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Click here for the full text of this decision FACTS:The appellant was charged with and convicted of burglary of a habitation with the intent to commit sexual assault. To prove appellant’s intent to commit sexual assault, the prosecution presented, as part of its case-in-chief under Texas Rule of Evidence 404(b), evidence of a similar offense that appellant committed in Arizona in April 1995 before he moved to Texas. The victim of the Arizona offense testified in the Texas prosecution that someone (whom she could not identify) broke into her apartment and sexually assaulted her. This person took a pair of the Arizona victim’s panties. The Texas prosecution proved beyond a reasonable doubt that appellant committed the Arizona offense by comparing legally-obtained-in-Texas DNA samples of appellant to legally-obtained DNA samples in a rape kit that the Arizona victim had submitted soon after she was attacked. This comparison evidence proved that the Arizona rape kit contained appellant’s DNA. The appellant claimed at trial, as he does here, that the Arizona extraneous offense (which appellant had been charged with in Arizona) should not have been admitted into evidence in the Texas prosecution because the Arizona extraneous offense “had been suppressed by the Arizona courts.” The facts relevant to this claim show that in 1995 Arizona police were investigating a series of crimes that involved someone (known as the “midtown rapist”) breaking into the homes of females, sexually assaulting them and stealing their panties. Claiming at the Arizona suppression hearing that only a “Terry stop was legitimate,” appellant’s Arizona counsel claimed that appellant’s arrest was illegal because it was not supported by probable cause. The Arizona trial court agreed and suppressed the “blood/DNA test” as the fruit of appellant’s illegal arrest. Also finding that there was “no other untainted evidence upon which to proceed,” the Arizona trial court “reluctantly” dismissed the Arizona case. Arizona prosecutors did not have this ruling reviewed on appeal. Appellant claimed on direct appeal that the Texas prosecution “improperly used the appellant’s identity that was a by product of the illegal arrest in Arizona as a basis for making the case in Texas.” HOLDING:Affirmed. There are attenuating factors that dissipate the taint of appellant’s illegal arrest from any derivative evidence that may have been obtained as a result of it. There is the passage of over four years between the illegal arrest and the acquisition of the comparison evidence in the Texas prosecution. Also, there is the intervening circumstance of appellant’s commission of similar crimes in Texas after the exclusionary rule was applied in Arizona, allowing him to escape prosecution for his crimes there, resulting in more crime victims in Texas. The most important consideration is that Texas authorities (against whom appellant seeks application of the exclusionary rule) did not violate appellant’s Fourth Amendment rights. The primary objects of the exclusionary rule in this case are the Arizona authorities who illegally arrested appellant. Application of the exclusionary rule in the Texas prosecution would have “marginal or nonexistent” benefits of deterring Texas and Arizona authorities from committing Fourth Amendment violations. The remedial objectives of the exclusionary rule are most efficaciously served by having applied it to the Arizona prosecution and not by applying it to the Texas prosecution. The court rejects appellant’s argument that his identity should be suppressed as a by-product of his illegal arrest in Arizona. OPINION:Barbara P. Hervey, J., delivered the opinion of the Court in which Keller, PJ., Meyers, Keasler, and Holcomb, JJ., join. CONCURRENCE:Price, J., filed a concurring opinion. “I agree with Judge Womack’s concurrence that, because the evidence used in Texas was not illegally obtained, the evidence was admissible. But I reach that conclusion after considering 1. whether there was a causal connection between the appellant’s arrest in Arizona and the evidence used in Texas and 2. whether the taint of the illegal arrest was attenuated. I conclude that there was a causal connection and that the taint was attenuated.” CONCURRENCE:Womack, J.; Johnson and Cochran, JJ., join. “The court of appeals held that the appellant’s Fourth Amendment objections were properly overruled because no evidence that was obtained from the illegal seizure in Arizona was admitted in his trial in Texas. See Thornton v. State, No. 2-01-152-CR (Tex. Ct App. – Fort Worth Dec. 12, 2002) (unpublished). I agree, and on that basis I concur in the judgment of the Court.”

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