Maria Martha CHAVEZ, Appellant, v. The STATE of Texas, 9 S.W.3d 817

OPINION McCORMICK, P.J.„ delivered the opinion of the Court, in which MANSFIELD, KELLER, WOMACK and KEASLER, JJ., joined. Pursuant to a plea-bargain, appellant pled guilty to delivery of cocaine. Appellant appealed the denial of her motion to suppress the cocaine. The issue in this case is whether our state exclusionary rule in

Article 38.23(a), V.A.C.C.P., requires the exclusion of evidence that a Rural Area Narcotics Task Force (RANTF) undercover police officer obtains outside the geographical boundaries set out in an Interlocal Assistance Agreement (the Agreement) authorized by

Section 362.002(

b) of the Local Government Code.

Article 38.23(a), in relevant part, provides: “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.” Cox, a police sergeant with the city of Lampasas, was authorized by the Agreement to investigate illegal drug activity in Commanche, Hamilton, Lampasas, and Mills counties which were the parties to the Agreement.

The Agreement authorized Cox to exercise all the powers of a police officer “within the area covered by the jurisdiction of the parties to this Agreement.” Cox began to investigate appellant when a confidential informant introduced them in Commanche County which was a party to the Agreement. Cox eventually made an undercover drug buy of the cocaine from appellant in Erath County which was not a party to the Agreement. Appellant claimed the cocaine should have been suppressed under

Article 38.23(

a) solely because Cox obtained it from her outside the geographical boundaries set out in the Agreement. Appellant alleged no violation of any of her rights. The trial court and the Court of Appeals rejected appellant’s claim. The Court of Appeals decided Cox did not breach the Agreement, and, even if he did,

Article 38.23(

a) did not require exclusion of the evidence primarily because “the information gathered by Sergeant Cox could have been gathered by anyone.” We find it unnecessary to decide whether Cox breached the Agreement because we agree with the Court of Appeals that any breach of the Agreement by Cox does not require exclusion of the evidence under

Article 38.23(a). In Johnson v. State, this Court decided the “plain” language of

Article 38.23(

a) incorporated the “attenuation doctrine” because the seizure of the evidence is so far removed from the initial illegality that an “ordinary person would not consider that evidence to have been ‘obtained’ by that illegality.” See Johnson v. State, 871 S.W.2d 744, 749-51 (Tex.Cr.App.1994); see also State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Cr.App.1996) (discussing Johnson). However, in State v. Daugherty, this Court decided the “plain” language of

Article 38.23(

a) did not incorporate the “inevitable discovery doctrine” because it “assumes that the evidence was illegally obtained.” See Daugherty, 931 S.W.2d at 271 (emphasis in original). Johnson and Daugherty decided

Article 38.23(

a) should be construed according to its “plain” language with

Article 38.23(a)’s “obtained” given its “ordinary meaning” unless this would lead to “absurd results.” See Daugherty, 931 S.W.2d at 270. When this Court last construed

Article 38.23(a), it decided the “plain” language of “other person” in

Article 38.23(

a) made

Article 38.23(

a) applicable to purely “private action.” See State v. Johnson, 939 S.W.2d 586, 587-88 (Tex.Cr.App.1996); but see Johnson, 939 S.W.2d at 588-93 (McCormick, P.J., dissenting) (Article 38.23(

a) intended to apply only to “state action” and intended to incorporate only federal exclusionary rule jurisprudence). Johnson also decided

Article 38.23(

a) should be construed according to its “plain” language unless this would lead to “absurd results.” See Johnson, 939 S.W.2d at 588. Besides deciding

Article 38.23(

a) should be construed according to its “plain” language, another thing both Johnsons and Daugherty have in common is that in each of these cases an invasion of the defendant’s rights occurred. In Fuller v. State, this Court did not follow the “plain” language of

Article 38.23(

a) on the issue of a defendant’s standing to complain about a private person illegally seizing evidence from a third party. Compare Fuller v. State, 829 S.W.2d 191, 201-02 (Tex.Cr.App.1992) and at 211 (Miller, J., concurring), cert. denied, 508 U.S. 941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993) (Article 38.23(

a) did not require exclusion of the evidence), with, Fuller, 829 S.W.2d at 210-11 (Clinton, J., dissenting) (“plain” language of

Article 38.23(

a) required exclusion of the evidence). Fuller decided the defendant had no standing to complain about the seizure of the evidence because no invasion of the defendant’s rights occurred when it was seized. See Fuller, 829 S.W.2d at 191. Neither of our Johnson cases nor Daugherty overruled Fuller even though a dissenting opinion in our most recent Johnson case noted the inconsistent approaches taken by this Johnson case and Fuller in interpreting

Article 38.23(a). See Johnson, 939 S.W.2d at 588 fn. 1 (McCormick, P.J., dissenting). Therefore, Fuller controls the disposition of this case. Appellant lacks standing to complain about the seizure of the cocaine because Cox did not obtain the cocaine in violation of appellant’s rights. See Fuller, 829 S.W.2d at 201-02 (one who has not suffered invasion of a legal right does not have standing to bring suit); cf. House v. State, 947 S.W.2d 251, 253 (Tex.Cr.App.1997) (defendant has no standing to complain about prosecutor’s alleged ethical rule violation that does not violate or prejudice the defendant’s rights).

The Agreement and the provision of the Local Government Code authorizing it obviously are meant to protect the autonomy of the local governments who are parties to the Agreement. Only these parties to the Agreement have standing to complain about a breach of the Agreement by one of the parties to it. The Agreement confers no third party beneficiary status on appellant to complain about a breach of the Agreement.

And, even if someone like appellant had standing to complain about a breach of the Agreement by one of its parties, the contractual remedy would be specific performance of the Agreement and not exclusion of evidence obtained by police officers acting outside the geographical boundaries set out in the Agreement. In addition, under both Johnsons and Daugherty, the “plain” language of

Article 38.23(

a) does not require exclusion of the cocaine. No “ordinary person” would consider the cocaine to have been “obtained” in violation of the law. See Daugherty, 931 S.W.2d at 270 (Article 38.23(

a) rejects a strict “but/for” test of causation between the illegality and seizure of the evidence). Any causal relationship between Cox’s alleged breach of the Agreement and his acquisition of the cocaine is too remote for

Article 38.23(

a) to consider the cocaine to have been “obtained” by the “illegality” of Cox’s alleged contractual breach of the Agreement. See Daugherty, 931 S.W.2d at 270 (ordinary meaning of “obtained” does not extend to remote causal relationships). Also, under our more recent Johnson case,

Article 38.23(

a) treats “state action” and “private action” the same or on an equal footing. See Johnson, 939 S.W.2d at 587-88.

Article 38.23(

a) would not consider the cocaine to have been “obtained” in violation of the law had Cox acted in a purely private capacity. Therefore, treating “private action” and “state action” equally under Johnson,

Article 38.23(

a) does not consider the cocaine to have been “obtained” in violation of the law in this case. The judgment of the Court of Appeals is affirmed. KELLER, J., filed a concurring opinion in which KEASLER, J., joined; PRICE, J., filed a concurring opinion in which MEYERS, J., joined; HOLLAND, J., filed a dissenting opinion in which JOHNSON, J., joined.