White v. State

Full title: Brian Jason WHITE, Appellant v. The STATE of Texas

Court: Court of Criminal Appeals of Texas.

Date published: Jun 13, 2018

549 S.W.3d 146 (Tex. Crim. App. 2018)

Opinion

NO. PD–0442–17

06-13-2018

Brian Jason WHITE, Appellant v. The STATE of Texas

Kyle Therrian, McKinney, for Brian Jason White. Emily Johnson–Liu, for The State of Texas.

Kyle Therrian, McKinney, for Brian Jason White.

Emily Johnson–Liu, for The State of Texas.

Richardson, J., delivered the opinion for a unanimous Court.

Appellant, Brian Jason White, was convicted of one count of engaging in organized criminal activity and one count of money laundering.¹ The trial court assessed his punishment at ten years imprisonment for each count, suspended for eight years of community supervision. The sentences were ordered to run concurrently, and White was ordered to pay restitution in the amount of $32,822.04. The Fifth Court of Appeals affirmed White's conviction.²

1 See Tex. Penal Code §§ 71.02(a), 34.01(a). White was tried jointly with codefendant, Ronald Robey, who was also found guilty of engaging in organized criminal activity and money laundering. Robey's punishment was also assessed at ten years' imprisonment, suspended for ten years of community supervision. The trial court ordered the sentences to run concurrently and ordered 180 days in jail as a condition of community supervision. The trial court also ordered Robey to pay restitution, along with White, in the amount of $32,822.04.

2 White v. State , No. 05-15-00819, 2017 WL 908787 (Tex. App.—Dallas Mar. 8, 2017).

The issue before us involves the admission of an audio recording of a conversation between White, his co-defendant Ronald Robey, and a third party named "Brandon." The trial court admitted the recording into evidence over White's objection that it was inadmissible under Texas Code of Criminal Procedure Article 38.23.³ White argued on appeal that the recording was inadmissible under Article 38.23 because the State failed to prove that the recording was legally obtained and not in violation of Texas Penal Code § 16.02 (illegal wiretapping).⁴ The court of appeals held that "the trial court was authorized in finding the admission of the recording was not barred by Article 38.23."⁵ We agree with this ultimate conclusion and therefore affirm the judgment of the court of appeals.

3 Tex. Code Crim. Proc. art. 38.23(a) provides, in pertinent part, that "[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas ... shall be admitted in evidence against the accused on the trial of any criminal case."

4 Tex. Penal Code § 16.02(b) prohibits a person from intentionally intercepting a "wire, oral or electronic communication," or intentionally disclosing or using the contents of a "wire, oral, or electronic communication" obtained in violation of this section. It is an affirmative defense to prosecution of such an offense if the person intercepting the communication is a party to it. Tex. Penal Code § 16.02(c)(4)(A).

5 White v. State , 2017 WL 908787 at *4.

BACKGROUND

Jason Earnhardt and his wife, complainants, were the sole owners of Earnhardt Restoration and Roofing ("ERR"). They had a business bank account at JP Morgan Chase. In May 2012, Earnhardt hired Ronald Robey as a sales manager to solicit business and hire salespeople to go door-to-door in neighborhoods that had been hail-damaged. Robey hired White and J.D. Roberts. All three signed a "project manager agreement," under which ERR agreed to pay the salesperson 50% of the net profit realized from each roofing job.

In June 2012, a storm hit Dallas and Collin Counties, causing extensive hail damage. Homeowners Mary Lou Thurman and Andrew McAdoo testified that in June 2012, White, on behalf of ERR, solicited business from them to fix their roofs. They each gave a check, payable to ERR, to White. Homeowners Inderjit Sethi, Siva Sankaramanch, and Jessica Carlton testified that in June and July 2012, J.D. Roberts, on behalf of ERR, solicited business from them to fix their roofs. They each gave a check, payable to ERR, to Roberts. All five checks totaled $32,822.04.

In late July 2012, Earnhardt became aware that some of ERR's customers had written checks that he had never received. Earnhardt also learned that ERR had customers he was not aware of. During that same time, ERR started receiving hundreds of calls and emails based on Craigslist ads that Earnhardt had not posted or authorized. As a result, Earnhardt had to shut down ERR's phone system. During that time, Robey had stopped coming to the office, and he had stopped communicating with ERR.

A man named "Brandon" contacted Earnhardt by telephone shortly thereafter. Brandon told Earnhardt that he worked as an IT person for Robey, White, and Roberts. Brandon sent Earnhardt a copy of a recorded conversation on which Robey, Brandon, and White can be heard talking about the Craigslist postings used to "blow the phones up" at ERR. Earnhardt contacted the police.

The police investigation revealed that on July 30, 2012, an assumed name certificate was filed in Collin County under the name Earnhardt Restoration & Roofing, and listing Robey, Roberts, and White as owners. They had all signed the certificate and used it to open bank accounts under ERR's name, listing the three of them as owners of the bank accounts. White, Robey, and Roberts then deposited customers's checks made out to ERR directly into the accounts. Earnhardt was unaware of these accounts and was never given access to them.

Robey, Roberts, and White were all charged with engaging in organized criminal activity and money laundering. White and Robey were tried together. Robey testified at their trial, but White did not. He admitted to entering into a partnership with Roberts and White to file the assumed name certificate, open the bank accounts, and deposit the ERR checks. Robey also admitted that he and Brandon had placed the fake Craigslist ads in order to shut down ERR's phones and prevent Earnhardt from finding out what they were doing. Brandon was not charged in connection with his involvement in these activities.

THE AUDIO RECORDING

On the first day of trial, the jury was selected and sworn. The jurors were then allowed to leave for the day and instructed to return the next morning. That afternoon, the trial court agreed to hear arguments on the issues raised in the defendants's motions in limine, one of which involved the admissibility of the audio recording. No witnesses were presented at this hearing. The State had indicated that it intended to present as evidence the audio recording Earnhardt received from Brandon and to use Earnhardt to authenticate the audio recording. Defense counsel⁶ objected, arguing that Earnhardt could not properly authenticate the recording, and that it was illegally obtained because Earnhardt was not a party to the conversation. Defense counsel asked the court to be able to take Earnhardt on voir dire at the appropriate time during trial in order to show that the recording was inadmissible. The State responded that Earnhardt would be able to identify the three voices on the recording, and that Earnhardt would testify that the recording was given to Earnhardt by Brandon, one of the three people heard in the recording. The trial court judge listened to the recording, and then continued the pretrial hearing. Defense counsel argued that there was "nothing to indicate on the recording itself that anyone was aware that the conversation was being recorded." The trial court judge responded by asking whether there was "anything that says that Brandon was not aware[,] like someone else reportedly gave it to Brandon?" Defense counsel answered that he did not "even know if Brandon is a real person's name or if that's just a made up name." The trial court judge observed that "somebody says Brandon on the audio." Defense counsel concluded his argument by objecting to the recording's admissibility based on the reason that "we don't know where the recording was created[;]" [w]e don't know when the recording was actually created[;]" "[a]nd there's certainly nothing on the recording itself that would suggest that the parties were aware they were being recorded." The trial court ruled that, "assuming the State lays the appropriate predicate," the recording would be admitted because the issues raised by the defense go "more to weight than admissibility."

6 White and Robey were each represented by their own defense attorney. However, when the attorney for Robey objected to the admission of the audio recording, White's counsel joined his objections.

When the State called Jason Earnhardt to the stand during the trial, he testified that in late July 2012, ERR started receiving hundreds of calls and emails based on fake Craigslist ads. He had to eventually shut down ERR's phone system because of these calls. Earnhardt testified that, shortly thereafter, he received a telephone call from Brandon, and that Brandon sent him a copy of an audio recording. Earnhardt testified that the three voices on the audio recording were Robey's, White's, and Brandon's. Earnhardt testified that he had worked with Robey and White and that they had "very distinct voices." Earnhardt also said that, although he had never met Brandon face-to-face, he recognized his voice as the person who had called him, who had identified himself as Brandon, and who had sent him this recording.

After the State offered the recording into evidence, the trial court then allowed defense counsel to take the witness on voir dire (the jury was not excused at that time). Defense counsel asked Earnhardt several questions regarding Earnhardt's knowledge of the recording and whose voices were on it. No evidence was elicited from Earnhardt indicating that the conversation was recorded by someone other than Brandon. Defense counsel then objected that the audio recording was hearsay, that the State had not established a proper foundation, and that it had not been established to be a "legally-obtained recording."⁷ Without any response from the State, the trial court overruled the defense objections and admitted the recording into evidence.

7 A surreptitiously recorded conversation may be considered to be illegally obtained evidence under the Texas Wiretap Statute (Texas Penal Code § 16.02 ). The Texas Wiretap Statute, Texas Penal Code § 16.02(b), provides that, "[a] person commits an offense if the person:

(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;

(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; ...

Tex. Penal Code § 16.02. However, it is an affirmative defense to such offense if the person intercepting the communication is a party to it or gave prior consent. Id.

Robey testified in his defense. He said that he did not know that he was being recorded, but he confirmed that the three voices on the recording were his, White's, and Brandon's. Robey also testified that, although he did not know at the time he was being recorded, he believed that Brandon had recorded the conversation. When asked who Brandon was, Robey responded:

He was supposed to provide Web site development or build a Web site for us. And that's not my specialty, Web sites and things. So, he was going to built [sic ] a Web site and Facebook and those kinds of things for our new company that we were trying to start.... I believe he was in Mexico. We were sending money orders to San Juan, Mexico to pay him.

Robey testified that he talked to Brandon "twice a day," and he believed that Brandon sent four recorded conversations to Earnhardt. On cross examination, Robey admitted that he and Brandon posted Craigslist ads, and that he "direct[ed Brandon] to post Craigslist ads to shut down Jason Earnhardt's phone system."⁸

8 Robey's testimony was that the Craigslist ads that they posted were false:

Q. Okay. So, this ad, for example, of remodeling a kitchen. Giving away old appliances. That's a lie, right?

A. Yes, sir.

Q. I mean, you weren't, were you?

A. No, sir.

Q. And you gave Jason's business number for that?

A. I don't remember exactly.

Q. You said you need someone to mow your yard. Is that true or is that a lie?

A. That may have been true.

Q. Okay. So, when you posted this ad, "Need someone to mow my yard," and then you list 972–855–8204, are there true statements in there or false statements?

A. I believe the phone number would be a false statement.

Q. Okay. "Looking to hire a babysitter for my three-year-old," true statement or false statement?

A. False statement.

Q. "Looking for a person or company to help me with my business cards," true statement or false statement?

A. False statement.

Q. "Help me move and I'll pay you, in Allen," true or lie?

A. False.

Q. "Just moved to the area, and I'm getting rid of these old appliances," true or lie?

A. That may be false.

On direct appeal, the court of appeals concluded that the audio recording was admissible, stating that, "[s]ince [A]ppellant never produced evidence of a statutory violation, the State never had the burden to prove that Brandon was the person who recorded the conversation. Therefore, the trial court was authorized in finding that the admission of the recording was not barred by Article 38.23."⁹ Because the court of appeals decided the case in the way that it did, the following issue was presented to us for review:

9 White v. State , 2017 WL 908787, at *6 (citing State v. Robinson , 334 S.W.3d 776, 779 (Tex. Crim. App. 2011) ).

Whether the proponent of evidence at trial has the burden of showing statutory compliance in response to an objection under Article 38.23 (the Texas Exclusionary Rule).

However, this issue cannot be resolved with a bright-line rule, particularly since the facts and circumstances in this case do not lend themselves to a bright-line rule. As explained below, in this particular case, regardless of who may have had the initial burden of proof—whether the defense had the burden to show statutory non compliance or the State had the burden to show statutory compliance—there was enough evidence in the record as a whole to support the trial court's decision to admit the recording into evidence. Therefore, as we explain below, although the court of appeals came to the right decision to affirm the conviction, it was unnecessary for the court of appeals to resolve the case on the basis that it did.¹⁰

10 Wilson v. State , 448 S.W.3d 418, 422 (Tex. Crim. App. 2014) ; Tong v. State , 25 S.W.3d 707, 711 (Tex. Crim. App. 2000) (noting that a conclusion not necessary to the holding of a case is dicta ); State v. Brabson , 976 S.W.2d 182, 186 (Tex. Crim. App. 1998) (referring to dicta as "unnecessary to [the Court's] ultimate disposition of" the case).

ANALYSIS

I.

As a "general" rule, if a party seeks to have evidence admitted¹¹ during trial, that party usually has the burden to prove that the evidence is admissible: "In our criminal justice system, the proponent of evidence ordinarily has the burden of establishing the admissibility of the proffered evidence."¹² The proponent of the evidence must identify to the trial court the basis of admissibility for the proffered evidence.¹³ "[O]ur statement from Vinson remains valid law in Texas."¹⁴

11 Under Texas Rule of Evidence 402, all "[r]elevant evidence is admissible unless any of the following provides otherwise:

• the United States or Texas Constitution;

• a statute;

• these rules; or

• other rules prescribed under statutory authority."

Tex. R. Evid. 402.

12 Vinson v. State , 252 S.W.3d 336, 340 & n.14 (Tex. Crim. App. 2008) ; see also Long v. State , 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (placing the burden on the prosecutor "as proponent of the evidence ... to satisfy each element of his predicate for admission of the mother's testimony pursuant to Art. 38.072"); Meador v. State , 812 S.W.2d 330, 333 (Tex. Crim. App. 1991) ("The proponent of the statement has the burden of showing ... that the statement does in fact meet the requirement of Rule 801(e)(2)(E)" of the Texas Rules of Criminal Evidence).

13 Reyna v. State , 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) ("It is not enough to tell the judge that the evidence is admissible.").

14 Pierson v. State , 426 S.W.3d 763, 771 (Tex. Crim. App. 2014) (holding that the appellant, as the proponent of the evidence, failed to carry his burden to establish its admissibility, and therefore the evidence was inadmissible).

However, under this general rule, the proponent's burden is not triggered "unless and until" the opponent of the evidence raises "a specific objection" to such evidence.¹⁵ It is only "[o]nce the party opposing the evidence objects ... [that] the proponent bears the burden of demonstrating its admissibility."¹⁶ In other words, once the party opposing the admission of evidence satisfies their burden of properly objecting,¹⁷ the proponent of the evidence must show, or must have satisfactorily shown, that they have carried their burden of demonstrating, by a preponderance of the evidence, that the evidence is admissible.¹⁸ In this case, defense counsel objected to the admission of the audio recording offered by the State. During the pretrial hearing on the defense's motion in limine, defense counsel argued that the audio recording was illegally obtained:

15 Vinson , 252 S.W.3d at 340 ; State v. Esparza , 413 S.W.3d 81, 86 (Tex. Crim. App. 2013) ("At trial, the proponent of scientific evidence is not typically called upon to establish its empirical reliability as a predicate to admission unless and until the opponent of that evidence raises an objection under Rule 702."); see also Cofield v. State , 891 S.W.2d 952, 954 (Tex. Crim. App. 1994) (In context of Rule 803(24) of the Texas Rules of Criminal Evidence, since the "appellant preserved error by raising an objection, the burden then became the State's to show that the evidence was admissible pursuant to some exception....").

16 Id. (quoting E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549, 557 (Tex. 1995) ).

17 As we recently noted in Thomas v. State , No. AP-77, 2018 WL 739093 (Tex. Crim. App. Feb. 7, 2018), "[t]he party opposing the evidence carries ‘the burden of objecting....’ " Id. at *42 (citing Hammock v. State , 46 S.W.3d 889, 894 (Tex. Crim. App. 2001) (citing Garcia v. State , 887 S.W.2d 862, 878 (Tex. Crim. App. 1994) ). This "burden" includes the obligation that the objection be "timely" and "state the grounds for the ruling sought by the complaining party with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context." Hallmark v. State , 541 S.W.3d 167, 179 (Tex. Crim. App. 2017) (citing Tex. R. App. P. 33.1(a)(1)(A) ).

18 Vinson , 252 S.W.3d at 340 (citing Idaho v. Wright , 497 U.S. 805, 816, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) ); see also , De La Paz v. State , 273 S.W.3d 671 (Tex. Crim. App. 2008) ("Once appellant objected to the admission of the notes under Crawford , the burden shifted to the State, as the proponent of that evidence, to establish that it was admissible under Crawford ." (citing Vinson , 252 S.W.3d at 340 ); see also Robinson , 334 S.W.3d at 782 (Cochran, J., concurring) (noting that, at trial, the State's burden to establish the admissibility of its evidence is by a preponderance of the evidence (citing Tex. R. Evid. 104(a) ) ); Vinson , 252 S.W.3d at 339–40 & n.14 (citing Alvarado v. State , 912 S.W.2d 199, 215 (Tex. Crim. App. 1995) ("The State, as the proponent of the evidence, had the burden of proving to the trial court, by a preponderance of the evidence, that ... testimony qualified as an adoptive admission under Rule 801(e)(2)(b).") ); Vasquez v. State , 411 S.W.3d 918, 920, n.11 (Tex. Crim. App. 2013) (noting that the State must prove by a preponderance of the evidence that the accused's statement was voluntary under Texas Code of Criminal Procedure Article 38.22 (citing Alvarado , 912 S.W.2d at 211 ) ); Cofield v. State , 891 S.W.2d 952, 954 (Tex. Crim. App. 1994) ("Since appellant preserved error by raising an objection to the hearsay, the burden then became the State's to show that the evidence was admissible pursuant to some exception to the hearsay rule."); Meador v. State , 812 S.W.2d 330, 333 (Tex. Crim. App. 1991) (holding that, when the State is the proponent of hearsay evidence, it has the burden of proving its admissibility under the hearsay rules by a preponderance of the evidence); cf. State v. Medrano , 127 S.W.3d 781, 787 (Tex. Crim. App. 2004) (holding that Kelly v. State , 824 S.W.2d 568, 573 (Tex. Crim. App. 1992) did not overrule Zani v. State , 758 S.W.2d 233 (Tex. Crim. App. 1988), and continuing to hold that the proponent of expert scientific testimony has the burden to show its relevance and reliability by clear and convincing evidence in order to be admissible); but see Medrano , 127 S.W.3d at 788 (Womack, J., concurring) & Medrano , 127 S.W.3d at 792 (Cochran, J., concurring, joined by Keller, P.J. and Holcomb, J.) (noting that the burden of proof to show admissibility of scientific evidence should be by a preponderance of the evidence, not clear and convincing).

It's clearly a surreptitiously recorded conversation between two people or three people that the witness was not a party to. And so he can't consent to it regardless of where and when the recording took place. It's the equivalent of a wiretap, Your Honor, frankly.... [W]e don't know where the recording was created. We don't know when the recording was actually created. And there's certainly nothing on the recording itself that would suggest that the parties were aware they were being recorded.¹⁹

19 Defense counsel also argued that the audio recording was not properly authenticated. However, the issue of authentication, and the court of appeals's analysis of authentication under Rule 901(a), is not before us.

At that time defense counsel did not specifically argue that the evidence was inadmissible under Article 38.23. However, his pre-trial argument that the recording was "the equivalent of a wiretap" was sufficient to alert the trial court and the State that defense counsel was going to oppose the admission of the recording because he claimed it was illegally obtained.

When the State offered the evidence at trial, defense counsel attempted, during his voir dire of the complainant, to establish that the recording was illegally obtained. We note that, when a party seeks to establish the absence of something, such as the lack of a warrant or, as in this case, the absence of consent, this can be done by questioning a witness. After defense counsel questioned Earnhardt in an attempt to establish the illegality of the recording, he again objected to the admission of the recording: "I'll object as to hearsay. I don't think they've established a proper foundation, and I don't think that they've established that it was a legally-obtained recording as well, Your Honor." Again, although defense counsel did not specifically cite to Article 38.23 in his objection, the record made it clear that the trial court understood the legal basis for the objection.²⁰ The trial court overruled the objections and admitted the recording. Defense counsel did not request an Article 38.23 jury instruction.²¹ II.

20 Ford v. State , 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) (holding that "a party need not spout ‘magic words’ or recite a specific statute to make a valid objection" (citing Rivas v. State , 275 S.W.3d 880, 887 (Tex. Crim. App. 2009) ) ).

21 In Holmes v. State , 248 S.W.3d 194 (Tex. Crim. App. 2008), we observed that whether evidence is inadmissible because it was illegally obtained, and whether evidence can be considered by a jury in determining guilt are "two distinct issues: One is a legal question of admissibility for the judge and the other is a question of disputed fact for the jury's consideration and resolution." Holmes , 248 S.W.3d at 196 (citing Madden v. State , 242 S.W.3d 504, 510 (Tex. Crim. App. 2007) ). In Pierce v. State , 32 S.W.3d 247, 251 (Tex. Crim. App. 2000) (footnotes and citations omitted), we explained that the two sentences in Article 38.23(a) speak to two different concepts:

The first sentence speaks to the admissibility of evidence: "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." The admissibility of evidence is a matter for the court. The decision to exclude evidence could be determined by a ruling of law, a finding of fact, or both. The question of admissibility could be raised by an objection when the evidence is offered. Since 1966 it has been possible to raise the question by a motion to suppress evidence, which can be filed, presented, heard, and ruled on before the trial begins.

The second sentence of the statute speaks to the jury instruction: "In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such evident, the jury shall disregard any such evidence so obtained." This sentence can operate only if the trial court has admitted evidence, and only if there is a contested issue of fact about the obtaining of the evidence. This has been our holding from the earliest days of the statute, and it is our holding today. There is no issue for the jury when the question is one of law only.

"[T]he central issue on an article 38.23 instruction is not the admissibility of the evidence, but rather, the evidence's consideration by the jury." Holmes v. State , 248 S.W.3d at 198 (emphasis in original). "This Court has long held that there is a definite distinction between the admissibility of evidence under Article 38.23 (which is decided solely by the trial judge) and the jury's role under Article 38.23 in considering evidence that has been admitted." Id. at 199.
In Holmes , we expressly approved of our unpublished opinion in Hromadka v. State , No. 1329-00, 2003 WL 1845067 (Tex. Crim. App. 2003). Holmes , 248 S.W.3d at 196 ("Today we affirm the validity of [Hromadka and similar] holdings"). In Hromadka , this Court held that the issue of admissibility of evidence under Article 38.23 is independent of the issue given to the jury in the charge, which is whether the evidence may be considered in reaching a verdict. Hromadka , 2003 WL 1845067 at *1. Article 38.23(a) requires an instruction only when " ‘the legal evidence raises an issue’ as to whether the evidence objected to was illegally obtained." Id. at *2. Thus, it is clear that an Article 38.23 instruction is required only if there is a factual dispute about how the evidence was obtained. Renteria v. State , 206 S.W.3d 689, 704 (Tex. Crim. App. 2006) (citing Garza v. State , 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) ).
As we explain in this opinion, defense counsel set out his objection to the recording and attempted to produce evidence of a factual dispute regarding the legality of the recording through his cross examination and voir dire examination of Earnhardt. The State had already established, through Earnhardt's testimony, that Brandon's voice was on the recording and that Brandon sent Earnhardt the tape. Defense counsel was unable to establish a factual dispute since Earnhardt's testimony did not change, and it remained uncontested. Therefore, the trial court correctly held that the evidence of the recording was admissible. And, without a factual dispute about how the evidence was obtained, even if defense counsel had requested an Article 38.23 instruction, he would not have been entitled to one, particularly since Robey admitted that Brandon recorded the conversation and provided the tape to Earnhardt. Therefore, White did not establish that there was an issue of fact in dispute because he presented no evidence controverting the evidence presented by the State. See Issue of Fact , Black's Law Dictionary (10th ed. 2014) ("A point supported by one party's evidence and controverted by another's.").

Although the proponent of evidence ordinarily has the burden to establish admissibility, it has long been held that when the defendant has filed a motion to suppress challenging the admissibility of evidence under the Fourth Amendment, that defendant has the burden to produce some evidence at the hearing on the motion to suppress in order to prove that the evidence was illegally obtained.²² Even though it has been observed that the burden shouldered by the defendant in a motion to suppress hearing is different from the State's burden to prove admissibility at trial,²³ this Court has said before that "[a] ‘motion to suppress’ evidence is nothing more than a specialized objection to the admissibility of that evidence."²⁴ In fact, in 1977, in Roberts v. State , this Court explained that,

22 See State v. Klima , 934 S.W.2d 109, 111 (Tex. Crim. App. 1996) ("In the instant case appellee, by bringing the motion to suppress, bore the burden of establishing all of the elements of her Fourth Amendment claim."); State v. Woodard , 341 S.W.3d 404, 412 (Tex. Crim. App. 2011) ("When a defendant asserts a search and seizure violation under the Fourth Amendment, the defendant bears the burden of producing evidence to rebut the presumption of proper conduct by law enforcement. A defendant can satisfy this burden with evidence that the seizure occurred without a warrant."); Abney v. State , 394 S.W.3d 542, 547 (Tex. Crim. App. 2013) ("On a motion to suppress evidence, the defendant bears the initial burden of producing some evidence that rebuts the presumption of proper police conduct. Once the defendant meets this burden by establishing that the search or seizure occurred without a warrant, the burden shifts to the State to prove the search or seizure was prompted by reasonable suspicion that an individual was violating the law."); Delafuente v. State , 414 S.W.3d 173, 176 (Tex. Crim. App. 2013) ("In a hearing on a motion to suppress for violation of Fourth Amendment rights, a defendant must offer evidence that rebuts the presumption of proper police conduct, such as by alleging that the search or seizure was executed without a warrant.").

23 See State v. Robinson , 334 S.W.3d 776, 780–82 (Tex. Crim. App. 2011) (Cochran, J., concurring) ("Mr. Robinson contends that the State has the burden to show compliance with the State statute concerning the blood draw. Indeed it does—at trial. As the proponent of evidence at trial, the State must fulfill all required evidentiary predicates and foundations. Thus, at trial, the State will be required to offer evidence that the blood was drawn by a qualified person before evidence of the blood, the blood test, and the blood test results are admissible. Its burden at trial is to establish the admissibility of its evidence by a preponderance of the evidence.").

24 Galitz v. State , 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) (op. on reh'g); see also Ford v. State , 305 S.W.3d 530, 535 (Tex. Crim. App. 2009) (discussing the trial judge's "important ‘gatekeeping’ role" to resolve questions of admissibility of evidence, "regardless of whether those questions are determined in a pre-trial hearing or at some time during trial.").

The defendant's counsel may either file a pretrial motion to suppress evidence or he may wait until the trial on the merits and object when the alleged unlawfully obtained evidence is offered. The trial court, to determine whether there is probable cause for an arrest, has the option of either hearing a motion to suppress the evidence prior to trial or of the [sic ] waiting until the defendant's counsel makes an objection at the trial on the merits when the alleged unlawfully obtained evidence is offered. Whether the issue of the unlawful arrest is presented in a pretrial hearing to suppress

or during the trial on the merits, the State has the burden of showing that there was probable cause for a warrantless arrest. Contrary to the appellant's argument there is no difference in the State's burden of proof whether the issue is presented at a pretrial motion to suppress hearing or at the trial on the merits.²⁵

25 Roberts v. State , 545 S.W.2d 157, 158–59 (Tex. Crim. App. 1977) (citations omitted).

In equating the State's burden at a pretrial motion to suppress to its burden to prove admissibility during trial, this Court in Roberts evidently presupposed that the defendant had already met the initial burden of establishing the absence of a warrant. Thus, we can arguably interpret Roberts as supporting the conclusion that, in a case involving a warrantless arrest, search, or seizure, it would appear that, whether the defendant brings a pre-trial motion to suppress, or objects at trial , the defendant would still have to initially prove that there was no warrant.²⁶

26 See also Holmes v. State , 248 S.W.3d at 199 (noting that, "The defendant may challenge the admissibility of evidence in either of two ways: (1) he may object to the admission of the evidence at the time it is offered at trial and request a hearing outside the presence of the jury; or (2) he may file a pretrial motion to suppress evidence and have it heard and ruled upon before trial. Trial judges ‘have an obligation to entertain evidence and argument on exclusionary rule objections and to independently and definitively resolve questions of law and fact presented by such objections.") (emphasis in original).

In this case, citing to this Court's decision in State v. Robinson ,²⁷ the court of appeals followed the rule regarding who has the burden of proof in a motion to suppress hearing instead of following the general rule regarding who has the burden to establish admissibility at trial, and it assigned the same burden of proof to White as if he had brought a pre-trial motion to suppress. In Robinson , this Court held that the defendant seeking to have evidence suppressed had the burden of producing evidence of "a statutory violation" before the burden shifted to the State to prove statutory compliance. In Robinson , because the defendant "never produced evidence of a statutory violation," this Court held that the trial court "erroneously placed the burden of proving statutory compliance on the State."²⁸ In this case, following Robinson , the court of appeals held that, since White "never produced evidence of a statutory violation, the State never had the burden to prove that Brandon was the person who recorded the conversation."²⁹

27 State v. Robinson , 334 S.W.3d 776 (Tex. Crim. App. 2011).

28 Id. at 778 ; see also United States v. Evans , 572 F.2d 455, 486 (5th Cir. 1978) ("The burden is on the movant to make specific factual allegations of illegality, to produce evidence, and to persuade the court that the evidence should be suppressed.").

29 White , 2017 WL 908787 at *4 (emphasis added).

III.

We agree with the court of appeals's holding that the trial court did not err in admitting the audio recording. But it was unnecessary for the court of appeals to rely on Robinson to support its holding. Nevertheless, while we may not agree with the court of appeals's blanket adoption of Robinson as the controlling authority under these facts, we are not prepared to distinguish Robinson and similar cases³⁰ from this case simply because those cases were decided in the context of a pre-trial motion to suppress.³¹ This case can instead be decided based on the evidence in the record as a whole, not based on who had the initial burden of proof. We hold that the preponderance of the evidence before the trial court established that the audio recording was admissible.

30 See note 22, supra .

31 See also Romo v. State , 577 S.W.2d 251, 252 (Tex. Crim. App. 1979) ("[A] judge is often not in a position to decide on the admissibility of evidence prior to the beginning of trial.").

During the trial, the State presented evidence, through Earnhardt's testimony, that Earnhardt received a call from Brandon. Earnhardt testified that Brandon gave him the copy of the recording. He identified Brandon's voice on the recording because he had talked to him on the phone. This testimony was uncontroverted. No evidence was elicited from Earnhardt, or from any other witness, indicating that the conversation between White, Robey, and Brandon was recorded by someone other than Brandon, or that the recording was made without Brandon's consent, or that the recording was furnished to Earnhardt by anyone other than Brandon.

By the time defense counsel objected to the admission of the recording during Earnhardt's testimony, the State had already presented enough evidence to prove by a preponderance of the evidence that Brandon had recorded the conversation, and that evidence supported the State's position that the recording had been legally obtained. White presented no additional evidence to contradict the evidence that had been presented by the State. In fact, the record contains evidence elicited from the defense confirming that Brandon had recorded the conversation and sent the recording to Earnhardt because Robey admitted that fact when he testified for the defense.³²

32 When asked by his own attorney (who had previously objected to the admission of the recording) whether he knew who recorded the conversations, Robey testified as follows:

Q. You didn't know you were being recorded, of course?

A. No, sir.

Q. Who was it that recorded that?

A. I think his name was Brandon.

* * *

Q. Did you have lots of conversations with this guy?

A. Every day. Twice a day. Things like that ..

Q. Were there other—to your knowledge were there other recordings?

A. To my knowledge there was four different recordings that were sent to Jason [Earnhardt ].

* * *

When Robey was asked why he and White were asking Brandon to help them post the false Craigslist ads, Robey admitted the following:

Q. You were trying to make sure he [Earnhardt] didn't find out what you were doing. Isn't that right?

A. Yes, sir.

Q. And you knew if he found out what you were doing, there was a chance he would intervene. Is that right?

A. For sure.

Q. Which when he did find out, he did intervene?

A. For sure.

In light of the evidence that was presented by the State, supporting its position that the recording was legally obtained, and without any controverting evidence presented by White to support his position that the recording was illegally obtained in violation of § 16.02, we hold that the evidence presented by the State was sufficient to establish, by a preponderance of the evidence, that the audio recording was admissible.³³ Thus, the trial court judge did not abuse her discretion in admitting the audio recording into evidence. We therefore affirm the judgment reached by court of appeals.

33 The other issue raised challenging the admissibility of the recording—the issue of authentication of the audio recording under Rule 901(a)—was resolved by the court of appeals. That issue is not before us.

Keller, P.J., filed a concurring opinion in which Keasler, Yeary, and Keel JJ., joined.

Keller, P.J., filed a concurring opinion in which Keasler, Yeary, and Keel, JJ., joined.

The court of appeals based its decision in this case on our opinion in Robinson .¹ Appellant says the present case is different because Robinson involved a pre-trial motion to suppress and this case involves evidence offered at trial. This distinction is superficially appealing but it is, in my opinion, ultimately untenable. There is a better way to determine who has the burden in questions of admissibility of evidence. I write separately to explain my view.

1 State v. Robinson , 334 S.W.3d 776 (Tex. Crim. App. 2011).

In Vinson v. State , this Court said that "the proponent of evidence ordinarily has the burden" to establish its admissibility.² The use of the word "ordinarily" indicates that there are exceptions to this general rule, and so, it is not always true that the proponent of the evidence has the burden at trial to prove its admissibility. Sometimes the burden regarding admissibility falls on the opponent of the evidence.

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

The problem with a statement about the burden being on a particular party to prove that evidence is admissible or inadmissible is that it oversimplifies the issue. Admissibility of a particular item of evidence depends on what conditions for admissibility are established by a rule of evidence, a statute, or a constitutional provision. Who has the burden at trial to prove a particular condition for admissibility depends on what type of issue is being litigated. In general, if the issue relates to a rule of admission , it is indeed the proponent's burden to prove the conditions for admissibility.³ If the issue relates to a rule of exclusion , however, generally speaking, it is the opponent's burden to prove the conditions for exclusion. As we shall see, though, the analysis can become quite complicated, primarily because rules of exclusion often have exceptions, and those exceptions generally function as rules of admission, on which the proponent has the burden of proof. And the exceptions are often the real bone of contention between the parties.

3 There may be exceptions to that principle, as I shall explain later.

Before I get to the nuts and bolts of how I believe this works, I mention two caveats. First, the proponent of evidence does not have a burden to do anything until the opponent⁴ articulates a reason to believe that the evidence is inadmissible.⁵ After that, the proponent's burden is limited to providing a response to that reason.⁶ Second, there are actually two types of burdens of proof: the burden of production and the burden of persuasion.⁷ The burden of production is the burden to produce evidence sufficient to support a finding that the condition in question is true.⁸ The burden of persuasion is the burden—sometimes in the face of controverting evidence—to convince the finder of fact that the condition in question is true.⁹ The burdens of production and persuasion are sometimes, but not always, on the same party.¹⁰ Because trial courts are given great deference in deciding whether a party has met the burden of persuasion,¹¹ the burden appellate courts are generally concerned with in determining the admissibility of evidence is the burden of production.

4 Or in some situations, the trial court.

5 State v. Esparza , 413 S.W.3d 81, 86 & nn.20–21 (Tex. Crim. App. 2013).

6 The issue is more nuanced from the appellate point of view. See id. at 85–86 (discussing Calloway rule, which allows prevailing party at trial to prevail on appeal on a theory not raised at trial but recognizing an exception to that rule when it would work a manifest injustice on the appealing party by depriving the party of the opportunity to develop a complete factual record with respect to the legal theory that was not presented to the trial court).

7 Id. at 88.

8 Williams v. State , 851 S.W.2d 282, 286 (Tex. Crim. App. 1993) ("[W]hether an accused voluntarily released his victim alive and in a safe place ‘is not submitted to the jury unless evidence is admitted supporting’ a finding that he did. In other words, the accused has the threshold burden of production.") (citation omitted).

9 Alford v. State , 806 S.W.2d 581, 585 (Tex. App.—Dallas 1991), affirmed , 866 S.W.2d 619 (Tex. Crim. App. 1993) ("The burden of persuasion is the burden of persuading the trier of fact that the fact is true.") (citing McCormick on Evidence § 336, at 947 (3d ed. 1984) ).

10 See Esparza , 413 S.W.3d at 88 (burden of production and persuasion on State to establish scientific reliability of its proffered evidence; burden of production and persuasion on defendant with respect to whether the evidence was suppressible as illegally obtained under the Fourth Amendment); State v. Klima , 934 S.W.2d 109, 112 (Tex. Crim. App. 1996) (Clinton, J., concurring) (burden of production and persuasion on defendant to establish reasonable expectation of privacy in the place searched).

11 See Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (referring to "the long-standing rule that appellate courts should show almost total deference to a trial court's findings of fact especially when those findings are based on an evaluation of credibility and demeanor").

As I have indicated earlier, for rules of admission, the burden is generally on the proponent to show that the evidence is admissible.¹² For example, the proponent has at least an initial burden to demonstrate that the proffered evidence is relevant¹³ and authentic.¹⁴ When expert testimony is at issue, the proponent has the burden to establish reliability.¹⁵

12 Sometimes that burden is only one of production. See infra at n.14 (authentication). Other times, the proponent has the burden of both production and persuasion. See infra at n.15 (expert testimony).

13 See Tex. R. Evid. 401(a) ("Evidence is relevant if ... it has any tendency to make a fact more or less probable than it would be without the evidence."); Bigby v. State , 892 S.W.2d 864, 883 (Tex. Crim. App. 1994) ("To support the admission of evidence of escape from custody or flight it must appear that the escape or flight have some legal relevance to the offense under prosecution" but once that is established "the burden shifts to the defendant to show affirmatively the escape and flight directly connected to some other transaction and further that it was not connected with the offense at trial."); Chambers v. State , 866 S.W.2d 9, 26–27 (Tex. Crim. App. 1993) ("[T]he burden of showing the relevance of particular evidence to the issue of bias rests on its proponent."); Hickey v. State , 45 Tex. Crim. 297, 302, 76 S.W. 920, 921 (1903) ("Before evidence in regard to the bullet alleged to have been found upon the ground could be introduced, it must be shown to have some connection, or in some manner tend to solve some issue in the case. In other words, it must be in some way connected with or relevant to the matters at issue."); U–Haul Int'l v. Waldrip , 380 S.W.3d 118, 135 (Tex. 2012) ("Waldrip did not carry his burden of showing the relevance of this evidence."). See also Tex. R. Evid. 402.

14 Tex. R. Evid. 901 ("To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.").

15 Esparza, 413 S.W.3d at 86, 88. See Tex. R. Evid. 702.

For rules of exclusion, however, the burden is generally on the opponent of the evidence to show that the evidence is inadmissible.¹⁶ For hearsay, for example, which is a rule of exclusion, we have held that the opponent of the evidence bears the burden to show that evidence is hearsay,¹⁷ but once hearsay is shown, the proponent bears the burden of establishing an exemption or exception to the hearsay rule.¹⁸ The cases are uniform that, if the issue is whether certain evidence meets the basic definition of hearsay ,¹⁹ the opponent of the evidence has the burden.²⁰ As mentioned above, it is frequently the case with rules of exclusion that the real dispute is over whether a certain exception applies. This is true with hearsay. Although the initial burden is on the opponent to show that the evidence is hearsay, the debate is often about whether an exemption or exception applies that would make evidence admissible—an issue on which the proponent has the burden. For constitutional rules that operate to exclude evidence, the burdens of proof are allocated similarly, with the opponent being required to show factors favoring exclusion and the proponent only then being required to show factors favoring admission. For Fourth Amendment issues, the defendant who seeks to suppress evidence "has the burden of producing evidence that rebuts the presumption of proper police conduct."²¹ One method of doing this would be to produce evidence of a search or seizure and the absence of a warrant.²² The defendant also has the burden of showing that he has standing to contest the search or seizure, such as a reasonable expectation of privacy in the place searched.²³ If the defendant rebuts the presumption of proper police conduct and also shows standing, then and only then does the State have the burden to show the reasonableness of the search or seizure.²⁴ Likewise, for Fifth Amendment Miranda ²⁵ claims, the defendant has the burden to show that his statement was the product of custodial interrogation.²⁶ Only after that is done does the State have the burden to show that the proper warnings were given in compliance with Miranda .²⁷

16 Our caselaw regarding Tex. R. Evid. 403 provides an example of an exception to this distinction, in that we have declined to place the burden on either party with respect to the rule as a whole. Montgomery v. State , 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh'g). However, if the caselaw factors used to evaluate cases under the rule are viewed as part of the rule, our treatment of those factors would generally be consistent with the framework I have set out. We have suggested that it is appropriate to require the proponent to demonstrate probative value and need for the evidence and require the opponent to demonstrate prejudice. Id. ("The evidence may be proffered long before the opponent is capable of gauging the proponent's ‘need’ for it.... In that event he would be ill equipped to ‘demonstrate’ whether at least one major factor in the analysis militates for or against exclusion. Indeed, it is the proponent of the evidence who is in the best position to advance the relative probativeness of his evidence.... The court would do well to inquire of the opponent what his view of the prejudice is. On the other hand, the court should ask the proponent to articulate his need.").

17 Edwards v. State , 561 S.W.2d 834, 837 n.1 (Tex. Crim. App. 1977) ("The burden of showing this testimony was hearsay was on the appellant."); Beal v. State , 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 case at bar the source of the witness' knowledge is not shown. It was therefore incumbent upon appellant to reinforce his objection by demonstrating to the court that such testimony was in fact hearsay. This he failed to do."). See also Martinez v. State , 22 S.W.3d 504, 508 (Tex. Crim. App. 2000) ("Since the trial court implicitly found Rudd qualified as an expert, the State had no burden to invoke an exception to the hearsay rule. Rudd was free to offer his opinion based on Pena's report."); Compton v. State , 607 S.W.2d 246, 252 (Tex. Crim. App. 1980) ("Because neither the check nor its content constituted hearsay evidence, there was no burden upon the State to establish its admissibility as an exception to the rule prohibiting hearsay.").

18 Taylor v. State , 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008) ("Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible in spite of its hearsay character."); Martinez v. State , 178 S.W.3d 806, 815 (Tex. Crim. App. 2005) ("Appellant objected to the testimony as hearsay; it was hearsay, and thus his objection was both proper and sufficient. If the testimony fit some exception or exemption to the hearsay rule (or if the evidence was not being offered for the truth of the matter asserted) the State, as the proponent of the evidence, had the burden of demonstrating the applicability of that exemption or exception.").

19 See Tex. R. Evid. 801(d). Statements classified in Rule 801(e) as "not hearsay" are considered "exemptions," on which the proponent has the burden of proof.

20 See supra at n.17.

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

22 Abney v. State , 394 S.W.3d 542, 547 (Tex. Crim. App. 2013) ; State v. Woodard , 341 S.W.3d 404, 414 (Tex. Crim. App. 2011) ("Until Woodard established that he was seized without a warrant, he retained the burden; without proof of a seizure the burden did not shift."); Robinson , 334 S.W.3d at 779 ("[T]he State stipulated to the warrantless arrest, thereby relieving appellee from the burden of rebutting the presumption of proper police conduct.").

23 Handy v. State , 189 S.W.3d 296, 299 & n.2 (Tex. Crim. App. 2006) ; Klima , 934 S.W.2d at 110–11.

24 Abney , 394 S.W.3d at 547 ; Robinson , 334 S.W.3d at 779.

25 Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

26 Herrera v. State , 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

27 Id. I am not attempting to exhaustively describe the various constitutional rules and to whom the burden of proof is allocated but to illustrate how different parties can have burdens on different issues relating to a particular constitutional rule.

With this background, I consider Article 38.23. The statute is framed as a rule of exclusion: "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."²⁸ When the Article 38.23 allegation is that evidence was obtained in violation of a constitutional provision, we would look to the jurisprudence associated with that provision to determine the allocation of burdens, though it can generally be said that the defendant 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 compliance with constitutional requirements.

28 Tex. Code Crim. Proc. art. 38.23(a).

When the Article 38.23 allegation is that evidence was obtained in violation of a statute, we would look to the particular statute to determine who has what burdens of proof. With any statute, the defendant must at least produce some evidence of a statutory violation.²⁹ When the statute at issue is one that proscribes a criminal offense, such as the statute before us,³⁰ the allocation of burdens is usually easy to determine. The defendant has essentially the same burdens that the State would have in a prosecution under the statute, except that the standard of proof would be a preponderance of the evidence instead of beyond a reasonable doubt. That is, anything that is an element of the offense is something the defendant has the burden to prove.³¹ Anything that is an affirmative defense is something the State has the burden to prove.³² Anything that is a true defense is something on which the State has the burden of production and the defendant has the burden of persuasion.³³

29 Robinson , 334 S.W.3d at 779.

30 Tex. Penal Code § 16.02.

31 See id. § 2.01 (State required to prove elements of offense in a criminal prosecution).

32 See id. § 2.04(d) (defendant required to prove elements of affirmative defense in a criminal prosecution).

33 See id. § 2.03(c), (d) (defendant has burden of production, State has burden of persuasion in a criminal prosecution).

So, the defendant who claims that evidence is inadmissible under Article 38.23 because it was obtained in violation of Penal Code § 16.02 (unlawful interception of communications) is in the same position as a prosecutor charging a crime under § 16.02, except that the defendant only has to prove the crime by a preponderance of the evidence. The elements that the State would have to prove in a § 16.02 prosecution are elements the defendant has to prove to establish a statutory violation for the purpose of excluding evidence under Article 38.23. The affirmative defense of consent-by-a-party-to-the-conversation is then something the State has to prove.

I am aware of only one citation that supports the notion that the burden on admissibility issues depends solely upon the stage of the proceedings at which an issue is litigated: the concurring opinion in Robinson .³⁴ But it is just a concurring opinion, not adopted by this Court, and there is caselaw that seems to be to the contrary.

34 See Robinson , 334 S.W.3d at 780–82 (Cochran, J., concurring).

In Russell v. State , we said, "Texas statutory law is silent as to how the burden of proof is distributed in a motion to suppress. This Court, therefore, seemingly has adopted, at least in some respects, the rules followed by federal courts in distributing the burdens of proof."³⁵ In support of the holding that the movant in a motion to suppress had the burden to defeat the presumption of proper police conduct, we cited Mattei v. State , which in turn relied upon federal cases.³⁶ In Mattei , the defendant had filed a motion to suppress, but the suppression issue was litigated at trial.³⁷ We quoted extensively from the Fifth Circuit decision of Rogers v. United States ,³⁸ which placed the burden on a defendant who seeks the protection of an exclusionary rule of evidence: "When a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is his task to prove his case."³⁹ The discussion continued by focusing on the nature of the admissibility issue as the reason for how the burden of proof was allocated, and not on whether the motion was litigated before trial or during trial.⁴⁰

35 717 S.W.2d 7, 9 n.5 (Tex. Crim. App. 1986).

36 Id. at 9.

37 455 S.W.2d 761, 763 (Tex. Crim. App. 1970) ("At this point appellant's counsel, who had prepared a motion to suppress and objection to the search, requested voir dire examination of the witness out of the presence of the jury.... Following the voir dire examination of Officer Shelton there was a conference held at the bench between counsel, and the court announced to the jury: ‘—there is a certain witness in connection with this motion that is not here. He is up at Fort Hood or somewhere around Killeen, and it has necessitated a recess for forty-five minutes until they can get him here because we can't proceed with the motion until we do, so consequently we will recess at this time for forty-five minutes.—’... At the conclusion of the hearing on appellant's motion to suppress the court ruled: ‘The defendant's motion to suppress is denied. Bring in the jury, Mr. Sheriff.’ ").

38 330 F.2d 535 (5th Cir. 1964).

39 Mattei , 455 S.W.2d at 766 (quoting Rogers , 330 F.2d at 542 ).

40 Id. (quoting Rogers , 330 F.2d at 542–43 ) ("It is true, however, that in asserting an illegal arrest the defendant must satisfy this burden by showing that the arrest was made without a warrant. While an arrest pursuant to a warrant is prima facie evidence of probable cause, the prosecutor should be forced to come forward with evidence of probable cause in the absence of a warrant. Without such a rule there would be little reason for law enforcement agencies to bother with the formality of a warrant. Furthermore, the evidence comprising probable cause is particularly within the knowledge and control of the arresting agencies.") (citations omitted).

More recently, this Court held in Herrera that, "[a]t trial , the defendant bears the initial burden of proving that a statement was the product of ‘custodial interrogation’ " for Miranda purposes.⁴¹ A motion to suppress was filed in Herrera , but the Miranda issue was litigated at trial.⁴²

41 241 S.W.3d at 526 (emphasis added).

42 Id. at 523 ("Before trial, Gerald had filed a motion to suppress the statements that he made to Investigator Powell. Although Gerald did not request a pretrial suppression hearing, during Investigator Powell's testimony at trial, Gerald, citing his motion to suppress, objected when Investigator Powell began to testify about his conversation with Gerald in the jail. The judge then excused the jury and allowed the parties to question Investigator Powell about the circumstances surrounding the interview.").

Our cases show a more complex treatment of exclusionary rules of evidence than the pretrial/trial distinction advocated by Appellant. The framework I have set forth is consistent with these cases, while Appellant's proposed "stage of proceedings" rule is not.

With these comments, I join the Court's opinion.