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PD-0442-17 09/27/2017

“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).”

White was indicted for engaging in organized criminal activity and other crimes. He and his co-defendants pretended to be the owners of an already existing company and diverted the company’s revenue to themselves. At trial, the State introduced an audio recording of White, his co-defendant, and a person called “Brandon” discussing the scheme. White objected that the recording violated Penal Code § 16.02, the wiretapping offense, requiring suppression under Article 38.23, because the State could not prove that any of the participants consented to the recording. It is an affirmative defense to wiretapping (and thus not an offense) if a party to the conversation intercepted the communication or consented to it beforehand. The recording had been sent to the legitimate business owner by “Brandon” and so the circumstances under which it had been recorded were not known. The trial court admitted the recording.

Key to the case was State v. Robinson, 334 S.W.3d 776 (Tex. Crim. App. 2011), which held that in a motion to suppress, it is the movant’s burden to show that a statute had been violated. Robinson alleged his blood draw violated Transportation Code § 724.017(a) in absence of any evidence of who drew Robinson’s blood and that she was qualified, as required by the statute. The Court of Criminal Appeals held that as the movant in the motion to suppress, Robinson had the initial burden to produce evidence of a statutory violation before the State had to show compliance.

On appeal, White argued the recording should have been suppressed. Relying in part on State v. Robinson, 334 S.W.3d 776 (Tex. Crim. App. 2011), the court of appeals held that it was the defendant’s burden to produce evidence of a statutory violation, and here, the defendant did not show that the recording was not made by a party.  White distinguishes Robinson because Robinson was the moving party in a pretrial motion to suppress. He argues that Robinson did not alter the usual rule that, at trial, the proponent of evidence (the State here) bears the burden of proving admissibility.  

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