THE STATE OF TEXAS v. MATTHEW MARTIN (2026)

I agree with the Court's decision to refuse the State's petition for discretionary review in this case. The case involves an application of Article 38.23(a) of the Texas Code of Criminal Procedure to suppress evidence that was “obtained,” not by law enforcement in the first instance, but by a private citizen. Appellee claimed that this private citizen (his former live-in girlfriend, Pacheco) had stolen it (an old cell phone) from him when she moved out. State v. Martin, 721 S.W.3d 701, 706−711 (Tex. App.—San Antonio 2025). For better or for worse, Article 38.23(a)’s exclusionary rule applies not just to “an officer” but to any “other person” who has “obtained” evidence “in violation of” the law. Tex. Code Crim. Proc. art. 38.23(a).

The issues, as framed in the court of appeals, included (1) whether Pacheco did in fact break the law by taking his cell phone, and (2) whether the police acted in good faith in including information gleaned from the cell phone in obtaining a warrant to conduct a forensic search of the phone. Id. at 720−730. The court of appeals, in a lengthy and comprehensive opinion, did a more than creditable job summarizing the record and applying this Court's precedents to resolve these issues.

Now the State has filed a petition for discretionary review. But its challenges do not include an argument—advanced in this case by the Presiding Judge's dissenting opinion—that our precedents construing the meaning of “other person” in Article 38.23(a) ought to be revisited in light of the word “evidence” as that word appears in the statute. It is not ordinarily within the parameters of our duty as a discretionary review court to make the arguments of the parties for them, and I would not want to do so today. In my view, there is simply no compelling reason to grant the State's petition. But that is not to say that there are not significant issues concerning the proper application of the statute at issue here that could use some further illumination, if perhaps in a different case.

I. What the State Argues

In addressing the first issue mentioned above, the court of appeals relied upon this Court's opinions in State v. Johnson, 939 S.W.2d 586 (Tex. Crim. App. 1996), and Jenschke v. State, 147 S.W.3d 398 (Tex. Crim. App. 2004). The former declared that Article 38.23(a) “plainly” applies to the conduct of any “other person” who may “obtain” evidence unlawfully, not just police officers. Johnson, 939 S.W.2d at 587. The latter stands for the proposition that such an “other person” may not have actually “obtained” evidence in violation of the statute—even by taking property without effective consent of the owner—if he did it “with the intent to turn [it] over to an officer[.]” Jenschke, 147 S.W.3d at 402.

The State, then, in its first ground for review, argues that these cases support the proposition that Article 38.23(a)’s exclusionary rule is only “triggered” by a private citizen who has “knowledge of a potential crime” and who has “inserted himself into the role of law enforcement.” State's Petition for Discretionary Review at 4. In a way, I think the State's argument is smart and creative! Unfortunately for the State here, I also believe its argument would distort the more appropriate understanding of the Court's holdings, especially our holding in Jenschke.

The Court in Jenschke did not engraft an “other-person—but-only-if-she-inserts-herself-in-the-role-of-law-enforcement” exception to what Johnson had found to be the plain meaning of the statute. Instead, the Court concluded in Jenschke that, sometimes, what might otherwise constitute theft (or any other offense) might not constitute a violation of law for purposes of exclusion under Article 38.23(a), if some legal justification might have excused that unlawful conduct. See Jenschke, 147 S.W.3d at 402 (“The Penal Code excludes from criminal responsibility conduct that would otherwise be criminal unless the State can prove beyond a reasonable doubt that the conduct was not justified.”).

The court of appeals in this case well understood this to be the import of Jenschke when it asked whether Pacheco's conduct in taking Appellant's phone without his effective consent, with the intent to deprive him of it, was justified by the necessity defense. Martin, 721 S.W.3d at 725−26. The State does not argue that the court of appeals erred to rule out necessity to excuse Pacheco's otherwise criminal conduct. The State also does not ask this Court to overrule Jenschke; it simply asks us to apply Jenschke as the State has misperceived its breadth.

There is no reason in this case to grant the petition to do that. Perhaps a case will come along to persuade the Court to revisit these cases. But I do not believe this is that case.

In addressing the second issue mentioned above—the good faith issue—the court of appeals relied on this Court's opinion in McClintock v. State, 541 S.W.3d 63, 72−73 (Tex. Crim. App. 2017). In McClintock this Court construed how Article 38.23(b)’s good faith exception should apply to a search warrant that is based on illegally obtained evidence. Martin, 721 S.W.3d at 726−30. In its second ground for review, the State does not now challenge the court of appeals’ application of the McClintock standard to the facts of this case. The State simply asks the Court to declare that the police acted in good faith in relying on Pacheco's information in the warrant affidavit without arguing how or why the court of appeals erred in applying the McClintock standard. State's Petition for Discretionary Review at 7−8. Perhaps this is just not the best case in which to make such arguments.

II. What the State Does Not Argue

More importantly, the State has not argued, as the Presiding Judge does in his dissent today, that Johnson’s construction of Article 38.23(a) should be reassessed in light of the use of the word “evidence” therein. Even if the State had made that argument, however, I would be hard pressed to accept that the word “evidence” can carry the freight that the Presiding Judge would attach to it. And I surely could not say that it plainly does.¹

In any event, again, that question was not raised in the court of appeals in this case, nor has the State broached it in its petition for discretionary review. In my view, we are not a super-appellate court, authorized to just conduct de novo appeals to address the issues we would have preferred that the parties had raised in the court of appeals below. See State v. Barber, ___ S.W.3d ___, 2026 WL 1073627 at *2 n.9 (Tex. Crim. App. Apr. 16, 2026) (“[T]he dissent wishes to ‘start over’ and ‘redo’ this appeal. But that is not how a discretionary-review court operates, which only sparingly and in unusual circumstances addresses issues that have neither been raised in a petition nor addressed by the court of appeals.”). The court of appeals did not address how the presence of the word “evidence” should affect the proper construction of the statute, so neither should we.

Having said that, if I thought it were ever appropriate to raise such an issue sua sponte, in a de novo super-appeal, I can think of an issue that I might have preferred to see raised below in this case—one that the court of appeals did address, but which the State does not now challenge. The court of appeals held that Pacheco's theft of Appellant's phone tainted any evidence that might have subsequently derived from that theft, such as testimony from another private person who later searched the cell phone, and a police officer who searched it prior to the issuance of the search warrant. Martin, 721 S.W.3d at 726. The court of appeals concluded that these subsequent searches were “indirect products” of the primary illegality, Pacheco's theft. The State says nothing about this aspect of the court of appeals’ opinion in its petition.

On some future occasion, it might be appropriate for this Court to address whether Article 38.23(a) does indeed embrace such a “fruit of the poisonous tree” doctrine at all. The late Professors Dix and Schmolesky have suggested that an argument could be made that it does not, or at least should not be, read to do so.

Perhaps the argument is that the terms of Article 38.23(a)—“evidence ․ obtained in violation of [law]”—apply only to primary evidence. Fruit of the poisonous tree may have been obtained as a result of the violation of law but not in violation of law. Thus, the legislature may have balanced the broad applicability of Article 38.23’s exclusionary requirement with a remedy significantly narrower than its Fourth Amendment model.

Such a position is certainly defensible in terms of the underlying considerations. Since the statute imposes an exclusionary requirement on far more legal requirements than the federal constitutional rule, the costs of a fruits doctrine under the statute are considerably greater than under the federal requirement. The nonconstitutional nature of many of the legal requirements triggering the rule means that law enforcement compliance is—relatively speaking—less important than police compliance with constitutional rules. On balance, the legislature may have concluded, sufficient deterrence is provided by the exclusion of directly obtained evidence, and the cost of suppression of reliable “fruit” would be excessive. Suppression of fruit of the poisonous tree, therefore, is unnecessary to serve the purpose of the statute.

George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 7:50, at 366 (3d ed. 2011). But I express no ultimate opinion on this matter today, since the State has not asked us to do so here. This is simply not that case.

FOOTNOTES

1.   The Presiding Judge seems to believe that the presence of the word “evidence” in Article 38.23(a) necessarily means that an “other person” who has “obtained” it illegally must at least be aware that it constitutes “evidence”—that it is “[s]omething ․ that tends to prove ․ the existence of an alleged fact” in a criminal prosecution, Black’s Law Dictionary at 696 (12th ed. 2024)—before the statute will mandate its exclusion. See Dissenting Opinion at 8−9 (“Practically speaking, Pacheco's personal endeavor [merely to uncover “proof of Martin's romantic infidelity”] offers no statutory reason to exclude proof of the crime Pacheco inadvertently uncovered.”). While I can agree that “the word ‘evidence’ plainly relates to information that is or will be introduced at a criminal trial[,]” id. at 8, that does not mean it is also “plain” from the statue as a whole that the “other person” who has “obtained” the “evidence” must be aware of that fact at the time of acquisition. Such a reading, even if plausible, does not plainly jump off the page.