¶1concurring.
¶2The genesis of Article 38.23, Y.A.C.C.P., is former article 727a, derived from Acts 1925, 39th Leg., Ch. 49, p. 186, § 1 (Act).
¶3The Act was preceded by two significant judicial decisions: one, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914);
“The fact that there has been used against citizens of this State evidence obtained in violation of the constitution of the State, and that there is now no statute expressly forbidding the same, creates an emergency and an imperative public necessity....”
¶4Act, supra, § 2.
¶5Contrary to the notion expressed by Judge Miller in his concurring opinion at 1-*8012, that “mere absence from the Code does not serve to emasculate a doctrine that previously existed in the common law,” this Court would certainly be “superlegis-lating” (his term) to introduce a “doctrine” that was not incorporated explicitly or implicitly when in 1914 the Supreme Court created the federal exclusionary rule in Weeks, supra, or when in 1925 our Legislature created the statutory exclusionary rule in the Act. Judge Miller does not demonstrate that the “doctrine” was ever known to the common law of England, and by his own admission the Supreme Court did not adopt and apply it until 1984 in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
¶6Furthermore, the Act was designed to implement protections guaranteed first and foremost by Article I, § 9 of the Texas Constitution. See emergency clause, ante. The fact remains that Judge Miller has yet to cite any opinion of this Court construing Article 38.23 to admit exceptions to those protections, and unless and until there is one of significance, the rule of statutory construction for which his opinion opts, in n. 2, at 802, has no application.
¶7With those observations, I join the opinion and judgment of the court.
¶8. Weeks v. United States, supra, originated the exclusionary rule in federal courts, viz:
“We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States, acting under color of his office, in direct violation of the constitutional rights of the defendant; that having made seasonable application for their return, which was heard and passed on by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused, and that the court should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think prejudicial error was committed."
¶9Id.,232 U.S. at 398, 34 S.Ct. at 346, 58 L.Ed. at 657 (emphasis here and throughout this opinion is mine unless otherwise indicated).
¶10. "We believe that nothing in section 9, art. 1 of our Constitution, supra, can be invoked to prevent the use in testimony in a criminal case of physical facts found on the person or premises of one accused of crime, which are material to the issue in such case, nor to prevent oral testimony of the fact of such finding which transgresses no rule of evidence otherwise pertinent.
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[W]hen the question is evidence of the possession of the accused of any property whose custody, ownership, or creation by him gives it weight in solving a crime, the method or manner by which such proferred testimony came before the court cannot be raised by any attempted application of section 9, art. 1, supra, but may only be determined by rules of evidence which are general and have become fixed in the wisdom of the courts of all civilized countries. If there be sound objection to testimony otherwise material which has been found on the person or in the possession or home of the accused, such objection must rest on some better reason than that the accused did not consent to its taking or to the entry of such premises."
¶12. The same Legislature passed a related bill, section 1 of which reproduced Article I, § 9; section 2 made it a penal offense for “any person or peace officer, or state ranger, to search *801the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law;" section 3 authorized a fine not to exceed $500, or confinement for not more than six months, or both. The emergency clause relied on “The fact that the people are not secure in their persons, homes, papers and possessions from unlawful and unreasonable seizures and searches[.]” Acts 1925, 39th Leg., Ch. 149, p. 357.
¶13That bill became former articles 4a and 4b, C.C.P.1925. It was repealed in 1929, however. But it has been noted that "despite the flood of reversals under former article 727a, the legislature refused to repeal the exclusionary rule and instead reenacted it with only a minor narrowing of its scope.” Dawson, Stater-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 TexX.Rev. 191, at 201-202.
¶14concurring.
¶15The 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.
¶16Admittedly, 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 did
¶17As 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.
¶18771 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.
¶19Additionally, 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 Millerare among the Texas cases to which the High Court was no doubt referring.
¶20Appropriately 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.
¶21Therefore, I respectfully concur only with the result the majority’s opinion reaches this day.
¶22. 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.
¶23Tex.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.
¶24. 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.
¶25. 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.).