## IN THE COURT OF CRIMINA L APP EALS OF TEX AS

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. P D

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B R I A N J A S O N W H I T E , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E F I F T H C O U R T O F A P P E A L S

C O L L I N C O U N T Y

K E L L E R , P
. J
. , f

i l e d a c o n c u r r i n g o p i n i o n i n w h i c h K E A S L E R , Y E A R Y , a n d K E E L , J J
. , j o i n e d
. The court of appea ls based its decision in this case on our opinion in Robinson

. Appellant 1

say s the prese nt case is differ ent beca use Robinson involved a pre- trial motion to suppress and this

case involves evidenc e offe red at trial. This distinction is s u p er fi ci al l y appea ling but it is, in my opinion, ultimately untenable. There is a better way to de termine who has the burden in que stions
of admissibilit y

of evide nce. I

write sepa

rate ly to expl ain my

view.

I n Vinson v. State , this Court said that “the proponent of evidenc e ordinarily has the burden”

State v. Robinson , 334 S.W .3d 776 (Tex. Crim. App. 2011). 1WHITE CONCURR ENCE — 2

to establish its admiss ibilit y
. The use of the word “ ordinarily ” indicate s that there are exceptions 2

to this g ener al rule, and so, it i s not alway s true that the proponent of t he evidence has the burden

at trial to prove its admissibili ty

. Sometimes the burden reg arding admissibili ty fal l s o n the opponent of the e vidence

. The problem with a st atement about the burden being on a particula r party to prove that
evidenc e is admissible or inadmis s i b l e i s t h at it oversimplifies the issue. Admissibil ity of a particula r i tem of evidence depends on what conditions for admissibi lity are established b y a rul e
of evidenc e, a statute, or a constitutional provision. Who has the burden at trial to prove a particula r
condition for admissibili ty depends on what ty pe of issue is being litigated. I n g ener al, if the issue
rela tes to a rule of admission , it is indeed the proponent’s burden to prove the conditions for
admissibili ty

. I f the issue rela tes to a rule of exc lusion , howeve r, g en erally speaking , it is the

3 opponent’s burden to prove the conditions for exclusion. As we shall see, though, the analy sis can
become quite complicated, primarily beca use rules of exclusion often h av e ex ceptions, and those exceptions g ener ally function as rules of admission, on which the proponent has the burden of proof. And the exceptions are often the r eal bone of conte ntion between the parties.

Be fore I g et to the nuts a

nd bolts of how I believe this wor ks, I mention two cave ats. First, the proponent of evidence does not have a burden to d o an y t h i n g until the opponent articula tes a 4

rea son to believe that the evidenc e is inadmissible. After that, the proponent’s burden is limit ed to 5

252 S.W .3d 336, 340 (Tex. Crim. App. 2008). 2
There may

be exceptions to that principle, as I shall expl ain later

. 3 Or in some situations, the trial court. 4 State v. Esparza , 413 S.W .3d 81, 86 & nn.20- 21 (Tex. Crim. App. 2013). 5WHITE CONCURR ENCE — 3

providing a response to tha t r eason. Second, ther e ar e ac tually two ty pes of bur dens of pr oof: the 6
burden of production and the burden of persua sion. The b u rd en o f production is the burden to 7 produce evidenc e sufficie nt to support a finding that the condition in question is true. The burden 8
of persua sion is the burden—sometimes in the fac e of controve rting evidenc e—to convince the
finder of fac t tha

t the condition in question is true. The burdens of production and persua sion a re 9 sometimes, but not alway s, on the same party

. Be cause trial courts are g iven g rea t defe renc e in 1 0 deciding whether a party has met the burden of persua sion, the burden appellate courts are 1 1

g ener ally conce rned with in deter mining the admissibili ty of evidenc e is the burden of production.

The issue is more nuance d from the appellate point of view. See id. at 85-86 (discussing 6 Callow ay rule, wh ich allows preva iling party at t rial t o preva il on appea l on a theory not raised at trial but rec og nizi ng an exception to that rule when it would work a manifes t i n j ustice on the appea ling party by depriving the party of the opportunity to develop a complete fac tual rec ord with respe ct to the leg al theory that was not pre sented to the trial c ourt).
Id. at 88. 7
W illiams v. State , 851 S.W .2d 282, 286 (Tex. Crim. App. 1993) (“[W] hether an ac cused 8 voluntarily rele ased his victim alive and in a safe place ‘is not submitt ed to the jury unless evidenc e is admitted supporting’ a finding that he did. I n other words, the acc used has the threshold burden of produc tion.”) (c itation omit ted). Alford v. State , 806 S.W .2d 581, 585 (Tex. App.—Dallas 1991), affirmed , 866 S.W .2d 619 9 (Tex. Crim. App. 1993) (“The burden of persua sion is the burden of persua ding the trier of fac t that the fa ct is true.”) (citing M C C O R M I C K O N E V I D E N C E § 336, at 947 (3d e d. 1984)).
See Esparza , 413 S.W .3d at 88 (burde n of production and persua sion on State to establish 1 0 scientific reliability of its proff ere d evidenc e; burden of production and persua sion on d e f e n d a n t w it h respe ct to whether the evid e n c e w a s s u p p r e s s ib le a s illega lly obtained under the Four th Amendment); S t a t e v. K

l ima , 934 S.W .2d 109, 112 (Tex. Crim. App. 1996) (Clinton, J ., concur ring ) (burden o f production and persua sion on defe ndant to establish rea sonable expectation of privac y in the place
sear ched)

. See Guzman v. State , 955 S.W .2d 85, 8 9 (T ex
. Crim. App. 1997) (re fer ring to “the 1 1 long- standing rule that appellate courts should show almost total defe renc e to a trial court’s finding s of fa ct espe cially

when those f

indings a re ba sed on an e valuation of c redibility and deme anor” ).WHITE CONCURR ENCE — 4

As I have indicated ear lier, for rules of admission, the burden is g ener ally on the proponent

to show that the evidenc e is admissible. For example, the proponent has at least an initial burden 1 2 to demonstrate that the pr offe red e vidence is releva nt and authe ntic. When e x pert testimony is 1 3 1 4 at issue, the propone nt has the burde n to establish reliability

. 1 5

For rules of exclusion, howeve r, the burden is g ener ally on the opponent of the evidenc e to
show that the evidenc e is inadmissible. For hear say , for example, which is a rule of exclusion, we 1 6

Sometimes that burden is only one of production. See infra at n.14 (authe ntication). Other 1 2 times, the proponent has t h e b u rd en o f both production and persua sion. See infra at n.15 (expert testimony ).

See T E X

. R. E V I D

. 401(a) (“Evide nce is r eleva nt if

. . . it has any tendenc y to make a fac t 1 3
more or less probable than it would be without the evidenc e.”) ; Bigby v. State , 892 S.W .2d 864, 883 (Tex. Crim. App. 1994) (“To support the admission of evidenc e of esca pe from custody or flig ht it must appea

r that the esca

pe or flig ht have some leg al rele vance to the offe nse under prosec ution” but
once that is established “the burden shifts to the defe ndan t t o s h o w aff irmatively the esca

pe and flig ht direc tly connec ted to some oth er transac tion and further that it was not connec ted with the offe nse at trial.”); Chambers v. State , 866 S.W .2d 9, 26-27 (Tex. Crim. App. 1993) (“[T]he burden of showing the rele vance of particula r evidenc e to the issue of bias rests on its proponent.” ); Hicke y v. State , 45 Tex. Crim. 297, 302, 76 S.W

. 920, 921 (1903) (“B efor e evidenc e in reg ard to the bullet alleg ed to have been found upon the g round could be introduced, it m u s t b e s h o wn to have some connec tion, or in some manner tend to solve some issue in the case
. I n other words, it m u s t b e in
some way connec ted with or rele vant to the matters at issue.”); U-Haul Int’l v. W aldrip , 380 S.W .3d 118, 135 (Tex. 2012) (“Waldrip did not car ry his burden of showing the rele vance of this evidenc e.”)

. See also T E X

. R. E V I D . 402.
T E X

. R. E V I D

. 901 (“To satisfy the require ment of authentica ting or identify ing an item of 1 4 evidenc e, the proponent must produce evidenc e sufficie nt to support a finding that the item is what the propone nt claims it is.”).

Esparza, 413 S.W .3d at 86, 88. See T E X

. R. E V I D . 702. 1 5
Our case law reg arding T E X

. R. E V I D

. 403 provides an example of an ex ce p t i on to this 1 6 distinction, in that we have declined t o place the burden on either party with respe ct t o the rule as a whole. Mont

g o me r y v. State , 810 S.W .2d 372, 389 (Tex. Crim. App. 1991) (op. on reh’ g ). Howeve r, if the case law fac tors used to evalua te case s under the rule are viewed as part of the rule,
our trea tment of those fac tors would g ener ally be consistent with the fra mework I have set out. We have sug g ested that it is appropr iate to require the proponent to demonstrate p ro b at i v e value andWHITE CONCURR ENCE — 5

have held that the opponent of the evidenc e bear s the burden to show that evidenc e is hear say , but 1 7
once hear say is shown, the proponent bea rs t h e burden of establishing an ex emption or ex ception
to the hear say rule. The case s are uniform that, if the issue is w hether cer tain evidenc e mee ts the 1 8
basic definition of hearsay , the opponent of the evidenc e has the burden. As mentioned above, 1 9 2 0
it is fre quently the case with ru les of exclusion that the rea l dispute is over whether a cer tain

need f or the e vidence and re quire the oppone nt to demonstrate pre judice. Id. (“The evidenc e may be proff ere d long befor e the opponent is capa ble of g aug ing the proponent’s ‘nee d’ for it.

. . . I n that event h e wo u l d b e ill equipped to ‘demonstra te’ whether at least one major fac tor in the analy sis milit ates for or ag ainst exclusion. I ndeed, it is the propo n ent of the evidenc e who is in the best position to advanc e the rela tive probativene ss of his evidenc e.
. . . The court would do well to inquire of the opponent what his view of the prejudice is. On the other hand, the court s hould ask the proponent to ar

ticulate his nee d.”).
Edwards v. Stat e , 5 6 1 S

. W.2d 834, 837 n.1 (Tex. Crim. App. 1977) (“The burden of 1 7 showing this testimony was hear say was on the appellant.” ); Beal v. S t ate , 520 S.W .2d 907, 911 (Tex. Crim. App. 1975) (similar statement); Boening v. State , 422 S.W .2d 469, 473 (Tex. Crim. App. 1967) (“In the cas e at b ar the source of the witness’ knowledg e is not shown. I t was there fore i n cumbent upon appellant to reinfor ce his objection by demonstrating to the court that s u ch testimony was in fac t hear say
. This he fa iled to do.”). See also Martinez v. Stat e , 22 S.W .3d 504, 508 (Tex. Crim. App. 2000) (“Since the trial court implicitl y found Rudd qualified as an expert, the State had no burden to invoke a n exception to the hear say rule. Rudd was f

ree to offer his opinion based on Pena’s repor

t.”); Compton v. State , 6 0 7 S

. W

. 2 d 246, 252 (Tex. Crim. App. 1980) (“B eca use neither the chec k nor its content constituted hear say evidenc e, there was no burden upon the State to establish its admissi bility as an e x ception to the rule prohibiting he arsa y .”). Taylor v. State , 268 S.W .3d 571, 578-79 (Tex. Crim. App. 2008) (“O nce the opponent of 1 8 hear say evidenc e makes the proper objection, it become s the burden of the proponent of the evidenc e to establish that an exception applies that would make the evidenc e admissible in spite of its hear say char acte r.”) ; Martinez v. State , 178 S.W .3d 806, 815 (Tex. Crim. App. 2005) (“A ppellant objected to the t estimony as hearsay ; it was hearsa y , and thus his objection was both proper and sufficient. I f the testimony fit some exception or exemption to the hear say rule (or if the evidenc e was not being offe red for the truth of t h e matter asser ted) the State, as the proponent of the evidenc e, had the burden of demonstrating the applica bility of that exemption or exception.”).
See T E X

. R. E V I D

. 801(d). Statements classified in Rule 801(e) as “not hear s ay ” ar e 1 9 considere d “exemptions,” on which the propone nt has the burde n of proof

. See supra at n.17. 2 0WHITE CONCURR ENCE — 6

exception applies. This is true with hear say
. Although the initial burden is on the opponent to show
that the evidenc e is hear say , the debate is often about whether an exemption or exception applies that
would make e vidence admissible—an issue on which the pr oponent has the bur den.

For constitutional rules that opera te to exclude evidenc e, the burdens of proof are allocate d
simil arly , with the opponent being require d to show fac to rs fa v oring exclusion and the proponent only then being require d to show fac tors favor ing admission. Fo r Fo u rt h Amendment issues, the
defe ndant who s ee k s to suppress evidenc e “has the burden of producing evidenc e that rebuts the presumption of prope r police c onduct.” One method of doing this would be to produc e evide nce 2 1
of a sear ch or seizure and the absenc e of a war rant. The defe ndant also has the burden of showing 2 2
that he has standing to c ontest the sear ch or seizure, such as a rea sonable expectation of privac y in
the place sear ched. I f the defe ndant rebuts the presumption of proper police conduct and also 2 3
shows standing , then and only then does the State have the burden to show the rea sonablene ss of the

sear ch or seizure. L ikewise, for Fifth Amendment Miranda claims, the defe ndant has the burden 2 4 2 5

Robinson , 334 S.W .3d at 778-79. See also Delafuente v. State , 414 S.W .3d 173, 176 (Tex. 2 1 Crim. App. 2013).

Abney v. State , 394 S.W .3d 542, 547 (Tex. Crim. App. 2013); S t a t e v. W oodard , 341 2 2 S.W .3d 404, 414 (Tex. Crim. App. 2011) (“U ntil Woodard established that he w as seized without
a war rant, he reta ined the burden; without pr oof of a seizure the burden did not shift.”); Robinson , 334 S.W .3d at 779 (“[T]he State stipulated to the war rantless arr est, there by relieving appellee from the burde n of re butting the pr esumption of proper police conduc t.”). Handy v. State , 189 S.W .3d 296, 299 & n.2 (Tex. Crim. App. 2006); Klima , 934 S.W .2d 2 3 at 110-11.

Abney , 394 S.W .3d at 547; Robinson , 334 S.W .3d at 779. 2 4
Miranda v. Arizona , 384 U.S. 436 (1966). 2 5WHITE CONCURR ENCE — 7

to show that his statement was the product of custodial interrog ation. Only afte r that is done does 2 6
the State have the burden to show that the proper war nings wer e g iven in compliance with
Miranda

. 2 7
Wit h this backg round, I consider Article 38.23. The statute is fra med as a rule of exclusion:
“No evidenc e obtained by an office r or other person in violation of any provisions of the Constit ution
or laws of the State of Te x as, or of

the Constitut ion or laws of the United States of Amer ica, sha ll
be admitted in evidenc e ag ainst the accused on the trial of any criminal ca se.” When the Article 2 8

38.23 alleg ation is tha t e vidence was obtained in violation of a constitutional provision, we would
look to the jurisprudenc e associate d with t h at provision to deter mine the allocation of burdens, though it can g ener ally be said that the defe ndant will have the burden to show that the constitutional provision was implicated in some way
. And if he makes the requisite showing , the State would then
have the burden to show c ompliance with constitutional require ments.
When the Article 38.23 alleg ation is that evidenc e was obtained in violation of a statute, we
would look to the particula r statute to deter

mine who has what burdens of proof. Wit h any statute,
the defe ndant m u s t at least produce some evidenc e of a statutory violation. When the statute at 2 9
issu e i s o n e t h at proscr ibes a criminal offe nse, such as the statute befor e us, the allocation of 3 0

Herrera v . State , 241 S.W .3d 520, 526 (Tex. Crim. App. 2007). 2 6
Id. I am n ot attempting to exhaustively descr ibe the various constitutional rules and to 2 7 whom the burden of proof is allocate d but to illust rate how differ ent parties can h av e b u rd en s on differ ent issues rela ting to a pa rticular c onstitut ional rule.
T E X

. C O D E C R I M

. P R O C . art. 38.23(a ). 2 8
Robinson , 334 S.W .3d at 779. 2 9
T E X

. P E N A L C O D E § 16.02. 3 0WHITE CONCURR ENCE — 8

burdens is usually easy to deter mine. The defe ndant has essentially the same burdens that the State
would have in a prose cu t i o n under the statute, except that the standard of proof would be a preponde ranc e of the evidenc e instead of bey o n d a re as o nable doubt. That is, any thing that is an
element of the offe nse is something the defe ndant has the burden to prove. Any thing t h at is an 3 1
aff irmative defe nse is something the State has the burden to prove. Any thing that is a true defe nse 3 2 is something on which the State has t he burden of production and the def endant ha s the burden of

persua sion. 3 3
So, the defendant who claims that evidenc e is inadm i s s i ble under Article 38.23 beca use i t

was obtained in violation of Penal Code § 16.02 (unlawf ul interce ption of communications) is in the

same position as a prosec utor char g ing a crime under § 16.02, except that the defe ndant only has to

prove the crime by a p reponderanc e of the evidenc e. The elements that the State would have to

prove in a § 16.02 prosec ution are elements the defe ndant has to prove to establish a statutory
violation for the purpose of excluding evidenc e under Article 38.23. The aff irmative defe nse of consent-by -a- party -to-the- conver sation is then something the State ha s to prove.
I am awa re o f o n l y o n e citation that supports the notion that the burden on admissibili ty
issues depends solely upon the stag e of the proce eding s at which an issue is litigated: the concurring opinion in Robinson

. But it is just a concur ring opinion, not adopted by this Court, and there is 3 4

See id. § 2.01 (State re quired to prove elements of of fense in a cr iminal prosecution). 3 1
See id. § 2.04(d) (def

endant require d to prove elements of aff irmative defe nse in a criminal 3 2 prosec ution).

See id. § 2.03(c) , (d) (def

endant has burden of production, State has burden of persua sion 3 3 in a cr iminal prosecution).

See R obinson , 334 S.W .3d at 780-82 (Coc hran, J., concurr ing)

. 3 4WHITE CONCURR ENCE — 9

case law that see ms to be to the contrar y
. I n Russell v. Stat e , we said, “Te x as st atutory law is silent as t o how t he b u rd en o f p roof is
distributed in a motion to suppress. This Court, there fore , seeming ly has adopted, at least in some

respe cts, the rules f

ollowed by

fede ral c ourts in distributi ng the burde ns of proof.” I n support of 3 5
the holding that the movant in a motion to suppress had the burden to defe at the p re s u m p t i o n of

proper police conduct, we cited Mattei v. State , which in turn relied upon fede ral case s. I n Mattei , 3 6
the def endant ha d filed a motion to suppress, but the suppre ssion issue was litigate d at trial. We 3 7 quoted extensively from the Fifth Circuit decision of Rogers v. Uni ted States , which place d the 3 8
burden on a defe ndant who seeks th e p ro t ec t i o n of an exclusionary rule of evidenc e: “When a
criminal defe ndant claims the rig ht to protec tion under an exclusionary rule of evidenc e, it is his task

to prove his case .” The discussion c ontinued by focusing on the nature of the admissibili ty issue 3 9

as the rea son for how the burden of proof was allocate d, and not on whether the motion was litigated

717 S.W .2d 7, 9 n.5. (Tex. Crim. App. 1986). 3 5
Id. at 9. 3 6
455 S.W .2d 761, 763 (Tex. Crim. App. 1970) (“A t this point appellant’ s counsel, who had 3 7 prepa red a motion to suppress and objection to the sear ch , reque sted voir dire examination of the witness out of the pre sence of the jury

. . . . Following the voir dire examination of Offic er Shelton there was a confe renc e held at the bench betwee n counsel, and the court announce d to the jury : ‘— there is a certain witness in connec tion with this m o t i o n t hat i s not here

. He is up at Fort Hood or somewher e around Killeen, and it has nece ssitated a rec ess for forty -five minutes until they can g et him here be cause we c an' t proce ed with t he mot ion until we do, so conseque ntly we will rec ess at this time for forty -five minutes. —’.

. . At the conclusion of t h e h ea ri n g o n appellant' s motion to suppress the court ruled: ‘The defe ndan t 's m o t i o n t o suppress is denied. Br ing in the jury , Mr. Sheriff.’ ”). 330 F.2d 535 ( 5th Cir. 1964). 3 8
Mattei , 455 S.W .2d at 766 (quoting Rogers , 330 F.2d a t 542). 3 9WHITE CONCURR ENCE — 10

befor e trial or dur ing tr ial. 4 0

M o re re ce n t l y , this Court held in Herrera that, “ [a] t trial , the defe ndant bear s the initial
burden of proving that a statement was the product of ‘custodial interrog ation’” for Miranda

purposes. A motion to suppress was filed in Herrera , but the Miranda issue was litigated at trial.

4 1 4 2

Our case s show a more complex trea tment of exclusionary rules of evidenc e than t h e pretria l/trial distinction advoca ted by Appellant. The fra mework I have set forth is consistent with
these c ases, while A

ppellant’s propose d “stag e of pr ocee dings” rule is not.
Wit h these c omments, I join the Court’s opinion. Filed: June 13, 2018 Publis h

Id. (quoting Rogers , 330 F.2d at 542-43) (“I t is true , howeve r, that in asser ting an illega l 4 0
arr est the defe ndant must satisfy this burden by showing that the arr est was made without a war rant. Whil e an arrest pursuant to a war rant is prima fac ie evidenc e of probable cause , the prosec utor should be forc ed to come forwa rd with evidenc e of probable cause in the absenc e of a wa rr an t

. Wit hout such a rule there would be littl e rea son for law enfor ceme nt ag encie s to bother wi t h the formality of a war

rant. Fur thermore , the evidenc e comprising probable cause is particula rly within the knowledg e and c ontrol of the ar resting ag encie s.”) ( citations omitt ed).
241 S.W .3d at 526 (e mphasis added)

. 4 1
Id. at 523 (“B efor e trial, Ger ald had filed a motion to suppress the statements that he made 4 2 to I nvestig ator Powell. Although Ger ald did not requ es t a p retrial suppression hear ing, during I nvestig ator Powell's testimony at trial, Ger ald, citing his motion to supp ress, objected when I nvestig ator P owell bega

n to testify about hi s conver sation with Gera ld in the j ail. The judge then excused the jury and allowed the parties to question I nvestig ator Powell about th e ci rc u mstances surrounding the interview .”).