
Clarke v. State, 270 S.W.3d 573, 579-80 (Tex. Crim. App. 2008) (even though complaint was
made without specific reference to Brady, “counsel’s complaint was obviously that the
prosecutor had violated the rules of Brady v. Maryland,” thus, the “complaint to the trial court
concerning prosecutorial misconduct was sufficiently specific to make the judge aware of the
complaint”); Mata v. State, 46 S.W.3d 902, 908 (Tex. Crim. App. 2001). Compare Buchanan v.
State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (“When the objection is not specific, and the
legal basis is not obvious, it does not serve the purpose of the contemporaneous-objection rule
for an appellate court to reach the merits of a forfeitable issue that is essentially raised for the
first time on appeal.”).
17
Lankston, 827 S.W.2d at 911.
Ford 6
specific holding–the “unpreserved issue that the document was inadmissible because it was
unsworn.” The State points out that there are many examples of sworn statements that are
hearsay or are not proffered by a competent witness;18 thus, appellant’s objections would have
been equally applicable had the report been supported by an affidavit.
Appellant, on the other hand, argues that his objections were specific enough to put the
trial judge on notice as to the nature of the complaint. He focuses on the last sentence of his
objection: “[T]here’s no basis for putting that document into evidence or having any evidence
that’s not proffered by a competent witness.” Appellant argues that the term “competent
witness,” although not identical to “oral testimony” by a live, sponsoring witness as provided in
art. 28.01, § 1(6), put the trial judge on notice of his specific objection.
The exchange between appellant’s counsel, the prosecutor, and the judge was as follows:
State: We do have Deputy Halcomb’s Offense Report showing the reason for the stop.
Appellant: Judge, I would object to it as hearsay. I object to it under Sixth Amendment
Confrontation Clause. I object to any evidence.
State: As to the objection –
Judge: You’re objecting to State’s Exhibit 1 [the offense report]?
Appellant: My objection to any hearsay testimony from the Prosecutor. I object under
Crawford. I’ll object under the Sixth Amendment of the Constitution of the
United States. I’ll object under the Texas Constitution as to my right to confront
and cross-examine witnesses against my client. Object that there’s no basis for
putting that document into evidence or having any evidence that’s not proffered
by a competent witness.
18
See, e.g., Sturgeon v. State, 106 S.W.3d 81, 87 (Tex. Crim. App. 2003) (“Even if the
defendant himself were to reduce the proposed testimony to writing and submit it in an affidavit,
such a formality would not make it any less ‘hearsay.’ Any statement by anyone other than the
missing witness (the ‘declarant’ for hearsay purposes), describing what that witness did or would
say, would be hearsay.”).
Ford 7
Within this context, the question is whether the trial judge and prosecutor understood that
appellant was objecting to resolving the motion to suppress based on hearsay information
contained in an offense report made by a non-testifying officer. We think that they did. Under
the Lankston test, the plain meaning of appellant’s objection is clear: he was objecting to the
police report as hearsay, but also to the fact that it was unaccompanied by any “competent”
sponsoring witness testimony or affidavit. Although appellant did not specifically cite art. 28.01,
§ 1(6), it is clear that he was objecting to the trial judge relying on Deputy Halcomb’s report
because that officer was neither present to testify to the truth of its contents nor had he previously
sworn to its truth by affidavit.
The prosecutor obviously understood appellant’s objection because she responded
appropriately: Hearsay is admissible in a pre-trial suppression hearing; the Confrontation Clause
does not apply to a pre-trial suppression hearing; and a suppression hearing deals only with
preliminary issues of the admissibility of evidence, not sworn, cross-examined testimony. The
trial judge, in admitting the offense report, verbally agreed that the suppression hearing was
simply to determine the admissibility of evidence at a later trial. Under these particular
circumstances, we conclude that both the trial judge and the prosecutor understood the legal and
factual basis for appellant’s objection. We overrule the State’s first ground for review and
conclude that the court of appeals properly addressed the merits of appellant’s claim.
III.
We turn now to the State’s second ground for review: May a trial judge base his pre-trial
suppression ruling on the contents of an unsworn police report? In an appropriate situation, he
may.
Ford 8
A hearing on a pre-trial motion to suppress is a specific application of Rule 104(a) of the
Texas Rules of Evidence.19 This rule, based on longstanding common-law principles, explicitly
states that a trial judge is not bound by the rules of evidence in resolving questions of
admissibility of evidence, regardless of whether those questions are determined in a pre-trial
hearing or at some time during trial.20 Both common law principles and Rule 104 provide the
19
TEX . R. EVID . 104(a) (“Questions of Admissibility Generally – 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…. In making its determination the
court is not bound by the rules of evidence except those with respect to privileges.”); see
Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002); Galitz v. State, 617 S.W.2d 949,
952 n.10 (Tex. Crim. App. 1981) (op. on reh’g) (“A ‘motion to suppress’ evidence is nothing
more than a specialized objection to the admissibility of that evidence.”); see also GEORGE E.
DIX & ROBERT O. DAWSON , TEXAS PRACTICE : CRIMINAL PRACTICE AND PROCEDURE § 29.132 at
214 (2008 Supp.).
20
See Granados, 85 S.W.3d at 226-28. The Advisory Committee’s Note to Federal Rule
104(a) quotes Dean McCormick and explains the common-law basis for this distinction between
preliminary rulings by the judge in which the rules of evidence do not apply and evidence offered
before the jury on the merits of a claim:
Should the exclusionary law of evidence, “the child of the jury system” in
Thayer’s phrase, be applied to this hearing before the judge? Sound sense backs
the view that it should not, and that the judge should be empowered to hear any
relevant evidence, such as affidavits or other reliable hearsay.
FED . R. EVID 104(a), Advisory Committee’s Note (quoting EDWARD W. CLEARY , MCCORMICK
ON EVIDENCE § 53 at 123 n.8 (2d ed. 1972)). Indeed, Dean Wigmore relied upon the common-
law distinction between preliminary proceedings and jury trials in stating that
in all interlocutory proceedings, even when responsory and not ex parte, the usual
system of rules is ignored, again partly because of the subsidiary and provisional
nature of the inquiry, but chiefly because there is no jury, and the rules of
evidence are, as rules, traditionally associated with a trial by jury.
1 JOHN HENRY WIGMORE , EVIDENCE § 5 at 14 (1904).
The United States Supreme Court, in the context of the post-trial sentencing stage, noted
the important distinction between evidentiary rules applicable to trials before a jury and the
common-law principles concerning a judge’s discretion to use reliable sources of information to
reach a “right result”:
Tribunals passing on the guilt of a defendant always have been hedged in by strict
evidentiary procedural limitations. But both before and since the American
colonies became a nation, courts in this country and in England practiced a policy
under which a sentencing judge could exercise a wide discretion in the sources
Ford 9
trial judge with an important “gatekeeping” role.21 They ensure that all evidence admitted at trial
is relevant, reliable, and admissible under the pertinent legal principles.22 Although the present
case does not deal with expert or scientific evidence, the underlying goal of Rule 104(a) is the
and types of evidence used to assist him in determining the kind and extent of
punishment to be imposed within limits fixed by law. Out-of-court affidavits
have been used frequently, and of course in the smaller communities sentencing
judges naturally have in mind their knowledge of the personalities and
backgrounds of convicted offenders. . . . [Fed. R. Crim. Proc. 32] provides for
consideration by federal judges of reports made by probation officers containing
information about a convicted defendant, including such information “as may be
helpful in imposing sentence or in granting probation or in the correctional
treatment of the defendant[.]”
Williams v. New York, 337 U.S. 241, 246 (1949) (footnotes omitted). In these instances, the
judge should “not be denied an opportunity to obtain pertinent information by a requirement of
rigid adherence to restrictive rules of evidence properly applicable to the trial.” Id. at 247. The
same is true with pretrial rulings on the admissibility of evidence, such as hearings on a motion
to suppress.
21
See Hernandez v. State, 116 S.W.3d 26, 31 n.11 (Tex. Crim. App. 2003) (in deciding
questions of the admissibility of expert testimony, the trial judge need not follow the rules of
evidence, except those relating to privileges, and “may ask questions of the expert witness,
request more information, ask for additional briefing, or seek clarification of the scientific state
of the art and reliable sources in the particular field.”) also DIX & DAWSON , supra note 19,§
29.132a at 215 (noting that, although the Rules of Evidence do not apply at a suppression
hearing, “the courts retain common law authority to develop procedural rules–including rules for
what offered evidence or information should be considered–for the conduct of hearings . . . .
Undoubtedly these rules would recognize considerable discretion in the trial judge, to be
exercised on the basis of several considerations. How effectively can the other party challenge
credibility? How easy would it be for the offering party to obtain evidence permitting better
assessment?”).
22
This “gatekeeping” role has been discussed most extensively in cases dealing with the
reliability of scientific expertise. The Supreme Court in Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 289 (1993), explained that the “gatekeeping” function of the trial judge under FED .
R. EVID . 104(a) is to “ensure that any and all scientific testimony is not only relevant, but
reliable.” Texas courts have followed suit in adopting the “gatekeeping” role of TEX .R. EVID .
104(a). See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d, 549 556 (Tex. 1995) (trial
court responsible for ensuring expert testimony is reliable); Hartman v. State, 946 S.W.2d 60, 62
(Tex. Crim. App 1997) (“gatekeeper” function assigned to trial judge to ensure that scientific
testimony is not only relevant, but reliable as well); Hartnett v. State, 38 S.W.3d 650, 657 (Tex.
App.—Austin 2000, pet. ref’d) (under Rule 104(a) trial court has discretion to determine if
expert witnesses are qualified).
Ford 10
same in a motion to suppress evidence: The trial judge makes a legal ruling to admit or exclude
evidence based upon the relevance and reliability of the factual information submitted by the
parties.23 The question in this case, then, is whether the trial judge used sufficiently reliable
information, in the form of the unsworn offense report, when he ruled upon the merits of
appellant’s motion to suppress.
The court of appeals’s holding turned on its reading of art. 28.01, § 1(6), of the Texas
Rules of Criminal Procedure. That rule reads as follows:
(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.
In Hicks v. State,24 we reiterated our “plain language” approach to statutory analysis:
In Boykin v. State, we held that “‘[w]here the statute is clear and unambiguous, the
Legislature must be understood to mean what it has expressed, and it is not for the
courts to add or subtract from such a statute.’” Therefore, when interpreting a
statute, “we ordinarily give effect to that plain meaning.” But we have
acknowledged an exception to this rule: “where application of a statute’s plain
23
This was true under common-law principles and has been brought forward under Rule
104(a). See MCCORMICK, supra, note 20, § 53 at 123 n.8; see also Hennessy v. State, 660
S.W.2d 87, 91 (Tex. Crim. App. 1983) (“Hearsay-upon-hearsay may be utilized to show probable
cause as long as the underlying circumstances indicate that there is a substantial basis for
crediting the hearsay at each level.”). As this Court noted in a post-Rules case, Johnson v. State,
803 S.W.2d 272, 284 n.10 (Tex. Crim. App. 1990), article 28.01 and Rule 104 do “impose limits
on the purpose and conduct of pre-trial hearings.” Id. This Court quoted Professors Wright and
Graham for the proposition that Rule 104(a) read literally would allow the trial judge to make his
admissibility determination based upon irrelevant evidence, “even though such a determination
might be overturned by an appellate court on the basis of the sufficiency of the evidence to
support the finding.” Id. (quoting C. WRIGHT & K. GRAHAM , 21 FEDERAL PRACTICE AND
PROCEDURE § 5055). Obviously, that kind of discretion–basing a preliminary ruling on irrelevant
or unreliable evidence–is not what Rule 104(a) contemplates because irrelevant and unreliable
evidence is not a sufficient basis to support a preliminary finding–including a finding at a motion
to suppress hearing. Id.
24
241 S.W.3d 543 (Tex. Crim. App. 2007).
Ford 11
language would lead to absurd consequences that the Legislature could not
possibly have intended, we should not apply the language literally.” “If the plain
language of a statute would lead to absurd results, or if the language is not plain
but rather ambiguous,” then it is appropriate to seek the aid of extratextual factors
to develop a reasonable interpretation of a statute.25
Thus, we must look first to the specific words in art. 28.01 to determine its meaning. The
statutory rule states that a motion to suppress “may” be resolved by considering different possible
means of acquiring information. The rule does not state that the motion “shall be” or “must be”
resolved by these specific means.26 There is no suggestion in the plain language of the rule that
this is an exclusive list.27 Instead, the statutory language supports the notion that a motion to
25
Id. at 545-46 (citations omitted).
26
In drafting art. 28.01, the Legislature obviously knew the difference in meaning
between the terms “may,” “must,” and “shall,” because it used all three terms in the statute,
depending upon its purpose. Article 28.01, §1 begins with the phrase, “The court may set any
criminal case for a pre-trial hearing[.]” That is, the trial court has the discretion to conduct a pre-
trial hearing, but it may decline to do so. See Moore v. State, 700 S.W.2d 193, 205 (Tex. Crim.
App. 1985) (a trial court is not required to conduct a pre-trial hearing, even when it is requested).
Conversely, the defendant “must be present at the arraignment.” Art. 28.01, § 1. See Andanadus
v. State, 866 S.W.2d 210, 218 (Tex. Crim. App. 1993). In Section 2, the Legislature stated that
“the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in
which to raise or file such preliminary matters.” See Postell v. State, 693 S.W.2d 462, 467 n.10
(Tex. Crim. App. 1985) (Clinton, J., concurring) (stating that if the trial judge exercises his
discretion to have a pre-trial hearing, “legislative history makes plain that the proviso in § 2
means that the trial court must give an accused sufficient notice of the hearing day to allow him
ten days in which to prepare and file his motions and other preliminary matters, and that they
must be filed seven days before the hearing to be considered by the trial court unless for good
cause shown the trial court grants leave to file thereafter.”). In this statute, the Legislature used
the term “may” when it intended discretionary acts and procedures, and it used “shall” or “must”
when it intended mandatory acts or procedures.
27
The court of appeals reasoned that the Legislature intended that the three methods
specifically mentioned in art. 28.01, § 1(6), be the exclusive means by which to resolve pretrial
motions to suppress. Ford, 268 S.W.3d at 624 (“to properly conduct a hearing on affidavits, a
trial court must admit only evidence that is supported by an affidavit, otherwise the Legislature's
effort to specifically denominate that type of hearing becomes merely superfluous.”). The court
of appeals probably was referring to the statutory construction aid, expressio unius est exclusion
alterius, which means that the expression of one thing implies the exclusion of other,
unexpressed, things. This maxim is “a product of logic and common sense, expressing the
Ford 12
suppress is an informal hearing in which the trial judge, in his discretion, may use different types
of information, conveyed in different ways, to resolve the contested factual or legal issues.28 The
learning of common experience that when people say one thing they do not mean something
else.” Williams v. State, 965 S.W.2d 506, 508 (Tex. Crim. App. 1998). But the maxim applies
only when the statute under consideration is intended to serve as a comprehensive treatment of a
topic or when it relates to a specific exception to a general rule. See Dallas v. State, 983 S.W.2d
276, 278 (Tex. Crim. App. 1998) (“‘if statute specifies one exception to a general rule or assumes
to specify the effects of a certain provision, other exceptions or effects are excluded’”) (quoting
Black’s Law Dictionary 692 (4th ed.1951)). This statutory construction aid might apply to art.
28.01, § 1(6), if the statute read “shall” or “must,” indicating that the specifically named
methods set out in the statute are comprehensive. But when statutes or rules use the permissive
word “may,” that term generally indicates that the specified items are merely examples of the
types of topics covered or methods allowed. See, e.g., Montgomery v. State, 810 S.W.2d 372,
387-88 (Tex. Crim. App. 1991) (op. on reh’g) (noting that Rule 404(b) states that evidence of
other acts of misconduct “may” be admissible for purposes other than character conformity
means that the examples listed in the rule are illustrative, not exclusive); Angleton v. State, 971
S.W.2d 65, 67 (Tex. Crim. App. 1998) (Rule 901(b) sets out a nonexclusive list of methods for
authenticating evidence; those specified methods are illustrative, not exclusive); see generally,
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (stating that the “canon expressio unius
est exclusio alterius does not apply to every statutory listing or grouping; it has force only when
the items expressed are members of an ‘associated group or series,’ justifying the inference that
items not mentioned were excluded by deliberate choice, not inadvertence”); Chevron U.S.A. Inc.
v. Echazabal, 536 U.S. 73, 81 (2002) (“Just as statutory language suggesting exclusiveness is
missing, so is that essential extrastatutory ingredient of an expression-exclusion demonstration,
the series of terms from which an omission bespeaks a negative implication. The canon depends
on identifying a series of two or more terms or things that should be understood to go hand in
hand, which [is] abridged in circumstances supporting a sensible inference that the term left out
must have been meant to be excluded.”).
28
See Bishop v. State, 85 S.W.3d 819, 821-22 (Tex. Crim. App. 2002) (defendant’s
unsworn statement in her motion to suppress sufficient to establish the fact that a search of her
vehicle was made without a warrant, even though the allegation was not in her sworn affidavit.
Defendant’s unsworn statement consistent with what is allowed in art. 28.01, § 1(6)); Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (suppression hearing began with the State
stipulating that the case involved a warrantless arrest); State v. Miller, 116 S.W.3d 912, 915
(Tex. App.—Austin 2003, no pet.) (The plain language of article 28.01, § 1(6), “unambiguously
gives a trial court the discretion to determine the format of a pretrial suppression hearing”;
finding nothing in prior cases “to suggest that the court of criminal appeals intended to deny trial
courts the discretion to require live testimony at a pretrial suppression hearing. Those opinions
hold that a trial court is permitted to determine the merits of a pretrial suppression motion
without hearing testimony, not that it is required to do so.”).
Ford 13
State argues that the structure and language of the statute points to the conclusion that the
legislature intended to give the trial court latitude to hold a “non-traditional, informal hearing
that need not necessarily include witnesses, testimony, or even formal evidence.”29
Appellant argues that the plain language of the statute lends itself to the narrow
construction used by the court of appeals. He cautions that a permissive reading of the statute
will render it without any real effect and asks us to conclude that the legislature intended the
statute to establish a mandatory, not discretionary, procedure for conducting suppression
hearings.
Because the legislature carefully used the term “may” throughout art. 28.01 when it
intended discretionary acts and procedures and used the terms “must” or “shall” when it intended
mandatory acts or procedure,30 we conclude that the legislature intended to establish a
discretionary and informal procedure for the trial court to conduct suppression hearings under art.
28.01, § 1(6). The legislature suggested, but did not require, several different methods to
29
State’s Brief at 8 (“We do not believe that the legislature’s intent in art. 28.01 §(1)(6)
was to dictate what type of evidence may not be admitted at a suppression hearing. Instead the
statute was intended to give the trial court latitude to hold a non-traditional, informal hearing that
need not necessarily included witnesses, testimony, or even formal evidence.”). The State also
argues that construing the statute as an exclusive list would prohibit reliable evidence, such as a
patrol car videotape. “A videotape from a camera mounted to a police officer’s car that depicted
the entire traffic stop from start to finish might provide the trial court with sufficient information
to determine the validity of a traffic stop. But because a videotape is not a motion, affidavit or
oral testimony, the Court of Appeals’ construction of the statute would not all allow the hearing
to be ‘determined on’ the videotape.” Id. at 9. See Carmouche v. State, 10 S.W.3d 323, 331-33
(Tex. Crim. App 2000) (holding that a videotape of an arrest that contradicted officer’s testimony
at a suppression hearing was sufficient for trial court to discount the officer’s testimony). Also,
as the State suggests, the trial judge may resolve a motion to suppress hearing on agreed facts
when only the legal significance of those facts are disputed. Surely, it is in no one’s interest to
require the submission of affidavits or oral testimony when both parties agree on the relevant
facts.
30
See note 21, supra.
Ford 14
determine the merits of a motion to suppress, including information and facts set out in the
motion itself, affidavits, or oral testimony. In sum, under the Boykin “plain language” analysis,
we conclude that art. 28.01 means what it says when it uses the permissive term “may”: A trial
judge may use his discretion in deciding what type of information he considers appropriate and
reliable in making his pre-trial ruling.31 We conclude that the trial judge did not abuse his
discretion in relying upon an unsworn hearsay document.32 Deputy Halcomb’s offense report
could have been, but was not required to be, accompanied by an affidavit stating that “this is a
true and accurate copy of my offense report.”
Finally, we must determine whether the trial court abused his discretion by relying upon
this particular unsworn hearsay document. If the source and content of the hearsay document
were unreliable, then the trial court did not adequately perform his “gatekeeper” function. In this
case, we conclude that Officer Halcomb’s offense report contains sufficient indicia of reliability
to serve as the factual basis for the trial court’s ruling. The offense report includes appellant’s
name, correct offense date, and specific information that coincides with the same basic
31
See, e.g., United States v. Shaefer, 87 F.3d 562, 570 (1st Cir. 1990) (“a judge presiding
at a suppression hearing may receive and consider any relevant evidence, including affidavits and
unsworn documents that bear indicia of reliability”; stating that “the government effected a prima
facie showing of consent [to search] by placing a copy of the police report before the court.”);
United States v. Tussell, 441 F. Supp. 1092, 1097 (D.C. Pa. 1977) (trial judge stated that he
allowed consideration of hearsay and unauthenticated documents “for whatever probative value”
that evidence had during suppression hearing; “This is permissible at a suppression hearing
without regard to the matter in issue, although the court remains obligated to weigh the evidence
and discount that which is less reliable.”).
32
See, e.g., Vanmeter v. State, 165 S.W.3d 68, 69-70 (Tex. App.—Dallas 2005, pet. ref’d)
(in making suppression hearing determination trial judge may rely upon patrol car videotape and
various DPS documents, including offense reports); Macklin v. State, 861 S.W.2d 39, 42 (Tex.
App.—Houston [14th Dist.] 1993, pet. ref’d) (trial court could consider hearsay police report in
making a preliminary determination of admissibility under rule 104(a)).
Ford 15
information to which appellant testified at the hearing.33 Furthermore, it is a criminal offense to
file a false police report.34 Although the trial judge was clearly not required to believe the
information contained within Deputy Halcomb’s report, the document itself is a government
record and of a type that a trial judge may consider reliable in a motion to suppress hearing,35
even though it is hearsay and is not admissible at a criminal trial on the merits.36
In United States v. Matlock, the Supreme Court held that in a suppression hearing “the
judge should receive the evidence and give it such weight as his judgment and experience
counsel.”37 And if there is nothing in the record to “raise serious doubts about the truthfulness of
the statements themselves,” then there is “no apparent reason for the judge to distrust the
evidence.”38 Several federal cases have also held that a trial court may rely upon unsworn
documentary evidence in a motion to suppress hearing.39
33
Although the offense report is itself undated, it does contain a dated fax header: “From:
Fannin County Sheriff’s Office Fax No. _______.”
34
T EX . PENAL CODE § 37.10 (Tampering with Governmental Record); TEX . PENAL CODE
§ 37.09 (Tampering With or Fabricating Physical Evidence); see generally De La Paz v. State,
279 S.W.3d 336 (Tex. Crim. App. 2009) (upholding police officer’s conviction for tampering
with or fabricating physical evidence by filing a false offense report); Wingo v. State, 143 S.W.3d
178, 187 (Tex. App.—San Antonio 2004) (upholding police officer’s conviction for tampering
with a government record for filing a false incident report), aff’d, 189 S.W.3d 270 (Tex. Crim.
App. 2006).
35
See United States v. Sanchez, 555 F.3d 910, 922 (10th Cir.) (rejecting defendant’s claim
that trial judge should not have relied so heavily on hearsay-filled offense report in motion to
suppress hearing), cert. denied, 129 S.Ct. 1657 (2009).
36
T EX . R. EVID . 803(8) and 803(6).
37
United States v. Matlock, 415 U.S. 164, 175 (1974).
38
Id. at 175-76.
39
See, e.g., United States v. Stevenson, 396 F.3d 538, 541-43 (4th Cir. 2005) (at a motion
to suppress hearing, trial judge could rely primarily upon letter written by defendant to his
girlfriend regarding his intention to relinquish his interest in the apartment); United States v.
Bolin, 514 F.2d 554, 557 (7th Cir. 1975) (trial court could consider documentary evidence of
completed customs form at motion to suppress even though it was hearsay); United States v.
Barnes, 443 F. Supp. 137, 139 n.2 (S.D.N.Y. 1977) (“Although the records [of testimony from a
Ford 16
Art. 28.01, § 1(6), comports with Matlock. The trial court may conduct the hearing based
on motions, affidavits or testimony, but there is nothing in the statute to indicate that it must. It is
merely an indication that such hearings are informal and need not be full-blown adversary
hearings conducted in accord with the rules of evidence.
Significantly, appellant did not argue that Deputy Halcomb’s offense report was, in any
way, unauthentic, inaccurate, unreliable, or lacking in credibility. Appellant did not contest the
accuracy of the facts within that offense report; he argued only that the report could not be
considered without the shepherding wings of a sponsoring witness or affidavit. Had appellant
complained about the reliability, accuracy, or sufficiency of the information supporting the trial
judge’s ultimate ruling on the motion to suppress, this would be a very different case.40 The
prosecutor was perfectly willing to sponsor Deputy Halcomb’s testimony if he arrived in time for
the hearing, but the trial judge, hearing no complaint about the accuracy of the report, did not
prior motion to suppress hearing in state court] presented to the [federal] court are neither
certified as correct nor sworn to be correct by a witness who has compared them with the
originals, see Rule 1005, Fed. R. Evid., no issue has been raised as to their authenticity and there
is consequently no reason not to admit them.”).
40
Judge Meyers, in his dissenting opinion, makes an excellent argument concerning
whether Deputy Halcomb had probable cause to search appellant’s car. Unfortunately, appellant
never appealed the issue of whether the facts contained in Deputy Halcomb’s report established
probable cause. His sole issue on appeal was:
The Trial Court erred in denying the Motion to Suppress as there was no evidence
or insufficient evidence offered by the State of Texas to support the warrantless
search of Appellant’s vehicle; such alleged evidence being the inadmissible arrest
report.
Appellant’s brief was devoted entirely to the form of the evidence submitted at the hearing, not to
the underlying facts of the search. Neither at the motion-to-suppress hearing, nor on appeal, has
appellant claimed that the facts set out in Deputy Halcomb’s report were either inaccurate or
insufficient to establish probable cause to search.
Appealing though it may be, we ought not remand the case to the court of appeals on a
claim that was never raised on appeal and never mentioned at the hearing on the motion to
suppress.
Ford 17
wait. He was prepared to rule on the motion based on the deputy’s offense report. Although it is
better practice to produce the witness or attach the documentary evidence to an affidavit, art.
28.01, § 1(6), did not create a “best evidence” rule that mandates such a procedure in a motion to
suppress hearing. Thus, we cannot say that the trial judge abused his discretion in considering
and relying upon Deputy Halcomb’s offense report, which he found, in the absence of any
objection to its specific contents, to be credible and reliable.41
The Court of Appeals was mistaken in concluding that art. 28.01, § 1(6), mandates that
all information considered by a trial judge must be accompanied by affidavit or testimony.
Accordingly, we reverse the judgment of the court of appeals and affirm the trial court’s
judgment.
Delivered: October 21, 2009
Publish
41
Appellant did not, either in the trial court, or on appeal, challenge the trial judge’s
factual findings or his credibility determination.