Texas Rule of Criminal Evidence 1101(D)(4)
In McVickers v. State, 874 S.W.2d 662 (Tex. Crim. App. 1993) the Court held that the rules of evidence apply at a hearing on a motion to suppress evidence.
The Court based this holding upon the language of Texas Rule of Criminal Evidence 1101(d)(4), which provided:
In the following proceedings these rules apply to the extent matters of evidence are not provided for in the statutes that govern procedure therein or in another court rule prescribed pursuant to statutory authority:
(4) Motions to suppress confessions, or to suppress illegally obtained evidence under Texas Code of Criminal Procedure article 38.23.
Former rule 1101(d)(4) was not incorporated into the current rules of evidence. Absent that provision, the controlling rule is Texas Rule of Evidence 101(d)(1)(A), which provides:
These rules, except with respect to privileges, do not apply in the following situations:
(A) the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104.
In turn, Rule 104(a) provides:
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).
In making its determination the court is not bound by the rules of evidence except those with respect to privileges.
Because suppression hearings involve the determination of preliminary questions concerning the admissibility of evidence, the language of the current rules indicates that the rules of evidence (except privileges) no longer apply to suppression hearings.
This conclusion is consistent with the United States Supreme Court's interpretation of the Federal Rules of Evidence, which has a counterpart to Rule 104(a) but has never had a counterpart to former Rule 1101(d)(4).