State v. Medrano 67 S.W.3d 892

OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which KELLER, P.J., KEASLER, HERVEY, and HOLCOMB, JJ., joined.

The issue in this case is whether article 44.01(a)(5)1 of the Texas Code of Criminal Procedure permits the State to bring a pretrial appeal of an adverse ruling on a motion to suppress evidence when the trial court does not conclude that the evidence was “illegally obtained.” Although this Court, in State v. Roberts, 940 S.W.2d 655 (Tex.Crim.App.1996), held that the State cannot appeal a pretrial evidentiary ruling unless the defendant claims that the evidence was “illegally obtained,” neither the language of the statute nor legislative intent supports this limitation. It is not consistent with the interpretation other state or federal courts have given to the same or similar language in their government-appeal statutes. Moreover, the rule in Roberts has proved unworkable in practice. Therefore, we overrule Roberts and hold that under article 44.01(a)(5), the State is entitled to appeal any adverse pretrial ruling which suppresses evidence, a confession, or an admission, regardless of whether the defendant alleges, or the trial court holds, that the evidence was “illegally obtained.”

I.

Appellee, Matthew Medrano, was charged with capital murder for the robbery-murder of Benton Smith, a pizza delivery man. The State’s only witness to the robbery-murder was Jennifer Erivez, a fourteen-year-old girl, who was standing in the driveway of her home at about 10:00 p.m. waiting for her boyfriend. Jennifer testified that she saw the pizza delivery man drive by and park down the street. Then she saw a maroon car, like a Chrysler LeBaron, drive past slowly and stop under a street light. A man got out of the front passenger side and did something like take the license plate off of the car. Jennifer saw the man’s face clearly, but could not recall the car’s license plate number. The car then drove further down the street and parked behind the pizza delivery man’s truck. The same man got out of the car and walked up to the pizza delivery man. Jennifer heard a gunshot and then saw the man run back to the car. He got in, and the driver sped away.

A few hours later, Jennifer gave police a written description of the person she had seen get out of the car and approach the pizza delivery man:

The front seat passenger is Hispanic, between 17-21 years old, tall, maybe about 6’ tall, medium build, short dark colored hair combed back. I did not see any facial hair, and he was wearing a black long sleeve-shirt and underneath he was wearing a white muscle T-shirt-shirt, loose fitting black pants and black shoes.

Jennifer also stated that the maroon car contained a total of four people. Because she was unable to recall the car’s license *895plate number, an El Paso police officer, trained in hypnosis, conducted a videotaped hypnotic session the next day. She was still unable to recall the license plate number. About a week later, the police conducted two photo lineups for Jennifer. She did not identify anyone in those lineups.2 After she identified Mr. Medrano as the shooter in a third photo lineup two days later, he was arrested and charged with capital murder.

Defense counsel filed a “Motion to Suppress In Court Identification”3 based upon Zani v. State, 758 S.W.2d 238 (Tex.Crim. App.1988), Tex.R. Evid 403, the 6th and 14th Amendments to the U.S. Constitution, and Article 1, Sections 10 & 13 of the Texas Constitution. After a pretrial suppression hearing, the trial judge orally granted the defense motion. Her written order stated that she granted the motion “for the reasons stated on the record” at the hearing and that she “also f[ound] said identification was obtained in violation of the 4th, 5th, 6th and 14th Amendments of the United States Constitution and Article 1. sections 9, 10, 13, and 19 of the Texas Constitution.”

The State certified that it could not prosecute the case without Jennifer’s testimony and filed an appeal with the El Paso Court of Appeals. The Court of Appeals dismissed the State’s appeal for want of jurisdiction. State v. Medrano, 987 S.W.2d 600 (Tex.App.-El Paso 1999). That court concluded:

We find that, although the trial court framed her order to conclude that constitutional provisions had been violated, her findings were the result of a balancing test conducted under Texas Rule of Evidence 403....

Thus, although constitutional implications may be present in this decision, we find it was not a “suppression” in the sense contemplated by Texas Code of Criminal Procedure, Article 44.01(a)(5) and the case law interpreting it.

Id. at 604 (footnote omitted). The State Prosecuting Attorney filed a petition for discretionary review with this Court.4

II.

Article 44.01 was enacted as a vehicle for the State to challenge “questionable legal rulings excluding what may be legally admissible evidence[.]”5 The *896purpose of the statute is to permit the pretrial appeal of erroneous legal rulings which eviscerate the State’s ability to prove its case. The Texas legislature, in passing Senate Bill 762 in 1987, clearly intended to provide Texas prosecutors with the same vehicle of appeal for pretrial evidentiary rulings as federal prosecutors. As this Court noted in State v. Moreno, 807 S.W.2d 327, 332 (Tex.Crim.App.1991), “when our Legislature adopted Article. 44.01 in 1987, it made clear its intent to afford the State the same powers afforded the federal government under 18 U.S.C. § 3731.” There is no question that under 18 U.S.C. § 3731, federal prosecutors may appeal a wide variety of pretrial evidentia-ry rulings-not just those tied to motions to suppress illegally obtained evidence.6 Similarly, there is no question that the federal statute is liberally construed.7 The Texas Legislature modeled art. 44.01 after the corresponding federal provision generally.8 The section at issue here, section *8975(a)(5), mimics “the clarifying nomenclature of the Wisconsin statute,”9 which permits appeals from orders “suppressing evidence.” 10 The Wisconsin Supreme Court has interpreted its statute as allowing the State to appeal any pretrial order barring admission of evidence which would normally be outcome determinative.11

All fifty states, as well as the District of Columbia, have provisions permitting the government to appeal adverse rulings of a question of law.12 Many of those states *898use the same or very similar language as that contained in art. 44.01(a)(5), and they *899permit the State to appeal any pretrial ruling suppressing evidence if that evidence is likely to be outcome determinative.13 Other states explicitly grant the prosecution a broad right to appeal any pretrial suppression, evidentiary or other legal ruling which is likely to determine the outcome of the case.14 A few states explicitly permit the State to appeal only orders excluding “seized evidence,” “evidence illegally obtained,” or “evidence seized in violation of the Constitution.”15 A handful of state courts have construed their government-appeal statutes to permit only appeals of constitutionally-based pretrial rulings excluding evidence.16 At least one state, Ohio, has judicially broadened its government-appeal statute to permit pretrial appeals of nonconstitutional trial rulings excluding evidence, despite language to the contrary.17 Although a few states apply them government-appeal statutes narrowly, the vast majority of courts and legislatures across the nation broadly construe their state’s-right-to-appeal statutes. They focus upon the same major themes: 1) Does this pretrial ruling effectively prevent the government from presenting its case to a jury? And 2) Is the ruling based upon an erroneous interpretation or application of law?

In Roberts, this Court followed that handful of states which have very narrowly construed their state’s right-to-appeal statutes. This Court ruled that it lacked jurisdiction to consider a State’s appeal from a trial court’s ruling that civil deposition testimony was inadmissible. 940 S.W.2d at 660. We held that the phrase “motion to suppress evidence,” as used in article 44.01(a)(5), was limited to motions which sought to suppress evidence on the basis that such evidence was “illegally obtained.” The defendant in Roberts contended that a videotaped deposition from a civil case was inadmissible hearsay; he did not claim that the deposition testimony was illegally obtained. Because the defendant’s motion was not a “motion to suppress evidence” contemplated under art. 44.01(a)(5), went the logic, the order granting the motion was not appealable. RobeHs, 940 S.W.2d. at 660.18

*900In arriving at its conclusion in Roberts, this Court stated that the phrase “motion to suppress” was ambiguous, and so looked to extratextual factors to interpret the statute. We focused primarily upon the “technical” definition of “motion to suppress” in Black’s Law DictionaRy:

Motion to suppress. A device used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth amendment (search and seizure), the Fifth Amendment (privilege against self-incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation, etc.) of the U.S. Constitution.

Roberts, 940 S.W.2d at 658-59 (emphasis in original) (quoting Black’s Law Dictionary (6th ed.1989)).

The Court in Roberts also relied on the fact that the corresponding federal statute authorizes an appeal by the Government, under 18 U.S.C.A. § 3731, “from a decision or order of a district court suppressing or excluding evidence.... ” Texas article 44.01(a)(5) authorizes an appeal from a motion to suppress evidence, but it does not explicitly authorize an appeal from a motion to exclude evidence. In Roberts, this Court reasoned:

[B]y using the term ‘suppress’ alone, not in conjunction with the broader term ‘exclude,’ the Legislature meant to limit the State’s appeal to those instances where evidence is suppressed in the technical sense, not merely excluded.

940 S.W.2d at 659. The legislative history of article 44.01 shows otherwise. The legislative intent, explicitly stated in the Bill Analysis, was to permit the State to appeal any “questionable legal rulings excluding what may be legally admissible evidence.” Period.

When construing arguably ambiguous statutes, courts normally look to the object sought to be obtained, legislative history, and the prior statutory use of a term, as well as other criteria, including dictionary definitions.19 The legislative history of article 44.01, as noted above, demonstrates that the Texas legislature intended to follow the liberal federal interpretation of the government’s right to appeal pretrial evidentiary rulings, as well as that of the vast majority of other states. Furthermore, the Texas Legislature was already familiar with the use of the term “motion to suppress evidence” in the context of pretrial hearings.

The Texas Legislature apparently chose the term “motion to suppress evidence” in article 44.01(a)(5) because pretrial “motions to suppress evidence” can be heard under article 28.01. Article 28.01 outlines the types of motions and pleadings that may be brought pretrial. It states that:

The pretrial hearing shall be to determine any of the following matters:

(6) Motions to suppress evidence— When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on *901the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the eourt[.]

Tex.Code.Crim. Proc. Art. 28.01. Because the only type of pretrial evidentiary motion mentioned in article 28.01 is a “motion to suppress evidence,” it follows that the only type of pretrial evidentiary motion that the State can appeal is the same type that the defendant may file. They are both called a “motion to suppress evidence.”

Under article 28.01, a motion to suppress evidence is one in which the defendant (or the State) claims that certain evidence should not be admitted at trial for a constitutional, statutory, evidentiary or procedural reason. There is no logical, legal, or linguistic reason that a single phrase concerning the same pretrial evi-dentiary motion, should bear one meaning for purposes of which pretrial motions a court may consider, but bear a totally different meaning when the State appeals an adverse ruling on that motion.20 The rule is simple: If the trial court can rule upon a pretrial motion to suppress evidence, the State can appeal it.21 A motion for the goose is a motion for the gander.

The conclusion in Roberts is inconsistent with Texas law concerning pretrial motions which, under article 28.01, § 1(6), do not distinguish between a “motion to suppress evidence” and a “motion to exclude evidence.” There was no reason for the Texas legislature to include “motion to exclude” in article 44.01 because it is not found in article 28.01, either. There is no such statutory term in Texas law as a pretrial “motion to exclude,” either for the defendant to file or for the State to appeal.

Finally, the rule in Roberts is, as this ease demonstrates, unworkable. Who decides whether a pretrial motion to suppress evidence is one that seeks to exclude “illegally obtained” evidence? If the defendant labels his motion as one to suppress illegally obtained evidence, is that determinative? If the defendant cites constitutional provisions, is that determinative? If the trial court, in ruling, cites constitutional provisions, is that determinative? Or, as in this case, if the court of appeals determines that, even though both the defendant and trial judge cited constitutional provisions, the motion (and ruling) was not really a motion to suppress illegally obtained evidence? This is a linguistic puzzle that only Humpty Dumpty or a rejection of Roberts can resolve.

III.

This Court does not lightly overrule precedent. As we stated in Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App.2000):

We follow the doctrine of stare decisis to promote judicial efficiency and consistency, encourage reliance on judicial decisions, and contribute to the integrity of the judicial process. But if we conclude that one of our previous decisions was poorly reasoned or is unworkable, we do *902not achieve these goals by continuing to follow it.

Id. at 571 (footnotes omitted).

As discussed above, the judicial limitation upon the state’s right to appeal established in Roberts was flawed from the outset, has proven unworkable, and creates inconsistency and confusion in the law. Moreover, overruling Roberts would not disrupt judicial efficiency and consistency, or detract from the integrity of the judicial process and the reasonable reliance of litigants. It is hard to conclude that litigants or judges have relied upon the holding in Roberts in drafting, filing, hearing, or ruling upon pretrial motions to suppress evidence. But if litigants or judges have relied upon Roberts and drafted or ruled on pretrial motions to suppress carefully omitting any “illegally obtained” language because of their expectation that those motions and rulings are thereby insulated from appellate review, that rebanee flies in the face of the explicit legislative history and purpose of article 44.01 as set out above. Article 44.01 was enacted to ensure that erroneous pretrial legal rulings would not be insulated from appebate review.

On occasion, we have said that “[w]hen the Legislature meets, after a particular statute has been judicially construed without changing the statute, we presume the Legislature intended the same construction should continue to be applied to that statute.”22 This and similar statements originate from early Texas and common law cases which had stated that: “[w]hen an act or part thereof which has received a judicial interpretation is reenacted in the same terms, or where words used in a statute have a definite and web known meaning in law, that construction or that meaning must be considered to have the sanction of the Legislature unless the contrary appears.”23 Certainly when a legislature reenacts a law using the same terms that have been judicially construed in a particular manner, one may reasonably infer that the legislature approved of the judicial interpretation. There is considerably less force (though still some) to the argument that if a legislature does not agree with the judicial interpretation of the words or meaning of a statute, the legislature would surely have immediately changed the statute. As Judge Dally noted in his concurring opinion in Shivers v. State:24

the legislative silence toward the rules stated in [a prior case] should not be interpreted as legislative acceptance of that decision. In Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604 (1940), it is stated that “It would require very persuasive circumstances enveloping Congressional silence to debar this Court from re-examining its own doctrines.” In Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946), it was stated that “It is at best treacherous to find in Congressional silence alone the adoption of a controbing rule of law. We do not think under the circumstances of this legislative history that we can properly place on the shoulders of Congress the burden of the Court’s own error.” See also Boys Markets, Inc. v. Retail Clerks Union, Local *903770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Therefore, in the absence of any persuasive circumstances evidencing a clear design that legislative inaction be taken as acceptance of [a prior case], the mere silence of the Legislature is not a sufficient reason for refusing to reconsider that decision. Boys Markets, Inc. v. Retail Clerks Union, Local 770, supra.

Thus, while this Court should consider the fact that the legislature did not immediately amend article 44.01(a)(5) in reaction to the Roberts decision, legislative inaction does not necessarily equate to legislative approval. The Legislature is not required to repair our error, nor are we forbidden to do so ourselves. Given the explicit legislative purpose announced in the written Bill Analysis and throughout the oral hearings on the 1987 state’s-right-to-appeal bill, the fact that this extensive legislative history was never consulted or discussed in Roberts, and the longstanding and definite meaning of the term “motion to suppress evidence” used in both arts. 28.01 and 44.01, we conclude that the Legislature adequately expressed its intent at the time in originally enacted article 44.01. It did not need to re-iterate that intent by amending the statute after Roberts.

We therefore, overrule Roberts because article 44.01(a)(5) is not limited solely to pretrial rulings that suppress “illegally obtained” evidence. The State may appeal an adverse ruling on any pretrial motion to suppress evidence as long as the other requirements of the statute are met.

IV.

The trial court’s ruling in this case does not involve evidence which would normally be considered “illegally obtained.” Still, the ruling excluding Jennifer’s identification testimony — which was a legal ruling excluding evidenee-is appealable under article 44.01(a)(5) if it could be determined pretrial under article 28.01, § 1(6). Relying on the standards concerning the admissibility of post-hypnotic testimony set out in Zani v. State, 758 S.W.2d 233 (Tex. Crim.App.1988),25 the trial court orally ruled that Jennifer’s identification of Mr. Medrano was inadmissible. After hearing arguments from the prosecutor, the trial court affirmed her oral order with a written ruling that specifically held that the identifications were obtained in violation of the United States and Texas Constitutions. The trial court’s written ruling falls squarely within the rulings intended to be appealable under Article 44.01.

Therefore, we vacate the decision by the court of appeals which held that it had no jurisdiction to hear the State’s appeal and remand to that court to determine the merits of this appeal.

JOHNSON, J., filed a concurring opinion.

WOMACK, J., joined by PRICE, J., filed a dissenting opinion.

MEYERS, J., not participating.

JOHNSON, J.,

filed a concurring opinion.

I concur only in the decision to remand.

After a brief statement explaining the meaning and purpose of Art. 44.01(a), the majority opinion sets out an interpretation of the legislative intent behind the statute and continues into a detailed analysis of what similar federal statutes and statutes from other states say and how those states *904have chosen to interpret their own statutes. As Judge Womack notes, the basis for the majority’s understanding of legislative intent leans heavily on the testimony of non-legislator witnesses. This Court does not have the authority to delve into the legislative history of statute or to interpret what the statute means without first finding that the plain language of the statute is ambiguous or that the “plain language would lead to absurd consequences that the Legislature could not possibly have intended .... ” Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991)(emphasis in original). This the majority does not do.

In addition, the majority’s rationale for overruling State v. Roberts, 940 S.W.2d 655 (Tex.Crim.App.1996) distorts this Court’s precedent and authority. There are several problems with the majority’s analysis. First, long-standing case law says explicitly that if the legislature does not amend a statute after it has been judicially construed, we assume that the legislature approved the judicial construction. State v. Hardy, 963 S.W.2d 516, 523 (Tex.Crim. App.1997); Marin v. State, 891 S.W.2d 267, 271-272 (Tex.Crim.App.1994). Contrary to that long-established precedent, the majority contends that “legislative inaction does not necessarily equate to legislative approval.” Whether or not that is true, the assertion is made without reference to any authority. Second, not only did the legislature not “immediately amend” article 44.01(a)(5) in response to RobeHs, it has not, to this day, made any changes in it. Third, if this Court can overrule precedent simply by saying that it can, what has become of stare decisis? Are we now to decide issues without even considering the collected wisdom of the past? Finally, how are we to know when legislative inaction following a judicial interpretation of a statute is agreement with the interpretation and when it is the legislature sitting back and waiting for this Court to recognize that it has made an error and remedy that error on its own?

The majority also leaves questions unanswered. For example, it refers three times to the “many” states which allow state appeals of pretrial orders suppressing evidence which are “outcome determinative,” ante at 897-99, but does not speak to what should be done if the order is not “outcome determinative.” Are the rules the same? If not, how are they different?

While the question of whether RobeHs should be overruled may a valid one, in my estimation the deficiencies in the legal analysis of the majority prevent its opinion from giving a satisfactory answer.

WOMACK, J.,

filed a dissenting opinion in which PRICE, J., joined.

I believe that the Court both overstates and understates the requirements of stare decisis in this case. A quick review of the basics is in order:

Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Adhering to precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.” Nevertheless, when governing decisions are unworkable or are badly reasoned, “this Court has never felt constrained to follow precedent.” Stare decisis is not an inexorable command; rather, it “is a principle of policy and not a mechanical formula of adherence to the latest decision.” This is particularly true in constitutional cases, because in such cases “correction through legislative action is practically *905impossible.” Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases such as the present one involving procedural and ev-identiary rules.1

Because this Court usually fails to differentiate the kinds of law that are before it, it usually overstates the role of stare decisis by parroting platitudes from dissimilar cases. As the preceding paragraph makes clear, cases of criminal procedure are not like cases of substantive law. And this Court makes no substantive law; it has only a limited role in making procedural and evidentiary law through its opinions.

I say that this Court does not make substantive criminal law because there is no common law of crimes in Texas.

While other States may imply duties or derive them from the common law, under the laws of this State notice of an offense must invariably rest on a specific statute. This notion is firmly rooted in the evolution of Texas criminal jurisprudence. Since the days of the Republic and early statehood, Texas courts have been prohibited from allowing common law duties to form the basis of criminal sanctions. See, e.g., Republic v. Bynam, Dallam 376 (1840) (Texas statutes intolerant of constructive offenses and constructive punishments); Cain v. State, 20 Tex. 355 (1857) (prosecution is prohibited for what was an offense at common law, but not made penal by our statutes). That longstanding prohibition is specifically embodied in our Penal Code, which provides that “conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.” Penal Code, § 1.03(a).2

The power to create and define offenses which rests within the sound discretion of the legislative branch of government, necessarily includes the power to establish and define the defenses.3 When a statutory defense applies to the facts of a criminal case, a non-statutory defense is not available.4

Furthermore, because the authority to establish what constitutes a defense rests solely with the Legislature, this Court concludes a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction. The term defense should not be used for an issue that has not been specifically labeled as such by the Legislature.5

Therefore this Court cannot create, much less alter, a common law of criminal offenses or defenses.

The common-law jurisprudence of this Court is limited to evidentiary and procedural matters — and not much of that. “As a general matter, ... Texas criminal procedure has been characterized by legislative control over substance.”6 This includes a number of statutory rules of *906evidence, while most of the rest of our evidence law is codified in our Rules of Evidence. Most of our cases call on us to construe and apply the provisions of constitutions and statutes and rules. Today’s case is such a one.

The general principles of stare decisis for “rules of law” that the Court considers 7 have little, if anything, to do with this case because we have not made a rule of law. We have only construed the rule the legislature made.

When it comes to construction of criminal-procedure statutes, the demands of stare decisis may be even lower than in cases of court-made procedure because the legislature sometimes can correct a wrong decision. This is why we often attach importance to the legislature’s failure to amend a statute that we have construed. The notion is that we must have got it right, since the legislature could easily have acted if we got it wrong.

The Court points out that legislative inaction does not necessarily equal legislative approval.8 No one could argue the opposite, that is, that legislative action necessarily equals legislative approval. A court must examine the statute, the judicial construction, and the legislative response.

The Court relies on a concurring opinion that quotes two opinions of the United States Supreme Court.9 If one reads those opinions, rather than the three sentences that are quoted, one can get an idea of the factors that can be considered.

In Helvering v. Hallock,10 the Supreme Court did not renounce its prior construction of a statute as we do today. The problem was not with the first construction; it was with two later opinions that were contrary to the principle of the first. The Court adhered to the construction it had first made, and rejected the argument that Congress had tacitly approved the two later cases.

Our problem then is not that of rejecting a settled statutory construction. The real problem is whether a principle shall prevail over its later misapplications. Surely we are not bound by reason or by the considerations that underlie stare decisis to persevere in distinctions taken in the application of a statute which, on further examination, appear consonant neither with the purposes of the statute nor with this Court’s own conception of it. We therefore reject as untenable the diversities taken in the [two later] cases in applying the [earlier case’s] doctrine — untenable because they drastically eat into the principle which those cases professed to accept and to which we adhere.11

In terms of the present statute, the analogous situation would be that after our Roberts decision we had held that the statute did not authorize the State to appeal an order suppressing contraband because contraband is not evidence. Legislative inaction would not prevent us from overruling the later holding and returning to our original construction.

The other case from which the majority quotes is Girouard v. United States,12 in *907which the Court overruled three prior decisions that the oath of citizenship required the immigrant to agree to bear arms for the United States. The statute contained no such language. Bills to overrule those decisions had been introduced in Congress but never reported out of committee. The Court declined to attach importance to the statute’s not being amended because the case could be resolved by reference to an action that Congress had taken later.

But for us, it is enough to say that since the date of those cases Congress never acted affirmatively on this question but once and that was in 1942. At that time, as we have noted, Congress specifically granted naturalization privileges to noncombatants who like petitioner were prevented from bearing arms by their religious scruples. That was affirmative recognition that one could be attached to the principles of our government and could support and defend it even though his religious convictions prevented him from bearing arms. And, as we have said, we cannot believe that the oath was designed to exact something more from one person than from another. Thus the affirmative action taken by Congress in 1942 negatives any inference that otherwise might be drawn from its silence when it reenacted the oath in 1940.13

There is no ready analogy for the present statute because the decision that the Supreme Court overruled had added a requirement to the statutory language, while our RobeHs decision declined to add “or excluding” to the statute. The point is that the Supreme Court opinion from which the majority extracts a quote today was decided on the basis of subsequent legislative action, not inaction. It is not helpful for deciding the case before us now.

To my mind, the evaluation of legislative silence should take into account whether the judicial construction increased or decreased the scope of the statute, and the difficulty of a legislative correction. A construction that decreased the scope of a statute is more defensible than one that increased its scope, for the same reason that remittitur is more defensible than ad-ditur; that is, the verdict or statute that is under review carries approval of every lesser component that is included in the “face value,” but there has been no such approval of any greater value. And if the statute could easily be set right by clarifying language, the legislative choice not to do so has more significance for me.

In 1996 we held that Code of Criminal Procedure article 44.01’s authorizing an interlocutory appeal by the State from a ruling that grants a “motion to suppress” evidence does not extend to all rulings that exclude evidence. We said that “suppressing” evidence connoted a ruling that the evidence was illegally obtained, while “excluding” evidence connoted a ruling that the evidence was inadmissible for other reasons.14

Today the Court says this holding was wrong because the legislature “modeled art. 44.01 after the corresponding federal provision generally,”15 a statute that permits an appeal by the government from suppression or exclusion of evidence. I want to point out four things. First, drafting a statute to apply only to “suppressing” is an odd way of modeling on the federal statute that specifies both “sup*908pressing” and “excluding.” 16 Second, our 1996 decision was based on the language of the statute, which is more important than the intentions and interpretations of witnesses who supported the act, which are the primary support for today’s decision. “It is the law that governs, not the intent of the lawgiver,”17 much less the intent of the lawgiver’s committee witnesses. But this is only to rehash the 1996 decision of the Court.

In 2002 the more important points are my third and fourth: Today’s construction of the ambiguous word increases the scope of the statute, applying it to “excluding” evidence as well as to “suppressing” it. And if that is the correct scope of the statute, the legislature had but to amend the statute by inserting the words “or excluding.” Three sessions of the legislature have intervened since our decision, with no action. In this case, that is significant.

If this case were the opposite (if the statute had read “suppressing or excluding evidence,” and we had held that it did not apply to the excluding of evidence) legislative inaction might mean little or nothing. What could the legislature do to express more clearly that the statute applied to the excluding of evidence? But when the statute says it applies only to “suppressing” evidence and this Court held that “suppressing” does not mean every “excluding” of evidence, the remedy is quick and easy.

If we have misconstrued a statute that is stated clearly, what can the legislature do? Reenact the statute with the additional phrase, “and we really mean it”? When we have misconstrued a criminal-procedure statute that is unambiguous, stare decisis has its least force. In such a case we should be more free to overrule our earlier decision. A recent example was our reconsideration of the statute that limited appeals from negotiated pleas of guilty. The statute said that before a defendant in such a case could appeal, “he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.”18 In 1996 we held that defendants in such cases who neither had permission of the trial court nor were appealing matters raised by written pre-trial motions, could appeal the voluntariness of their pleas.19 Our addition of this third class of appeals was contrary to the clear language of the statute. The legislature would have been hard pressed to amend the statute to make it more clear than it was, since it already said that only two classes of plea-bargained convictions could be appealed. I agreed with the Court that in such a case, stare decisis notwithstanding, the decision would no longer be followed.20

*909If we were considering the meaning of Article 44.01(a)(5) for the first time, I might hold that the statute means what the Court says today. But to do so after the legislature has failed three times to “correct” our construction is contrary, not so much to the rule of stare decisis as to the Division of Powers Article of the Constitution.21 Are we not effectively amending this statute to read as its federal counterpart reads, when the Legislature that enacted it did not do so and three successive Legislatures have chosen not to do so? I do not think this action is compelled by the language of the statute, and I would not undertake it.

The Court’s other argument that “suppress evidence” means “suppress or exclude evidence” is by reference to Code of Criminal Procedure article 28.01, which provides the procedure for a pretrial hearing like the one that was held in this case. Section 1 of the article says, “The pretrial hearing shall be to determine any of the [eleven] following matters: ... (6) Motions to suppress evidence.” The Court reasons thus: pretrial hearings are to determine motions to suppress evidence; the motion that was filed in this case was decided at a pretrial hearing; therefore it must have been a motion to suppress evidence.22

If the Court’s argument were valid, there would be an equally valid argument that would rely on Roberts rather than overruling it: Pretrial hearings are to determine motions to suppress evidence; this was a motion to exclude evidence, not to suppress evidence (State v. Roberts)-, therefore the trial court erred to decide the motion at a pretrial hearing.

Neither argument is valid, because the first premise is insufficient to justify the conclusion. Although pretrial hearings are for motions to suppress evidence (and the other matters that are fisted in Article 28.01, section 1), they are not for only those matters. There are two reasons. On its face, the statutory fist is not exclusive, so the pretrial hearing is not limited to the eleven items on the fist.23 Even if it were exclusive, one item on the fist is “(2) Pleadings of the defendant,” which include “any other motions or pleadings permitted by law to be filed.”24 It was, therefore, proper for the appellee to file and the court to decide a motion to exclude, not suppress, evidence.25 So the Court’s conclusion that the pretrial motion must be a motion to suppress is invalid.

I confess that the Court’s holding, that Article 44.01(a)(5) authorizes an interlocutory appeal of a decision to exclude evidence, is tempting. The five assistant district attorneys who are quoted in the opinion26 made strong arguments why the State should be allowed to appeal pretrial rulings excluding evidence. But the statute that was enacted did not allow it, and *910it still does not. We have no authority to change the statute. I respectfully dissent.