concurring.
The majority today proffers an opinion which, ironically, does precisely that which it ostensibly seeks to prevent: it substitutes the unfettered philosophy of the judiciary for the true intent of the Legislature. Simultaneously it renders stare decisis meaningless as a court is once again myopically led down the path of hypertechni-cality so decried by those outside the judiciary. In so doing, it ignores the reality of our function within a tripartite form of government. While it is not the role of the judicial branch to either engage in “super-legislating”, as the term has come to be known, or to be hypersensitive to the will of a crime-tired and punishment-seeking public; it is this Court’s role to construe our Code of Criminal Procedure in a manner that simultaneously balances the protection of the defendant and the interests of justice in contemporary society. A properly balanced analysis requires us to interpret the intent of our Legislature; in this case such analysis calls for a continuation of the application of the “inevitable discovery” doctrine in search and seizure law.
Admittedly, Article 38.23 does not specifically carve an exception known as “inevitable discovery” in the manner which the subsequent statutory addition of the “good faith” exception did1. The term “inev*802itable discovery” in fact came in to fashion some time after the adoption of the 1965 Code. But the mere absence of the term from the Code does not serve to emasculate a doctrine2 that previously existed in the common law3. This Court has indicated that the concept of the doctrine existed long before the United States Supreme Court adopted and applied the term “inevitable discovery” in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). E.g. Miller v. State, 667 S.W.2d 773, 778 (Tex.Crim.App.1984) (rationale of doctrine used although term inevitable discovery not used); Vanderbilt v. State, 629 S.W.2d 709, 722 (Tex.Crim.App.1981), cert. den., 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982) (same); See Judge Marvin O. Teague, Applications of the Exclusionary Rule, 23 S.Tex.L.J. 633, 648 (1982) (holding in Vanderbilt implies approval of Inevitable Discovery Doctrine).
As we noted in our opinion in Garza v. State:
As pointed out by former Presiding Judge Onion in an earlier work, this Court has never held that Article 38.23 ... absolutely prevents the application of the several exceptions to the application of the exclusionary rule that have evolved over the years. In Vanderbilt \supra ], this Court noted that the “[t]hree commonly advanced exceptions to the exclusionary rule include the ‘independent source,’ ‘inevitable discovery,’ and ‘attenuation’ doctrines.” With respect to the doctrine of inevitable discovery, the United States Supreme Court adopted and explained the inevitable discovery concept in Nix [supra ]:
“If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received.” [Citations omitted].
This court has previously applied the principle of inevitable discovery to testimony of witnesses whose discovery was imminent absent illegal state action. See Vanderbilt, supra at 722; Wicker [supra ] (Victim’s body would have been recovered regardless of the information furnished by defendant’s second oral statement); Dickey [supra ] (“Where evidence is obtained after a defendant’s constitutional rights have been violated, if the prosecution can establish information by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, then the deterrence rationale has so little basis that the evidence should have been received.”) [Emphasis in original]; Bell [supra] (Evidence admissible under the rationale of inevitable discovery). In none of the above cases, or any others we have researched, did Arti*803cle 38.23, supra, proscribe the admission of previously tainted evidence in light of the recognized exception to the rule.
771 S.W.2d 549, 550-551 n. 1 (Tex.Crim.App.1989) (plurality). Thus, the inevitable discovery principle, regardless of its name, had existed for years prior to the 1988 implementation of Subsection b, and, at the time of Subsection b’s addition, no other changes to the predecessor Article 727a were made. I conclude that the Legislature did not intend to change the manner in which Texas courts have traditionally dealt with this issue, Green, 615 S.W.2d at 711-713, and in fact ratified our prior decisions. See fn. 2, supra.
Additionally, common sense tells one that strict application of this particular Article produces an absurd result. The truth is that a defendant confronted with this type of scenario is no better off with Article 38.23than without, because the outcome remains the same. Evidence of the crime, ultimately discoverable by legal means, would have been untainted and, therefore, admissible. Thus suppression is an exercise in futility. Furthermore, it is illogical to assume that merely because Article 38.23reads, in a vacuum, as though it proscribes the admission of any evidence not strictly complying therewith, that the statute provides more protection than the Fourth Amendment to the United States Constitution. As this Court has previously held, Texas law, like federal law, does not require a defendant to object in order to invoke the protections of Article 38.23. Polk v. State, 738 S.W.2d 274, 275-276 (Tex.Crim.App.1987) (provisions of Article 38.23are automatically invoked). Instead, it is the State that must justify its position in every case. It is difficult to imagine how a defendant will be harmed if the State, by a preponderance standard, must always prove it would have independently unearthed the evidence. As pointed out in Nix, the “ ‘vast majority’ of all courts, both state and federal” recognize the sound logic of the “inevitable discovery” doctrine. 467 U.S. at 440, 104 S.Ct. at 2507. Vanderbilt and Miller are among the Texas cases to which the High Court was no doubt referring.
Appropriately enough, this case strongly indicates both the soundness of the doctrine’s built-in safeguards and how it best operates in Texas. Having reviewed the evidence presented in the instant case, I must agree that the State has failed to carry its burden. The majority decides the statute precludes prosecution and will reverse for that reason. After careful review of the record, I believe the State failed to prove by preponderance of the evidence that they would have ultimately discovered and preserved (by photograph or testimony) the bruise marks found on the appellant’s stomach had they not engaged in an illegal warrantless arrest in violation of the Fourth Amendment to the United States Constitution. The State having failed to carry its burden under the now labelled doctrine of inevitable discovery, appellant’s conviction should, for that reason, be reversed.
Therefore, I respectfully concur only with the result the majority’s opinion reaches this day.
CAMPBELL, J., joins this concurring opinion.. The addition of Subsection b of Article 38.23 can be seen as an attempt by the Texas Legislature to both correct past rulings of this Court and to bring our State in line with the holding in United States v. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 3411, 82 L.Ed.2d 677, 687 (1984). Past opinions of this Court had consistently failed to apply the “good faith” doctrine, relying instead on an unbending application of Article 38.23. E.g. Green v. State, 615 S.W.2d 700, 711-713 (Tex.Crim.App.1980) (McCormick, J. dissenting). Faced with such an interpretation of the statute, Subsection b was added to correct the problem. Thus, the addition of the specific exception was not, as the majority believes, intended to be the exclusive departure from the rule, but rather is intended as a clarification adding and acknowledging a provision where this Court had historically failed to do so. That addition reads as follows:
(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.
Tex.Code Crim.Proc.Ann. art. 38.23(b) (Vernon supp.1988) (emphasis added). The language *802used implies that other exceptions to the Article exist; it states only that "good faith" is one of those exceptions.
. Numerous decisions of Texas' appellate courts have held that once a court (particularly the court of highest jurisdiction) has interpreted a statute, subsequent inaction on the part of the legislature amounts to approval of that court’s interpretation. Lockhart v. State, 150 Tex.Crim. 230, 200 S.W.2d 164, 167-168 (Tex.Crim.App.1947) (Opinion on Motion for Rehearing); Garcia v. State, 140 Tex.Crim. 340, 145 S.W.2d 180, 181-182 (Tex.Crim.App.1940); Jensen Assoc., Inc. v. Bullock, 531 S.W.2d 593, 601-602 (Tex.1976); Moss v. Gibbs, 370 S.W.2d 452, 458 (Tex.1963); Aven v. Green, 316 S.W.2d 78 (Tex.App.— Waco 1958), rev'd on other grounds, 159 Tex. 361, 320 S.W.2d 660 (1959); Cf. Hill v. State, 827 S.W.2d 860, 864 (Tex.Crim.App., 1992) ("When the legislature speaks to an issue subsequent to this or any other court’s decision on the issue, and the effect of the legislation is to modify existing caselaw, the statute shall control unless it is unconstitutional.”) (plurality); Watson v. State, 532 S.W.2d 619, 622 (Tex.Crim.App.1976) (applied statute strictly as no cases in area prior to adoption of new penal code). The greater the interval of inaction, the more certain the correctness of the interpretation. Id.
. Bell v. State, 724 S.W.2d 780, 793 (Tex.Crim.App.1986), cert. den., 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987); Dickey v. State, 716 S.W.2d 499, 505 (Tex.Crim.App.1986) (discussing existence of “inevitable discovery” although court of appeals’ application was incorrect); Wicker v. State, 667 S.W.2d 137, 141-142 (Tex.Crim.App.1984), cert. den., 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984); Earnest v. State, 791 S.W.2d 654, 656 (Tex.App.—Beaumont 1990, no pet.).