STATE OF TEXAS v. MATTHEW DAVID MARTIN (2026)

DISSENTING OPINION

The majority has refused the State's petition for discretionary review presenting several questions concerning the proper interpretation of Article 38.23 of the Texas Code of Criminal Procedure. Underlying these questions is the private, off-topic pursuit of information unrelated to a criminal event. I believe the Fourth Court of Appeals's decision here—applying prior decisions of this Court to compel exclusion of evidence that is probative of serious criminality yet obtained without any criminal investigatory purpose—was wrong, and that the issue presented today is sufficiently serious in all events to warrant our review.

I question whether it might be absurd to adopt a reading of Article 38.23 that excludes evidence in a criminal trial when that evidence was acquired—regardless of how—by a private actor lacking foreknowledge of any crime later to be charged or proven. The Court should instead adhere to the plain meaning of the word “evidence” when it is employed in Article 38.23 (or other criminal statutes) to relate to information that would be at least potentially relevant in a criminal proceeding. See Tex. Code Crim. Proc. Ann. art. 38.23.

I thus would grant review in the case before us, and because the majority does not, I dissent.

BACKGROUND

Martin once resided with his ex-fiancée, Ashley Pacheco. Pacheco ended the relationship, at least partially, on account of her belief Martin had a wandering eye for other women. While going through their shared belongings in their shared residence, Pacheco came across Martin's old cell phone and took it.

A few months later, Pacheco looked through the phone's stored images and discovered Martin's wandering eye extended not only to other adult women, but to victims of child pornography. Upon this discovery, she took the phone to the police station. During an interview Pacheco admitted she took Martin's phone because she suspected she would find evidence of his infidelity and (falsely) told Martin that she had destroyed it. Following the interview, police obtained a warrant to search the phone and subsequently charged Martin with possession of child pornography.

Martin challenged the validity of the warrant in addition to the evidence it and Pacheco uncovered, and following a Franks 1 hearing, the trial court concluded Pacheco committed theft by taking Martin's old cell phone without his consent. The court thus granted his motion to suppress the evidence obtained from the phone.

On appeal, the State argued Pacheco broke no law in taking the phone from their shared home, but the Fourth Court of Appeals disagreed and affirmed the trial court's decision to exclude. However, the intermediate court agreed with the State's interpretation of Jenschke v. State, 147 S.W.3d 398 (Tex. Crim. App. 2004), and State v. Johnson, 939 S.W.2d 586 (Tex. Crim. App. 1996), but those cases are distinguishable. Unlike in Jenschke or Johnson, Pacheco did not suspect evidence of a crime existed on the phone when she took it unlawfully.

DISCUSSION

The State has asked our Court to determine (1) whether Johnson and Jenschke implicitly hold Article 38.23(a)’s exclusion should not apply to the actions of “other persons” who have not inserted themselves into the role of law enforcement, yet unwittingly uncover evidence of crime, and (2) in the case that Pacheco did violate the law, but her conduct existed independent of police involvement, whether the good-faith exception of Article 38.23(b) would permit police to obtain a search warrant for Martin's phone. See Tex. Code Crim. Proc. Ann. art. 38.23. While Martin suggests we look to Johnson and Jenschke as they consider the meaning of the words “other persons,” I don't believe these cases—as applied to Martin's case—can be adequately considered without discussion of the word “evidence” employed in the statute as well.

I. THE STATUTE IN QUESTION AND OUR JURISPRUDENCE

The relevant text of Article 38.23 reads:

(a) 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 ․

(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.

Tex. Code Crim. Proc. Ann. art. 38.23.

In Johnson, this Court read the words “other person” literally and broadly, determining “evidence illegally obtained by an ‘officer or other person’ ” meant evidence obtained by any other person at all, with no qualifying language regarding those persons, and compelled that it “ought to be suppressed” if obtained by means contrary to any State or federal law. Johnson, 939 S.W.2d at 588. Despite waving the plain-language flag and embracing the obligation “to implement the expressed will of our legislature, not the will [the Court] keeps to itself,” Johnson went on to recognize an unspecified relief valve, warning courts to look past the plain language where doing so would lead to “absurd results.” Id. at 588. To that end, we have since held “Article 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule or to the prevention of the illegal procurement of evidence of crime.” Wilson v. State, 311 S.W.3d 452, 459 (Tex. Crim. App. 2010).

In between Johnson and Wilson, this Court decided Jenschke. That case involved the parents of a minor who told them Jenschke had forced sexual contact onto her seeking out proof of that assault by entering Jenschke's “truck without his knowledge or consent.” Jenschke, 147 S.W.3d at 399. In the truck's cab, they located a condom they believed to be the one their daughter described as used in the sexual assault. Id.

Jenschke moved to suppress the evidence, complaining the parents “committed burglary of a vehicle to get the condom, it was ‘obtained by ․ [a] person in violation of ․ the laws of the State of Texas,’ and Article 38.23(a) prohibits the admission of such evidence against the appellant.” Id. This Court agreed retrieving the condom amounted to a violation of law and suppressed its use as evidence, although the opinion premised that holding on the parents’ lack of intent to immediately tender this evidence to law enforcement. Id. at 403. While I agree with Jenschke’s focus on the purpose of the acquisition at the time, I am less convinced of the breadth of its permissive reach.

Where Johnson focused on who might constitute “other persons,” Jenschke focused on those persons’ motivation in coming upon what a court might consider “evidence.” In limiting Jenschke’s holding to require intent of an illegal act or intent to misappropriate evidence—rather than intent to recover evidence for use in prosecution of a crime—the Court aimed to accommodate a variety of statutory provisions on the justification that doing so would, perhaps, ameliorate an unlawful taking of property for the purpose of handing it over to law enforcement. Or, as Judge Meyers warned, the “intent” exception could also be read to license the warrantless seizures Article 38.23 targeted for exclusion. See id. at 403–04 (Meyers, J., dissenting).

These holdings constitute our guidance to the lower courts. I think our decisions can do better. To that end, this case provides an opportunity to lend some predictability to what Article 38.23’s reach to “other persons” means.

II. CONSIDERING THE STATE'S QUESTIONS

I do not believe broadly answering the State's questions about implicit holdings in Johnson and Jenschke “yes” or “no” considers the use of the term “evidence” in the same sentence—and thrice set out as the object of the statute's subsections (a) and (b). I believe the question presented here fairly includes whether something found by an “other person” who is not searching for “evidence” relevant to any potential criminal proceeding is intended to fall within the reach of Article 38.23. Just as the Johnson Court looked carefully at the words “other persons,” considering the plain legal meaning of “evidence” would help to provide a clear rule for admission of criminal evidence inadvertently uncovered during an unrelated activity, regardless of whether that activity is illegal. The State's questions also provide an interesting perspective into the practicality of applying Jenschke, and I believe this Court should reconsider that case's holding.

A. “Evidence” as a Matter of Law in the Critical Context

Chattels and real property are protected by multiple laws against private or official invasions, but not every unlawful private invasion or trespass to them is a search for “evidence” within either the plain meaning or the purpose of Article 38.23’s suppression rule. Private actors who are stealing things from cars and homes are generally not pursuing “evidence.” They want “stuff,” or want to be somewhere they are not allowed to be for purposes of their own design.

Whether considered by its common understanding or as a term of art, when used in a criminal statute, the word “evidence” plainly relates to information that is or will be introduced at a criminal trial for the purpose of showing or contesting criminal culpability. That is to say, the elements amounting to an offense are “more or less probable” and the information is “of consequence in determining” the matter. See Tex. R. Evid. 401, 402; Evidence, Black’s Law Dictionary 696 (12th ed. 2024) (defining “evidence” as “something that tends to prove or disprove the existence of an alleged fact.”); see also United States v. Hansen, 599 U.S. 762, 774 (2023) (holding clause using “encourages or induces” to have a “specialized, criminal-law” meaning when used in criminal statute). Applying that long-settled and well understood definition to the relevant facts, what Pacheco sought to recover was not “evidence” of consequence to a criminal prosecution.² At the moment, and I suspect for the foreseeable future, no Texas law makes infidelity to one's fiancée a crime.

Practically speaking, Pacheco's personal endeavor offers no statutory reason to exclude proof of the crime Pacheco inadvertently uncovered. Unlike the parents in Jenschke, at the time Pacheco uncovered child pornography on Martin's phone, she was not on the hunt for what we consider evidence for use in criminal prosecutions. If that were not clear enough, imagine other parallel settings.

Suppose John Wayne Gacy had been a Texas resident. Suppose further, while readying for one of the children's parties where he performed as a clown, Gacy encountered a problem requiring the summoning of a professional plumber. Had Gacy authorized the plumber to work only in the bathroom as he left for the party, and the plumber, frustrated by his inability to locate the clog and hoping to avoid a return trip the next day, trespassed without permission into the crawl space below the floor, would we find his discovery of human remains instead of the clog unlawful, exclude that evidence and all its fruits, and send Mr. Gacy on his way? Or, if we had a hunter discover evidence of a murder while pursuing a wounded deer across a posted boundary line, what result then?  ³

Applying a broad reading of Article 38.23’s “evidence obtained by ․ other persons,” as the Johnson Court advised, in any of these three scenarios would produce absurd results (as the Johnson Court advised against). Put frankly, requiring evidence of Martin's possession of child sexual abuse material to be suppressed on this record and under this statutory language requires an absurd reading of the statute. The plumber's search for a clogged pipe or the jealous lover's search for rivals may inadvertently produce information associated with a crime, however, the activity is not a search for “evidence” that would make proof of criminality more or less likely at any trial following its discovery. The simpler way to address this question is to read “evidence” according to its plain meaning as existing within our Texas Rules of Evidence and other rules governing its use in a criminal trial.

B. Jenschke Should be Reconsidered

Meanwhile, it is more difficult to understand Jenschke’s invitation to ignore private actors’ illegal conduct when it is undertaken to procure evidence for use at trial. In his dissent, Judge Meyers questioned whether the Court was effectively rewriting the statute. See Jenschke, 147 S.W.3d at 403 (citing Garcia v. State, 829 S.W.2d 796, 799 (Tex. Crim. App. 1992)). He was right; a private actor essentially stepping into the shoes of law enforcement—at least without specific statutory justification—to evade the warrant requirement would appear to be precisely what the legislature intended to preclude.

Our Jenschke decision may be better limited to the scenario the opinion itself offered: where the illegal act is specifically but separately authorized by law to take the material for that purpose of obtaining “evidence.” Those are rare circumstances. As a general rule, authorizing private criminal acquisition of evidence on behalf of law enforcement is difficult to square with a statute meant to impede law enforcement (or an “other person”) from violating “any provisions” of the “laws of this state.” To the extent Jenschke says so, we should reconsider its holding.

III. RESPONSE TO THE CONCURRENCE

Judge Yeary's concurrence suggests that the State's petition in this case, though inviting us to revisit the holdings in Jenschke and Johnson and the proper reading of the text of Article 38.23, does not grant permission for us to read the words in the text apart from those cited to us by the parties in their papers. I disagree.

Appellate courts, including and especially terminal courts like this one, are not required to embrace the second-least bad argument made by the parties appearing before them, reduce it to print under a caption, and call it the law of the State. Considering and reading the words in the statute the parties cite is not a vice. Parties do not write opinions and are not responsible for our jurisprudence. Quite the opposite, “when an issue ․ is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of the governing law ․ ”. United States Nat'l Bank of Oregon v. Indep. Ins. Agents of Am., 508 U.S. 439, 446-47 (1993) (emphasis added); see also United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring) (“[T]here must be enough play in the joints that the ․ Court need not render judgment on the basis of a rule of law whose nonexistence is apparent on the face of things, simply because the parties agree upon it—particularly when the judgment will reinforce error already prevalent in the system.”); Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring); Palmer v. Bd. of Educ., 46 F.3d 682, 684 (7th Cir. 1995) (Easterbrook, J.) (explaining “court[s] should apply the right body of law even if the parties fail to cite” it).

Were it otherwise, our jurisprudence would resemble a jumble of disjointed technical outcomes of no meaning to the many courts, litigants or the public who are all obliged to live under it. It is not otherwise. Instead, it is quite clear that all legal arguments “fairly subsumed” within the issue raised or preserved below are all properly before our Court. See Ohio v. Robinette, 519 U.S. 33, 38 (1996) (“We believe the issue as to the continuing legality of the detention is a ‘predicate to an intelligent resolution’ of the question presented, and therefore ‘fairly included therein.’ ”); Gross v. FBL Fin. Serv., 557 U.S. 167, 173 n.1 (2009) (citing Sup. Ct. R. 14.1). (“Although the parties did not specifically frame the question to include this threshold inquiry, ‘[t]he statement of any question presented is deemed to comprise every subsidiary question fairly included therein.’ ”); Gill v. Hill, 688 S.W.3d 863, 869 (Tex. 2024) (“[B]riefs do not have to perfectly articulate every point of law to preserve arguments that are fairly subsumed in the issue addressed.”); St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 213-14 (Tex. 2021) (citing Tex. R. App. P. 38.1(f)) (“Rule 38.1 provides that an issue statement ‘will be treated as covering every subsidiary question that is fairly included.’ ”). We follow—or at least should follow—the same rule.

In fact, while we should generally avoid addressing issues the parties have not raised themselves, we also have that authority to do so. See Tex. R. App. P. 67 (“Discretionary Review Without Petition”); Cuevas v. State, No. PD-0144-25, 2026 WL 899833, at *11 (Tex. Crim. App. Apr. 2, 2026) (Yeary, J. dissenting). But where an appellate court raises an issue of its own accord, without affording re-briefing, the parties have no opportunity to present any arguments, fairly subsumed and included, or otherwise.

Still, this Court has recognized our authority to raise legal issues sua sponte while sometimes affording an opportunity to develop the question on remand. Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014) (acknowledging laches as a defense requiring pleading but holding the “court may sua sponte consider and determine whether laches should bar relief”). Where these dispositions turn on facts, they raise especially acute due process concerns. Even where the issues are purely legal,⁴ deciding them without providing the opportunity for the parties to present any legal arguments still raises concerns militating in favor of further briefing or argument. E.g., Alderman v. United States, 394 U.S. 165 (1968) (parties ordered to return and reargue case to address standing); Trest v. Cain, 522 U.S. 87, 92 (1976) (stating preference for supplemental briefing where the Fifth Circuit raised issue sua sponte in federal habeas proceeding).

Putting aside the question of how we should handle the raising of new issues outside the fairly included reach of those already raised by the parties, the Court's authority (and occasional need) to reach the issue is (or at least should be) beyond doubt. See Kolstad v. American Dental Ass'n, 527 U.S. 526, 540 (1999); Nat'l Bank of Ore., 508 U.S. at 447 (stressing the Court is within its discretion to raise and “consider an issue ‘antecedent to ․ and ultimately dispositive of’ the dispute before it, even an issue the parties fail to identify and brief it”) (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)).

The only real question that should be open to debate is when it is appropriate to do so. For its part, the United States Supreme Court appears to exercise this discretion to assure that its jurisprudence is coherent and aligned with basic constitutional requirements that inform decision-making across the lower courts. E.g., Stanley v. Illinois, 405 U.S. 645 (1972) (bypassing parties’ respective arguments, raising and deciding the question whether state may terminate parental rights of unwed fathers without due process); Continental Ill. Nat'l Bank v. R.I. & P. Ry., 242 U.S. 648, 667 (1935) (“The constitutional validity of the section ․ is ․ passed without discussion of the parties. Nevertheless, ․ the question is fundamental [and] we deem it necessary to consider and dispose of it”). While it often sparks controversy, particularly where the parties are not given the opportunity to reengage,⁵ the Court and individual justices routinely acknowledge the need.⁶ In fact, it is notable how often this power is required in criminal cases of significant substantive jurisprudential importance. E.g., McCleskey v. Zant, 499 U.S. 467 (1991); Teague v. Lane, 489 U.S. 288, 300 (1989); Batson v. Kentucky, 476 U.S. 79 (1986); Younger v. Harris, 401 U.S. 37, 40-41 (1971) (requiring abstention to avoid injunctions against state court criminal proceedings); Mapp v. Ohio, 357 U.S. 643 (1961); United States v. Feola, 420 U.S. 621, 697 (1972) (Stewart, J., dissenting) (“This question was not contained in the petition for certiorari in the present case, and has not been addressed in either the briefs or oral arguments”); Stevens v. Marks, 395 U.S. 234, 246-48 (1966) (Harlan, J., concurring and dissenting).

The Supreme Court confronts a different level of advocacy in criminal and civil matters. In the former, the counsel before it are typically appointed and/or government staff without endless resources. We do not give away a secret to suggest that the briefing we receive, though admirable, is likewise constrained to at least the same degree by the same resource challenges. We could allow those challenges to affect the substance of our thinking and stewardship over our courts. I vote no.

It is equally striking how rarely the United States Supreme Court will reach out to address and resolve factual questions dispositive of issues not raised by the party for the purpose of providing or withholding relief to one side of the docket—except, perhaps, where it is essential to preserve its jurisdiction and maintain the integrity of the judicial system. See United States v. Shipp, 203 U.S. 563 (1906). It would thus seem that both courts recognize the authority of appellate courts, especially high courts, to raise issues and certainly address legal arguments within the reach of issues already presented by the parties. One appears to do so very rarely but properly and for the admirable purpose of maintaining a coherent, discernable jurisprudence, and not to present factual contentions unique to the case before it.

With all of this in mind, if the question here is whether we (or I) can reach the question of how the words in a statute should be read without the parties’ invitation to read a particular word within the sentence; I do not believe it is open to serious debate. See Ex parte Stafford, 726 S.W.3d 231, 246 (Tex. Crim. App. 2024) (Yeary, J., dissenting) (presenting excellent legal arguments not presented by the State fairly included within the issue presented). I do not seek permission to read the words in the governing statute the parties bring before us. Instead, I see it as an obligation inherent in the obligations of this job. Judges are not zombies and courts are not toll booths.

The real question is when or why we should do so and when or why we should leave the parties to pilot the plane. To me, the answer depends on whether the opinion we would issue will inform the lower courts and the public of what the relevant law is in a way that does at least some good without inflicting affirmative, misleading harm.

Finally, the suggestion we ought not address legal arguments within the reach of an issue presented by the parties for the purpose of avoiding unnecessary (and bad) law-making and inefficient dispositions turns the concept of judicial restraint on its head. It invites the parties’ activism to become our own, or at least to drive results not supported by the actual law we are sworn to uphold. To that end, where the parties urge us into dangerous places in slow motion, we have no obligation to follow. Avoiding these paths is not only proper as a matter of responsible stewardship, it is also the essential underlying element of the “de novo” review that obtains with respect to every legal issue brought before us. De Novo, Black’s Law Dictionary 548 (12th ed. 2024) (defining the term as when a court “makes an independent determination without deference to any earlier analysis about the matter.”).

CONCLUSION

Our opinions in Jenschke and Johnson are twenty and thirty years old, respectively. Our decision in Wilson is more than a decade old. I believe we should reconcile them in a fashion that facilitates the difficult work of lower courts in attempting to apply their holdings to the facts as they come forth and in accordance with the controlling statutory language. This case presents an excellent opportunity to do that.

In this case, we have a curious private actor searching for proof her fiancé is a cad. I would therefore not see her search as one for “evidence” within the meaning of Article 38.23. While I do not doubt that search involved the “theft” of the phone or any otherwise illegal action, I would not find that act to be within the Article's intended reach to “evidence” gathering and would find exclusion unduly strong medicine.

For these reasons, I dissent.

FOOTNOTES

1.   See Franks v. Delaware, 483 U.S. 154 (1978).

2.   Pacheco's intent did not track that of the parental trespassers in Jenschke, and thus this case presents no occasion to address Jenschke’s curious invitation to private actors who affirmatively seek out incriminating information in order to turn it over to law enforcement, as somehow invited by the same Article prohibiting unlawful information gathering.

3.   See also United States v. Perez, 844 Fed. Appx. 113, 116 (11th Cir. 2021) (explaining a landlord's son's trespass into a residence for purposes of securing the resident's barking dog did not require the exclusion of an inadvertently discovered unlawful firearm for purposes of the Fourth Amendment).

4.   See In re McLean Indus., 30 F.3d 385, 387 (2d Cir. 1994) (“In this circuit, we reserve ‘considerable discretion’ to review purely legal questions not formally raised in the district court”); Payne v. McLemore's Wholesale & Retail, 642 F.2d 1130, 1145 (5th Cir. 1981); Trierweiler v. Croxton and Trench Holding Co., 90 F.3d 1523, 1538 (10th Cir. 1996).

5.   E.g., Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 194–95 n.4 (1994) (discussing desirability of ordering supplemental briefing).

6.   As others have noted, it is amusing to track the alternating positions of many of the country's greatest jurists as they trade respective places raising new arguments or issues and complaining of others doing likewise. Eric Miller, Should Courts Consider 18 U.S.C. § 3501 Sua Sponte, 65 U. Chi. L. Rev. 1029, 1045 n.88 (1998) (urging Supreme Court to follow Justice Scalia's suggestion to consider issue sua sponte and highlighting inconsistent positions); compare Hill v. California, 401 U.S. 797, 805 (1977) (complaining of court addressing issue not raised) with Connor v. Finch, 431 U.S. 407, 430 (1977) (Powell, J., dissenting) (complaining of Justice White and majority doing same) and Stanley v. Illinois, 405 U.S. 645, 658 n.10 (1972); compare Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 67-68 (1993) (O'Connor, J., concurring in judgment)(“But instead of proceeding to consider the second question presented, the Court sua sponte attempts to resolve the case on ripeness grounds.”) with Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 540 (1999) (explaining “the Court has not always confined itself to the set of issues addressed by the parties.”); compare United States v. Feola, 420 U.S. 671, 696–97 (1975) (Stewart, J., dissenting)(“Nevertheless the Court sets out sua sponte to decide the basic question ․ without the benefit of either briefing or oral argument by counsel.”) with Connor, 431 U.S. at 430.