384 SW2D 345 - Lopez v. State

How this case has been cited

Cited by 96 later decisions — most recently February 2006 · most notably 162 W. Va. 467 - State v. Vance (1978), Myre v. State (1977)

18 federal appellate · 70 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

WOODLEY, Presiding Judge

¶1(concurring).

¶2The New York rule upheld in Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, but condemned in Jackson v. Denno, requires the trial judge to make a preliminary determination regarding a confession offered by the prosecution and exclude it if under no circumstances could it be deemed voluntary. However, under the New York rule, where the evidence presents a fair question as to its voluntariness, as where certain facts bearing on the issue are in dispute or where reasonable men could differ over the inference to be drawn from undisputed facts, the judge “must receive the confession and leave to the jury, under proper instructions the ultimate determination of its voluntary character and also its truthfulness.” If an issue of coercion is presented, the judge may not resolve conflicting evidence or arrive at his independent appraisal of the voluntariness of the confession one way or the other. These matters he must leave to the jury.

¶3The Texas procedure followed in appellant’s trial is similar to the New York rule in that the trial judge is not bound to resolve conflicting evidence bearing on the voluntariness of the confession before he admits it in evidence to the jury. It follows that the Texas rule does not meet the test adopted by the Supreme Court in Jackson v. Denno.

¶4In Jackson v. Denno the Supreme Court requires a procedure “fully adequate to insure a reliable and clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which' the voluntariness issue may depend.” The state is left free to say whether the issue of voluntariness is to be resolved by the trial judge or another judge, or by another' jury (but not the convicting jury). This would include the orthodox or common law rule under which the trial judge himself solely and finally determines the voluntariness of the confession.

¶5This Court has not been granted rule making power. The procedure suggested in the majority opinion is deemed adequate to meet the test laid down by the Supreme Court without otherwise disturbing the practice in this state regarding the submission of disputed fact issues to the jury.