Opinion filed August 11, 2016

In The

Eleventh Court of Appeals 

__________

No. 11-15-00016-CR

__________

MARIO ALBERTO SILLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 25561A

O P I N I O N

Mario Alberto Siller appeals his conviction for possession of 

methamphetamine. Appellant pleaded guilty to the offense after the trial court 

denied his motion to suppress evidence seized pursuant to a search warrant. Under 

the terms of a plea bargain, the trial court sentenced Appellant to confinement in the 

Institutional Division of the Texas Department of Criminal Justice for a term of eight 

years. In one issue on appeal, Appellant asserts that the trial court erred when it 

denied his motion to suppress because the Penal Code section that served as the basis 
2

for the issuance of the search warrant was declared unconstitutional. We reverse 

and remand. 

Background Facts

On May 15, 2013, a Taylor County district judge issued a search and arrest 

warrant for Appellant. The affidavit in support of the warrant alleged that Appellant 

had committed the offense of improper photography or visual recording in violation 

of the former version of Section 21.15(b)(1) of the Texas Penal Code.

1

 The warrant 

authorized the search of Appellant’s home for evidence of the alleged offense. When 

police searched Appellant’s home pursuant to the warrant, they found less than one 

gram of methamphetamine. Appellant was indicted in September 2013 for both 

improper visual recording and possession of methamphetamine.

During the pendency of the underlying case, the Court of Criminal Appeals 

ruled in Ex parte Thompson that, to the extent that it proscribed taking photographs 

and recording visual images, subsection (b)(1) of Section 21.15 was facially 

unconstitutional in violation of the freedom of speech guarantee of the First 

Amendment. 442 S.W.3d 325, 330 (Tex. Crim. App. 2014). After Thompson, the 

State dropped the improper photography charge.

In February 2015, Appellant filed a motion to suppress evidence with respect 

to the remaining methamphetamine charge. He premised the motion on the 

contention that the statute upon which the arrest and search warrant were issued was 

subsequently found to be unconstitutional in Thompson. The trial court held a 

hearing on the motion to suppress in February 2015 on stipulated facts. Appellant 

argued that the search warrant was void because the improper video recording statute 

 

1Act of May 18, 2007, 80th Leg., R.S., ch. 306, § 1, 2007 Tex. Gen. Laws 582, invalidated in part 

by Ex parte Thompson, 442 S.W.3d 325, 351 (Tex. Crim. App. 2014), amended by Act of May 30, 2015, 

84th Leg. R.S., ch. 955, § 2, 2015 Tex. Sess. Law Serv. 3393–94 (West). All references to Section 21.15 

in this opinion are to the former version declared unconstitutional by the Court of Criminal Appeals in 

Thompson.
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had been declared unconstitutional. The State responded to Appellant’s contention 

by asserting that the statute was still valid at the time the warrant was issued and that 

the officers acted in good faith in seeking a warrant based upon a statute that had not 

yet been invalidated.

The trial court denied Appellant’s motion to suppress and issued written 

findings of fact and conclusions of law. The trial court found that there was no 

evidence that officers did not act in good faith in alleging a violation of the offense 

of improper visual recording and that there was no evidence that the officers knew 

or had any reason to believe the statute was unconstitutional. The trial court also 

determined that the supporting affidavit for the warrant established probable cause 

for the magistrate to issue the warrant.

Analysis

In his sole issue on appeal, Appellant argues that the trial court erred when it 

denied his motion to suppress. A trial court’s denial of a motion to suppress is 

reviewed for an abuse of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. 

Crim. App. 2013). We normally review a trial court’s ruling on a motion to suppress 

by using a bifurcated standard of review, where we give almost total deference to 

the historical facts found by the trial court and review de novo the trial court’s 

application of the law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 

2011) (citing Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)). 

However, when the trial court is determining probable cause to support the issuance 

of a search warrant, there are no credibility determinations; rather, the trial court is 

constrained to the four corners of the affidavit. Id. (citing Hankins v. State, 132 

S.W.3d 380, 388 (Tex. Crim. App. 2004)).

Under Texas law, “[n]o search warrant shall issue . . . unless sufficient facts 

are first presented to satisfy the issuing magistrate that probable cause does in fact 

exist for its issuance” and “[a] sworn affidavit setting forth substantial facts 
4

establishing probable cause” is filed with the search warrant request. TEX. CODE 

CRIM. PROC. ANN. art. 18.01(b) (West Supp. 2015). “[T]hat a specific offense has 

been committed” is one of the components of probable cause. Id. art. 18.01(c). 

Appellant asserts that the search warrant affidavit failed to establish probable 

cause because his alleged conduct in violation of Section 21.15(b)(1) did not 

constitute a crime because that subsection of the statute was subsequently declared 

unconstitutional. He contends that “[a] statute that is unconstitutional on its face is 

void ab initio, and cannot, therefore, provide a legal basis for anything, including a 

search warrant affidavit.” He cites the following portion of Judge Cochran’s 

concurring opinion in Ex parte Chance in support of this proposition:

Generally, a statute that has been declared unconstitutional is 

void from its inception and cannot provide a basis for any right or relief.

It is thus the general rule that an unconstitutional statute, even though 

it has the form and name of law, in reality is not law and in legal 

contemplation is as inoperative as if it had never undergone the 

formalities of enactment.

Ex parte Chance, 439 S.W.3d 918, 918–19 (Tex. Crim. App. 2014) (per curiam) 

(Cochran, J., concurring) (quoting 12B TEX.JUR. 3D Constitutional Law § 57, at 97 

(2012)2). The Court of Criminal Appeals subsequently reiterated the principle that 

a void statute never existed. See Smith v. State, 463 S.W.3d 890, 895 (Tex. Crim. 

App. 2015). The court “recognized that ‘an unconstitutional statute is void from its 

inception’ and that ‘“when a statute is adjudged to be unconstitutional, it is as if it 

had never been”’ and that such ‘an unconstitutional statute is stillborn[.]’” Id.

(alteration in original) (quoting Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. 

 

2The current version of the “hornbook law” cited by Judge Cochran further provides that “[s]uch a 

statute leaves the question that it purports to settle just as it was prior to its ineffectual enactment. It is 

invalid and imposes no duties, confers no rights, creates no office, bestows no power, affords no protection, 

and justifies no acts performed under it.” 12B TEX. JUR. 3D Constitutional Law § 57 (2016). 
5

App. 1988)). “[A]n unconstitutional statute in the criminal area is to be considered 

no statute at all.” Id. (quoting Reyes, 753 S.W.2d at 383).

The United States Supreme Court addressed a similar situation in Michigan v. 

DeFillippo, 443 U.S. 31 (1979). The Court held that an arrest was not rendered 

unreasonable for Fourth Amendment purposes simply because the offense for which 

the defendant was arrested was later declared to be unconstitutional. Id. at 37–39. 

The Court observed that “[p]olice are charged to enforce laws until and unless they 

are declared unconstitutional. The enactment of a law forecloses speculation by 

enforcement officers concerning its constitutionality.”

3

Id. at 38. The Court 

concluded that the arresting officer had “abundant probable cause” to arrest the 

defendant for an offense that had not yet been declared unconstitutional. Id. at 37.

In Howard v. State, 617 S.W.2d 191 (Tex. Crim. App. 1979), the Court of 

Criminal Appeals addressed DeFillippo soon after its issuance. The Court of 

Criminal Appeals expressly rejected the “good faith doctrine” recognized in 

DeFillippo for the federal exclusionary rule and held that, “as a matter of state law, 

independently of the standard announced in DeFillippo, . . . evidence seized incident 

to an arrest under an unconstitutional law is excludable under Texas law.” 617 

S.W.2d at 192–94 (citing Baker v. State, 478 S.W.2d 445 (Tex. Crim. App. 1972))

(addressing the issue in the original opinion and clarifying it in the opinion on the 

State’s motion for rehearing). Legal commentators have characterized the holding 

in Howard as a “quite different approach as a matter of state law” than the federal 

approach adopted in DeFillippo. 40 George E. Dix et al., Texas Practice Series: 

Criminal Practice and Procedure § 10.40 (3d ed. 2015).

 

3The Court noted a “possible exception” if the law is “so grossly and flagrantly unconstitutional 

that any person of reasonable prudence would be bound to see its flaws.” DeFillippo, 443 U.S. at 38. 
6

The Court of Criminal Appeals cited TEX. CODE CRIM. PROC. ANN. art. 38.23

(West 2005) in Howard as a basis for its determination that our state’s exclusionary 

rule differs from the federal exclusionary rule. 617 S.W.2d at 193–94. The Texas 

exclusionary statute is “broader than its federal counterpart” and therefore more 

protective of individual rights. Miles v. State, 241 S.W.3d 28, 34 (Tex. Crim. App. 

2007); see Perez v. State, No. 14-14-00887-CR, 2016 WL 2605755, at *11–13 (Tex. 

App.—Houston [14th Dist.] May 5, 2016, no pet.) (discussing the differences 

between the federal exclusionary rule and the Texas exclusionary statute); 

McClintock v. State, 480 S.W.3d 734 (Tex. App.—Houston [1st Dist.] 2015, pet. 

granted) (same). Article 38.23 was amended in 1987,

4

after Howard was issued, to 

provide for a good faith exception that provides 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.” The State contends that the 

Article 38.23(b) exception is applicable to this case because the officers acted in 

good faith reliance upon an affidavit issued by a magistrate. We conclude that the 

statutory exception is not applicable.

The plain wording of Article 38.23(b) “requires a finding of probable cause”

in order for the good faith exception to apply. Curry v. State, 808 S.W.2d 481, 482 

(Tex. Crim. App. 1991) (quoting Gordon v. State, 801 S.W.2d 899, 912–13 (Tex. 

Crim. App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 

685, 690 (Tex. Crim. App. 1991)). As the Court of Criminal Appeals explained, it 

is not enough under Article 38.23(b) that the officer had a good faith belief that 

probable cause existed—as is the case under the federal exclusionary rule. Id. (citing 

 

4See Act of May 29, 1987, 70th Leg., R.S., ch. 546, 1987 Tex. Gen. Laws 2207 (codified at CRIM.

PROC. art. 38.23(b)). 
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United States v. Leon, 468 U.S. 897 (1984)). Instead, Article 38.23(b) requires that 

probable cause must actually exist in order for the exception to be invoked. Id.

The First District Court of Appeals recently addressed a similar situation in 

McClintock. Officers obtained a search warrant primarily based upon information 

obtained from a warrantless canine sniff of the defendant’s front door. 480 S.W.3d 

at 736–37. At the time of the search, the warrantless canine sniff was proper under 

binding appellate precedent. Id. The United States Supreme Court subsequently 

declared warrantless searches of this type to be unconstitutional. Id. (citing 

Florida v. Jardines, 133 S. Ct. 1409 (2013)). On remand from the Court of Criminal 

Appeals, the court of appeals concluded in McClintock that the exception in 

Article 38.23(b) only applies “in cases involving technical defects in warrants, not 

warrants with defects concerning probable cause.” Id. at 743; see McClintock v. 

State, 444 S.W.3d 15, 19 (Tex. Crim. App. 2014). The court of appeals held in 

McClintock that the Article 38.23(b) exception did not apply because the search 

warrant was not supported by probable cause because of the subsequent declaration 

that the underlying search was unconstitutional.5 480 S.W.3d at 743.

Commentators have noted that “Article 38.23(b) has been interpreted as 

providing only a very limited good faith exception, and that it is not enough for an 

officer to believe he or she was acting pursuant to a warrant based on probable cause, 

but rather, the warrant must, in fact, be supported by probable cause.” 1 D. Mark 

Elliston et al., Texas Practice Guide: Criminal Practice and Procedure § 10.46

(2016 ed.) (citing Gordon, 801 S.W.2d at 912–13); see Dix, supra, § 7.67 (same). 

Professors Dix and Schmolesky have opined that Article 38.23(b) “makes no 

provision for evidence obtained in reliance upon a statute later held invalid . . . and 

 

5We note the extensive dissenting opinion by Justice Keyes in McClintock. 480 S.W.3d at 744–54. 

We further note the fact that the Court of Criminal Appeals has granted the State’s petition for discretionary 

review in McClintock.
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[Article 38.23(b)] leaves considerable doubt whether the courts have authority to 

develop any such exception.” Dix, supra, § 7.61.

Based upon our reading of the current authority from the Court of Criminal 

Appeals, we conclude that the search warrant at issue in this case was not supported 

by probable cause. Recent cases establish that criminal statutes declared 

unconstitutional are void ab initio. Accordingly, the search warrant in this case was 

not supported by probable cause because the Penal Code section upon which it was 

based was later declared to be unconstitutional. See Thompson, 442 S.W.3d at 330. 

The absence of probable cause to support the search warrant precludes the 

application of the good faith exception contained in Article 38.23(b). See 

McClintock, 480 S.W.3d at 743. We sustain Appellant’s sole issue on appeal. 

This Court’s Ruling

We reverse the judgment of the trial court and remand this cause to the trial 

court for further proceedings consistent with this opinion. 

JOHN M. BAILEY 

JUSTICE

August 11, 2016

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.