source error in Texas

2018The reviewing court “should examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, its probable collateral implications, and how much weight a juror would probably place upon the error.” Id.

2007I would hold that the error was harmless under the Dinkins factors. (1) Source of the error The source of the error was the State’s single question about appellant’s post-arrest silence as to his claim of self-defense prior to appellant’s counsel’s objection and its single repetition of the question after the objection was overruled. (2) Extent to which the State emphasized, the error There was no other mention of appellant’s post-arrest silence, so this evidence was not strongly emphasized by the State. (3) Weight a juror would probably place on appellant’s post-arrest silence In applying the

2015We examine "the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications." Id.

2013We examine “the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications.” Id.

2024“At its core, the independent source doctrine provides that evidence derived from or obtained from a lawful source, separate and apart from any illegal conduct by law enforcement, is not subject to exclusion.” Id. at 465 (citing Murray v. United States, 487 U.S. 533, 537 (1988); Nix v. Williams, 467 U.S. 431, 443 (1984)).

2022Wehrenberg v. State, 416 S.W.3d 458, 466 (Tex. Crim. App. 2013). 4 “At its core, the independent source doctrine provides that evidence derived from or obtained from a lawful source, separate and apart from any illegal conduct by law enforcement, is not subject to exclusion.” Id. 465 (citing Murray, 487 U.S. at 537 ).

2025Harper v. State, No. 08- 23-00106-CR, 2024 WL 3579499 , at *17 (Tex. App.—El Paso July 29, 2024, pet. ref’d) (mem. op., not designated for publication) (on appeal, appellant and State focused their arguments on whether there was probable cause and exigent circumstances justifying the seizure of appellant’s cell phone; however, the court “ground[ed its] analysis and holding on a different principle—the independent source doctrine”). “[E]vidence obtained pursuant to an independent source, much like evidence for which a prior taint has been attenuated, is not ‘obtained’ in violation of the law an

2025Harper v. State, No. 08- 23-00106-CR, 2024 WL 3579499 , at *17 (Tex. App.—El Paso July 29, 2024, pet. ref’d) (mem. op., not designated for publication) (on appeal, appellant and State focused their arguments on whether there was probable cause and exigent circumstances justifying the seizure of appellant’s cell phone; however, the court “ground[ed its] analysis and holding on a different principle—the independent source doctrine”). “[E]vidence obtained pursuant to an independent source, much like evidence for which a prior taint has been attenuated, is not ‘obtained’ in violation of the law an

2024“Thus, in determining whether challenged evidence is admissible under the independent source doctrine, the central question is ‘whether the evidence at issue was obtained by independent legal means.’” Id. at 465 (quoting United States v. May, 214 F.3d 900, 906 (7th Cir. 2000)).

2018“Thus, in determining whether challenged 26 evidence is admissible under the independent source doctrine, the central question is ‘whether the evidence at issue was obtained by independent legal means.’” Id. at 465 (quoting United States v. May, 214 F.3d 900, 906 (7th Cir. 2000)).

2024“The independent source doctrine provides that evidence actually obtained pursuant to a distinct, untainted source is not subject to suppression because, in such cases, the prior illegality does ‘not contribute in any way to discovery of the evidence seized under the warrant.’” Wehrenberg, 416 S.W.3d at 469 (quoting Segura v. United States, 468 U.S. 796, 810 (1984)).

2022Under the independent source doctrine, “evidence actually obtained pursuant to a distinct, untainted source is not subject to suppression because, in such cases, the prior illegality does ‘not contribute in any way to discovery of the evidence seized under the warrant.’” Wehrenberg, 416 S.W.3d at 469 (quoting Segura, 468 U.S. at 815 ).

2024However, we ground our analysis and holding on a different principle—the independent source doctrine.18 More than a hundred years ago, the United States Supreme Court recognized that while evidence illegally obtained cannot be used, “[i]f knowledge of [facts] is gained from an independent source they may be proved like any others.” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).

2018Independent Source Doctrine The independent source doctrine provides that facts do not become “‘sacred and inaccessible’ simply because they are first discovered unlawfully; rather, ‘[i]f knowledge of [facts] is gained from an independent source they may be proved like any others[.]’” Wehrenberg v. State, 416 S.W.3d 458, 464 (Tex. Crim. App. 2013) (quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 , 40 S. Ct. 182, 183 (1920)).

2013See also United States v. Brooks , 715 F.3d 1069, 1075 (8th Cir. 2013) ("Under the independent source doctrine, the exclusionary rule is inapplicable where the evidence was acquired through a source independent of the tainted search."); United States v. Oliver , 630 F.3d 397, 408 (5th Cir. 2011) ("Evidence not obtained as a result of police illegality, but rather through a legal, independent source, need not be suppressed."); United States v. Etchin , 614 F.3d 726, 736-37 (7th Cir. 2010) ("when a later-arriving warrant is based on information 'wholly unconnected' to the illegal entry, evidence

2013See also United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir.2013) ("Under the independent source doctrine, the exclusionary rule is inapplicable where the evidence was acquired through a source independent of the tainted search.”); United States v. Oliver, 630 F.3d 397, 408 (5th Cir.2011) ("Evidence not obtained as a result of police illegality, but rather through a legal, independent source, need not be suppressed.”); United States v. Etchin, 614 F.3d 726, 736-37 (7th Cir.2010) ("when a later-arriving warrant is based on information 'wholly unconnected’ to the illegal entry, evidence disco

2013Id.

2013Id. at 728-29 (citing State v. Powell, 306 S.W.3d 761, 769 (Tex.Crim.

2024“At its core, the independent source doctrine provides that evidence derived from or obtained from a lawful source, separate and apart from any illegal conduct by law enforcement, is not subject to exclusion.” Id. at 465 (citing Murray v. United States, 487 U.S. 533, 537 (1988); Nix v. Williams, 467 U.S. 431, 443 (1984)).

2021In Wehrenberg, the Court further noted: The independent source doctrine is motivated by a recognition that society’s interest in deterring unlawful police conduct and its interest in having juries receive all probative evidence “are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred.” Nix v. Williams, 467 U.S. 431, 443 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984) (comparing independent source and inevitable discovery doctrines and noting that both doctrines are motivated by same underlying rationale)

2019Id.; Mosley v. State, 960 S.W.2d 200 , 204-05 (Tex. App.—Corpus Christi 1997, no pet.).

1999A reviewing court must consider the following factors under the Harris test: *142 (1) the source of the error; (2) the nature of the error; (3) whether or to what extent it was emphasized by the State and its probable collateral implications; (4) the weight a juror would probably place on the error; and (5) whether declaring the error harmless would encourage the State to repeat it with impunity. ■Mosley v. State, 960 S.W.2d 200, 204 (Tex. App.-Corpus Christi 1997, no pet.) (citing Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim.App.1989)). 3 .

2009Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989); Crocker v. State , 248 S.W.3d 299, 306 (Tex.App.–Houston [1 st Dist.] 2007, pet. ref’d).

2009Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989); Crocker v. State, 248 S.W.3d 299, 306 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd).

2013Moreover, given this Court's rationale for determining in Johnson that the attenuation doctrine is consistent with the Texas exclusionary rule, that same rationale leads us to conclude that the independent source doctrine is also compatible with it. (8) See Johnson , 871 S.W.2d at 750-51 .

2013Moreover, given this Court’s rationale for determining in Johnson that the attenuation doctrine is consistent with the Texas exclusionary rule, that same rationale leads us to conclude that the independent source doctrine is also compatible with it. 8 See Johnson, 871 S.W.2d at 750-51 .

2011See Marin v. State, 851 S.W.2d 275, 278-80 (Tex.Crim.App.1993) (appealable errors fall into three categories: 1) violation of forfeita-ble rights, which must be preserved for appeal by timely and specific objection; 2) violation of rights that must be expressly waived, which may be vindicated on appeal in the absence of such a waiver; and 3) violation of a systemic prohibition or requirement not optional with the parties at trial, which may always be remedied on appeal, regardless of waiver or forfeiture). 30 . 807 S.W.2d 732, 739-40 (Tex.Crim.App. 1991) (Clinton, X, concurring) ("While one ca

1996Id,.; see also Higginbotham v. State, 807 S.W.2d 732, 734-38 (Tex.Crim.App.1991).

2019Id. at 908-09 (citing Wilson v. State, 938 S.W.2d 57, 61 (Tex. Crim. App. 1996)).

2004Wilson v. State, 938 S.W.2d 57, 61 (Tex.Crim.App.1996).

2013See also United States v. Brooks , 715 F.3d 1069, 1075 (8th Cir. 2013) ("Under the independent source doctrine, the exclusionary rule is inapplicable where the evidence was acquired through a source independent of the tainted search."); United States v. Oliver , 630 F.3d 397, 408 (5th Cir. 2011) ("Evidence not obtained as a result of police illegality, but rather through a legal, independent source, need not be suppressed."); United States v. Etchin , 614 F.3d 726, 736-37 (7th Cir. 2010) ("when a later-arriving warrant is based on information 'wholly unconnected' to the illegal entry, evidence

2013See also United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir.2013) ("Under the independent source doctrine, the exclusionary rule is inapplicable where the evidence was acquired through a source independent of the tainted search.”); United States v. Oliver, 630 F.3d 397, 408 (5th Cir.2011) ("Evidence not obtained as a result of police illegality, but rather through a legal, independent source, need not be suppressed.”); United States v. Etchin, 614 F.3d 726, 736-37 (7th Cir.2010) ("when a later-arriving warrant is based on information 'wholly unconnected’ to the illegal entry, evidence disco

2008Davis, 195 S.W.3d at 319 ; Ex parte Werne, 118 S.W.3d 833, 837 (Tex.App.-Texarkana 2003, no pet.) (stating that it is of substantial importance when the source of the error is the court itself).

2008Davis, 195 S.W.3d at 319 ; Ex parte Werne, 118 S.W.3d 833, 837 (Tex.App.-Texarkana 2003, no pet.) (stating that it is of substantial importance when the source of the error is the court itself).

2002Fain v. State, 986 S.W.2d 666, 681-82 (Tex.App.—Austin 1998, pet. ref'd.) (noting the appellant’s failure to identify the items allegedly seized and to direct the court’s attention to record where such items were introduced into evidence).

2001Fain v. State , 986 S.W.2d 666, 681-82 (Tex. App.--Austin 1998, pet. ref'd.) (noting the appellant's failure to identify the items allegedly seized and to direct the court's attention to record where such items were introduced into evidence).

2016App. 2013) (“‘Under the independent source doctrine, the exclusionary rule is inapplicable where the evidence was acquired through a source independent of the tainted search.’” (quoting United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir. 2013))).

2013See also United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir.2013) ("Under the independent source doctrine, the exclusionary rule is inapplicable where the evidence was acquired through a source independent of the tainted search.”); United States v. Oliver, 630 F.3d 397, 408 (5th Cir.2011) ("Evidence not obtained as a result of police illegality, but rather through a legal, independent source, need not be suppressed.”); United States v. Etchin, 614 F.3d 726, 736-37 (7th Cir.2010) ("when a later-arriving warrant is based on information 'wholly unconnected’ to the illegal entry, evidence disco

2015Cameron v. State, 988 S.W.2d 835, 847-48 (Tex. App.--San Antonio 1999, pet. ref’d); cf. Lagrone v. State, 942 S.W.2d 602, 620 (Tex. Crim.

1997Orona, 791 S.W.2d at 130 ; Harris, 790 S.W.2d at 587 ; see also Lagrone, 942 S.W.2d at 620 ; Bryant, 923 S.W.2d at 212 .

2013Id. (citing 711 S.W.2d 442, 445 (Tex.App.-Fort Worth 1986, pet. ref'd)) (reasoning that both inevitable discovery and independent source doctrines constitute “judicial exceptions to the judicially articulated exclusionary rule,” and declining to apply those doctrines because Texas’s statutory exclusionary rule plainly “contains no exceptions”).

2004See State v. Daugherty, 931 S.W.2d 268 (Tex.Cr.App.1996)(inevitable discovery doctrine is an exception to the federal exclusionary rule, not the Texas exclusionary rule); Garcia v. State, 829 S.W.2d 796 (Tex.Cr.App. 1992); Oliver v. State, 711 S.W.2d 442, 445 (Tex.App.-Fort Worth 1986, pet’n ref'd)(Texas does not recognize the independent source doctrine as an exception to Article 38.23), cited in Garcia v. State, supra at 799; see also Murray v. United States, 487 U.S. 533 , 108 S.Ct. 2529 , 101 L.Ed.2d 472 (1988)(discussing the independent source doctrine).

2015P. 44.2(a), 66.3(d), 66.3(f), 78.1(d); see Snowden v. State, 353 S.W.2d 815 , 818-25 (Tex.Crim.App. 2011) (providing that the emphasis in review for harm from error in allowing commenting on the right to silence should be on the nature of the error and on the impact of the ruling and that 12 consideration about the source of the error and whether the State should be deterred are no longer appropriate).

2015P. 44.2(a), 66.3(d), 66.3(f), 78.1(d); see Snowden v. State, 353 S.W.2d 815 , 818-25 (Tex.Crim.App. 2011) (providing that the emphasis in review for harm from error in allowing commenting on the right to silence 14 should be on the nature of the error and on the impact of the ruling and that consideration about the source of the error and whether the State should be deterred are no longer appropriate).

2015App. 2013) (holding that the independent source doctrine is not in conflict with Article 38.23 of the Code of Criminal Procedure because “the independent source doctrine by definition applies only to situations in which there is no causal connection between the illegality and the obtainment of evidence”); State v. Daugherty, 931 S.W.2d 268, 271 (Tex. Crim.

2012Moreover, it is highly unlikely that the court of criminal appeals would have announced such a major development in Texas criminal jurisprudence without expressly considering the interrelationship between the independent source doctrine and article 38.23, as it did in Garcia, 829 S.W.2d at 798-800 , and Daugherty, 931 S.W.2d at 269-73 , when analyzing the inevitable discovery doctrine, and as it did in Johnson v. State when considering the attenuation doctrine’s applicability in Texas.

2018Wehrenberg III, 2014 WL 890320 , at *1 (quoting Wehrenberg I, 385 S.W.3d at 727 ).

2014Wehrenberg I, 385 S.W.3d at 727 .

2002Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989); Biggs, 921 S.W.2d at 285 .

1998Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989); Biggs v. State, 921 S.W.2d 282, 285 (Tex.App.—Houston [1st Dist.] 1995, pet. ref'd).

1997Id. at 764-765 .

1997Id. at 764-765 .