The issue before us involves the admission of an audio recording of a conversation between White, his co-defendant Ronald Robey, and a third party named "Brandon." The trial court admitted the recording into evidence over White's objection that it was inadmissible under Texas Code of Criminal Procedure Article 38.23. 3 White argued on appeal that the recording was inadmissible under Article 38.23 because the State failed to prove that the recording was legally obtained and not in violation of Texas Penal Code § 16.02 (illegal wiretapping). 4 The court of appeals held that "the trial court was authorized in finding the admission of the recording was not barred by Article 38.23." 5 We agree with this ultimate conclusion and therefore affirm the judgment of the court of appeals.

BACKGROUND

Jason Earnhardt and his wife, complainants, were the sole owners of Earnhardt Restoration and Roofing ("ERR"). They had a business bank account at JP Morgan Chase. In May 2012, Earnhardt hired Ronald Robey as a sales manager to solicit business and hire salespeople to go door-to-door in neighborhoods that had been hail-damaged. Robey hired White and J.D. Roberts. All three signed a "project manager agreement," under which ERR agreed to pay the salesperson 50% of the net profit realized from each roofing job.

In June 2012, a storm hit Dallas and Collin Counties, causing extensive hail damage. Homeowners Mary Lou Thurman and Andrew McAdoo testified that in June 2012, White, on behalf of ERR, solicited business from them to fix their roofs. They each gave a check, payable to ERR, to White. Homeowners Inderjit Sethi, Siva Sankaramanch, and Jessica Carlton testified that in June and July 2012, J.D. Roberts, on behalf of ERR, solicited business from them to fix their roofs. They each gave a check, payable to ERR, to Roberts. All five checks totaled $32,822.04.

In late July 2012, Earnhardt became aware that some of ERR's customers had written checks that he had never received. Earnhardt also learned that ERR had customers he was not aware of. During that same time, ERR started receiving hundreds of calls and emails based on Craigslist ads that Earnhardt had not posted or authorized. As a result, Earnhardt had to shut down ERR's phone system. During that time, Robey had stopped coming to the office, and he had stopped communicating with ERR.

A man named "Brandon" contacted Earnhardt by telephone shortly thereafter.

*149 Brandon told Earnhardt that he worked as an IT person for Robey, White, and Roberts. Brandon sent Earnhardt a copy of a recorded conversation on which Robey, Brandon, and White can be heard talking about the Craigslist postings used to "blow the phones up" at ERR. Earnhardt contacted the police.

The police investigation revealed that on July 30, 2012, an assumed name certificate was filed in Collin County under the name Earnhardt Restoration & Roofing, and listing Robey, Roberts, and White as owners. They had all signed the certificate and used it to open bank accounts under ERR's name, listing the three of them as owners of the bank accounts. White, Robey, and Roberts then deposited customers's checks made out to ERR directly into the accounts. Earnhardt was unaware of these accounts and was never given access to them.

Robey, Roberts, and White were all charged with engaging in organized criminal activity and money laundering. White and Robey were tried together. Robey testified at their trial, but White did not. He admitted to entering into a partnership with Roberts and White to file the assumed name certificate, open the bank accounts, and deposit the ERR checks. Robey also admitted that he and Brandon had placed the fake Craigslist ads in order to shut down ERR's phones and prevent Earnhardt from finding out what they were doing. Brandon was not charged in connection with his involvement in these activities.

THE AUDIO RECORDING

On the first day of trial, the jury was selected and sworn. The jurors were then allowed to leave for the day and instructed to return the next morning. That afternoon, the trial court agreed to hear arguments on the issues raised in the defendants's motions in limine, one of which involved the admissibility of the audio recording. No witnesses were presented at this hearing. The State had indicated that it intended to present as evidence the audio recording Earnhardt received from Brandon and to use Earnhardt to authenticate the audio recording. Defense counsel 6 objected, arguing that Earnhardt could not properly authenticate the recording, and that it was illegally obtained because Earnhardt was not a party to the conversation. Defense counsel asked the court to be able to take Earnhardt on voir dire at the appropriate time during trial in order to show that the recording was inadmissible. The State responded that Earnhardt would be able to identify the three voices on the recording, and that Earnhardt would testify that the recording was given to Earnhardt by Brandon, one of the three people heard in the recording. The trial court judge listened to the recording, and then continued the pretrial hearing. Defense counsel argued that there was "nothing to indicate on the recording itself that anyone was aware that the conversation was being recorded." The trial court judge responded by asking whether there was "anything that says that Brandon was not aware[,] like someone else reportedly gave it to Brandon?" Defense counsel answered that he did not "even know if Brandon is a real person's name or if that's just a made up name." The trial court judge observed that "somebody says Brandon on the audio." Defense counsel concluded his argument by objecting to the recording's admissibility based on the reason that "we don't know where the recording was *150 created[;]" [w]e don't know when the recording was actually created[;]" "[a]nd there's certainly nothing on the recording itself that would suggest that the parties were aware they were being recorded." The trial court ruled that, "assuming the State lays the appropriate predicate," the recording would be admitted because the issues raised by the defense go "more to weight than admissibility."

When the State called Jason Earnhardt to the stand during the trial, he testified that in late July 2012, ERR started receiving hundreds of calls and emails based on fake Craigslist ads. He had to eventually shut down ERR's phone system because of these calls. Earnhardt testified that, shortly thereafter, he received a telephone call from Brandon, and that Brandon sent him a copy of an audio recording. Earnhardt testified that the three voices on the audio recording were Robey's, White's, and Brandon's. Earnhardt testified that he had worked with Robey and White and that they had "very distinct voices." Earnhardt also said that, although he had never met Brandon face-to-face, he recognized his voice as the person who had called him, who had identified himself as Brandon, and who had sent him this recording.

After the State offered the recording into evidence, the trial court then allowed defense counsel to take the witness on voir dire (the jury was not excused at that time). Defense counsel asked Earnhardt several questions regarding Earnhardt's knowledge of the recording and whose voices were on it. No evidence was elicited from Earnhardt indicating that the conversation was recorded by someone other than Brandon. Defense counsel then objected that the audio recording was hearsay, that the State had not established a proper foundation, and that it had not been established to be a "legally-obtained recording." 7 Without any response from the State, the trial court overruled the defense objections and admitted the recording into evidence.

Robey testified in his defense. He said that he did not know that he was being recorded, but he confirmed that the three voices on the recording were his, White's, and Brandon's. Robey also testified that, although he did not know at the time he was being recorded, he believed that Brandon had recorded the conversation. When asked who Brandon was, Robey responded:

He was supposed to provide Web site development or build a Web site for us. And that's not my specialty, Web sites and things. So, he was going to built [ sic ] a Web site and Facebook and those kinds of things for our new company that we were trying to start.... I believe he was in Mexico. We were sending money orders to San Juan, Mexico to pay him.

*151 Robey testified that he talked to Brandon "twice a day," and he believed that Brandon sent four recorded conversations to Earnhardt. On cross examination, Robey admitted that he and Brandon posted Craigslist ads, and that he "direct[ed Brandon] to post Craigslist ads to shut down Jason Earnhardt's phone system." 8

On direct appeal, the court of appeals concluded that the audio recording was admissible, stating that, "[s]ince [A]ppellant never produced evidence of a statutory violation, the State never had the burden to prove that Brandon was the person who recorded the conversation. Therefore, the trial court was authorized in finding that the admission of the recording was not barred by Article 38.23." 9 Because the court of appeals decided the case in the way that it did, the following issue was presented to us for review:

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).

However, this issue cannot be resolved with a bright-line rule, particularly since the facts and circumstances in this case do not lend themselves to a bright-line rule. As explained below, in this particular case, regardless of who may have had the initial burden of proof-whether the defense had the burden to show statutory non compliance or the State had the burden to show statutory compliance-there was enough evidence in the record as a whole to support the trial court's decision to admit the recording into evidence. Therefore, as we explain below, although the court of appeals came to the right decision to affirm the conviction, it was unnecessary for the court of appeals to resolve the case on the basis that it did. 10

ANALYSIS

I.

As a "general" rule, if a party *152 seeks to have evidence admitted 11 during trial, that party usually has the burden to prove that the evidence is admissible: "In our criminal justice system, the proponent of evidence ordinarily has the burden of establishing the admissibility of the proffered evidence." 12 The proponent of the evidence must identify to the trial court the basis of admissibility for the proffered evidence. 13 "[O]ur statement from Vinson remains valid law in Texas." 14

However, under this general rule, the proponent's burden is not triggered "unless and until" the opponent of the evidence raises "a specific objection" to such evidence. 15 It is only "[o]nce the party opposing the evidence objects ... [that] the proponent bears the burden of demonstrating its admissibility." 16 In other words, once the party opposing the admission of evidence satisfies their burden of properly objecting, 17 the proponent of the evidence must show, or must have satisfactorily shown, that they have carried their burden of demonstrating, by a preponderance of the evidence, that the evidence is admissible. 18

*153 In this case, defense counsel objected to the admission of the audio recording offered by the State. During the pretrial hearing on the defense's motion in limine, defense counsel argued that the audio recording was illegally obtained:

It's clearly a surreptitiously recorded conversation between two people or three people that the witness was not a party to. And so he can't consent to it regardless of where and when the recording took place. It's the equivalent of a wiretap, Your Honor, frankly.... [W]e don't know where the recording was created. We don't know when the recording was actually created. And there's certainly nothing on the recording itself that would suggest that the parties were aware they were being recorded. 19

At that time defense counsel did not specifically argue that the evidence was inadmissible under Article 38.23. However, his pre-trial argument that the recording was "the equivalent of a wiretap" was sufficient to alert the trial court and the State that defense counsel was going to oppose the admission of the recording because he claimed it was illegally obtained.

When the State offered the evidence at trial, defense counsel attempted, during his voir dire of the complainant, to establish that the recording was illegally obtained. We note that, when a party seeks to establish the absence of something, such as the lack of a warrant or, as in this case, the absence of consent, this can be done by questioning a witness. After defense counsel questioned Earnhardt in an attempt to establish the illegality of the recording, he again objected to the admission of the recording: "I'll object as to hearsay. I don't think they've established a proper foundation, and I don't think that they've established that it was a legally-obtained recording as well, Your Honor." Again, although defense counsel did not specifically cite to Article 38.23 in *154 his objection, the record made it clear that the trial court understood the legal basis for the objection. 20 The trial court overruled the objections and admitted the recording. Defense counsel did not request an Article 38.23 jury instruction. 21 *155 II.

Although the proponent of evidence ordinarily has the burden to establish admissibility, it has long been held that when the defendant has filed a motion to suppress challenging the admissibility of evidence under the Fourth Amendment, that defendant has the burden to produce some evidence at the hearing on the motion to suppress in order to prove that the evidence was illegally obtained. 22 Even though it has been observed that the burden shouldered by the defendant in a motion to suppress hearing is different from the State's burden to prove admissibility at trial, 23 this Court has said before that "[a] 'motion to suppress' evidence is nothing more than a specialized objection to the admissibility of that evidence." 24 In fact, in 1977, in Roberts v. State , this Court explained that,

The defendant's counsel may either file a pretrial motion to suppress evidence or he may wait until the trial on the merits and object when the alleged unlawfully obtained evidence is offered. The trial court, to determine whether there is probable cause for an arrest, has the option of either hearing a motion to suppress the evidence prior to trial or of the [ sic ] waiting until the defendant's counsel makes an objection at the trial on the merits when the alleged unlawfully obtained evidence is offered. Whether the issue of the unlawful arrest is presented in a pretrial hearing to suppress *156 or during the trial on the merits, the State has the burden of showing that there was probable cause for a warrantless arrest. Contrary to the appellant's argument there is no difference in the State's burden of proof whether the issue is presented at a pretrial motion to suppress hearing or at the trial on the merits. 25

In equating the State's burden at a pretrial motion to suppress to its burden to prove admissibility during trial, this Court in Roberts evidently presupposed that the defendant had already met the initial burden of establishing the absence of a warrant. Thus, we can arguably interpret Roberts as supporting the conclusion that, in a case involving a warrantless arrest, search, or seizure, it would appear that, whether the defendant brings a pre-trial motion to suppress, or objects at trial , the defendant would still have to initially prove that there was no warrant. 26

In this case, citing to this Court's decision in State v. Robinson , 27 the court of appeals followed the rule regarding who has the burden of proof in a motion to suppress hearing instead of following the general rule regarding who has the burden to establish admissibility at trial, and it assigned the same burden of proof to White as if he had brought a pre-trial motion to suppress. In Robinson , this Court held that the defendant seeking to have evidence suppressed had the burden of producing evidence of "a statutory violation" before the burden shifted to the State to prove statutory compliance. In Robinson , because the defendant "never produced evidence of a statutory violation," this Court held that the trial court "erroneously placed the burden of proving statutory compliance on the State." 28 In this case, following Robinson , the court of appeals held that, since White "never produced evidence of a statutory violation, the State never had the burden to prove that Brandon was the person who recorded the conversation." 29

III.

We agree with the court of appeals's holding that the trial court did not err in admitting the audio recording. But it was unnecessary for the court of appeals to rely on Robinson to support its holding. Nevertheless, while we may not agree with the court of appeals's blanket adoption of Robinson as the controlling authority under these facts, we are not prepared to distinguish Robinson and similar cases 30 from this case simply because those cases were decided in the context of a pre-trial *157 motion to suppress. 31 This case can instead be decided based on the evidence in the record as a whole, not based on who had the initial burden of proof. We hold that the preponderance of the evidence before the trial court established that the audio recording was admissible.

During the trial, the State presented evidence, through Earnhardt's testimony, that Earnhardt received a call from Brandon. Earnhardt testified that Brandon gave him the copy of the recording. He identified Brandon's voice on the recording because he had talked to him on the phone. This testimony was uncontroverted. No evidence was elicited from Earnhardt, or from any other witness, indicating that the conversation between White, Robey, and Brandon was recorded by someone other than Brandon, or that the recording was made without Brandon's consent, or that the recording was furnished to Earnhardt by anyone other than Brandon.

By the time defense counsel objected to the admission of the recording during Earnhardt's testimony, the State had already presented enough evidence to prove by a preponderance of the evidence that Brandon had recorded the conversation, and that evidence supported the State's position that the recording had been legally obtained. White presented no additional evidence to contradict the evidence that had been presented by the State. In fact, the record contains evidence elicited from the defense confirming that Brandon had recorded the conversation and sent the recording to Earnhardt because Robey admitted that fact when he testified for the defense. 32

In light of the evidence that was presented by the State, supporting its position that the recording was legally obtained, and without any controverting evidence presented by White to support his position that the recording was illegally obtained in violation of § 16.02, we hold that the evidence presented by the State was sufficient to establish, by a preponderance of the evidence, that the audio recording was admissible. 33 Thus, the trial court judge *158 did not abuse her discretion in admitting the audio recording into evidence. We therefore affirm the judgment reached by court of appeals.

Keller, P.J., filed a concurring opinion in which Keasler, Yeary, and Keel JJ., joined.

Keller, P.J., filed a concurring opinion in which Keasler, Yeary, and Keel, JJ., joined.

The court of appeals based its decision in this case on our opinion in Robinson . 1 Appellant says the present case is different because Robinson involved a pre-trial motion to suppress and this case involves evidence offered at trial. This distinction is superficially appealing but it is, in my opinion, ultimately untenable. There is a better way to determine who has the burden in questions of admissibility of evidence. I write separately to explain my view.

In Vinson v. State , this Court said that "the proponent of evidence ordinarily has the burden" to establish its admissibility. 2 The use of the word "ordinarily" indicates that there are exceptions to this general rule, and so, it is not always true that the proponent of the evidence has the burden at trial to prove its admissibility. Sometimes the burden regarding admissibility falls on the opponent of the evidence.

The problem with a statement about the burden being on a particular party to prove that evidence is admissible or inadmissible is that it oversimplifies the issue. Admissibility of a particular item of evidence depends on what conditions for admissibility are established by a rule of evidence, a statute, or a constitutional provision. Who has the burden at trial to prove a particular condition for admissibility depends on what type of issue is being litigated. In general, if the issue relates to a rule of admission , it is indeed the proponent's burden to prove the conditions for admissibility. 3 If the issue relates to a rule of exclusion , however, generally speaking, it is the opponent's burden to prove the conditions for exclusion. As we shall see, though, the analysis can become quite complicated, primarily because rules of exclusion often have exceptions, and those exceptions generally function as rules of admission, on which the proponent has the burden of proof. And the exceptions are often the real bone of contention between the parties.

Before I get to the nuts and bolts of how I believe this works, I mention two caveats. First, the proponent of evidence does not have a burden to do anything until the opponent 4 articulates a reason to believe that the evidence is inadmissible. 5 After that, the proponent's burden is limited to providing a response to that reason. 6 Second, there are actually two types of burdens of proof: the burden of production *159 and the burden of persuasion. 7 The burden of production is the burden to produce evidence sufficient to support a finding that the condition in question is true. 8 The burden of persuasion is the burden-sometimes in the face of controverting evidence-to convince the finder of fact that the condition in question is true. 9 The burdens of production and persuasion are sometimes, but not always, on the same party. 10 Because trial courts are given great deference in deciding whether a party has met the burden of persuasion, 11 the burden appellate courts are generally concerned with in determining the admissibility of evidence is the burden of production.

As I have indicated earlier, for rules of admission, the burden is generally on the proponent to show that the evidence is admissible. 12 For example, the proponent has at least an initial burden to demonstrate that the proffered evidence is relevant 13 and authentic. 14 When expert testimony is at issue, the proponent has the *160 burden to establish reliability. 15

For rules of exclusion, however, the burden is generally on the opponent of the evidence to show that the evidence is inadmissible. 16 For hearsay, for example, which is a rule of exclusion, we have held that the opponent of the evidence bears the burden to show that evidence is hearsay, 17 but once hearsay is shown, the proponent bears the burden of establishing an exemption or exception to the hearsay rule. 18 The cases are uniform that, if the issue is whether certain evidence meets the basic definition of hearsay , 19 the opponent of the evidence has the burden. 20 As mentioned above, it is frequently the case with rules of exclusion that the real dispute is over whether a certain exception applies. This is true with hearsay. Although the initial burden is on the opponent to show that the evidence is hearsay, the debate is often about whether an exemption or exception applies that would make evidence admissible-an issue on which the proponent has the burden.

*161 For constitutional rules that operate to exclude evidence, the burdens of proof are allocated similarly, with the opponent being required to show factors favoring exclusion and the proponent only then being required to show factors favoring admission. For Fourth Amendment issues, the defendant who seeks to suppress evidence "has the burden of producing evidence that rebuts the presumption of proper police conduct." 21 One method of doing this would be to produce evidence of a search or seizure and the absence of a warrant. 22 The defendant also has the burden of showing that he has standing to contest the search or seizure, such as a reasonable expectation of privacy in the place searched. 23 If the defendant rebuts the presumption of proper police conduct and also shows standing, then and only then does the State have the burden to show the reasonableness of the search or seizure. 24 Likewise, for Fifth Amendment Miranda 25 claims, the defendant has the burden to show that his statement was the product of custodial interrogation. 26 Only after that is done does the State have the burden to show that the proper warnings were given in compliance with Miranda . 27

With this background, I consider Article 38.23. The statute is framed as a rule of exclusion: "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." 28 When the Article 38.23 allegation is that evidence was obtained in violation of a constitutional provision, we would look to the jurisprudence associated with that provision to determine the allocation of burdens, though it can generally be said that the defendant will have the burden to show that the constitutional provision was implicated in some way. And if he makes the requisite showing, the State would then have the burden to show compliance with constitutional requirements.

When the Article 38.23 allegation is that evidence was obtained in violation of a statute, we would look to the particular statute to determine who has what burdens of proof. With any statute, the defendant must at least produce some evidence of a statutory violation. 29 When the statute at issue is one that proscribes a criminal *162 offense, such as the statute before us, 30 the allocation of burdens is usually easy to determine. The defendant has essentially the same burdens that the State would have in a prosecution under the statute, except that the standard of proof would be a preponderance of the evidence instead of beyond a reasonable doubt. That is, anything that is an element of the offense is something the defendant has the burden to prove. 31 Anything that is an affirmative defense is something the State has the burden to prove. 32 Anything that is a true defense is something on which the State has the burden of production and the defendant has the burden of persuasion. 33

So, the defendant who claims that evidence is inadmissible under Article 38.23 because it was obtained in violation of Penal Code § 16.02 (unlawful interception of communications) is in the same position as a prosecutor charging a crime under § 16.02, except that the defendant only has to prove the crime by a preponderance of the evidence. The elements that the State would have to prove in a § 16.02 prosecution are elements the defendant has to prove to establish a statutory violation for the purpose of excluding evidence under Article 38.23. The affirmative defense of consent-by-a-party-to-the-conversation is then something the State has to prove.

I am aware of only one citation that supports the notion that the burden on admissibility issues depends solely upon the stage of the proceedings at which an issue is litigated: the concurring opinion in Robinson . 34 But it is just a concurring opinion, not adopted by this Court, and there is caselaw that seems to be to the contrary.

In Russell v. State , we said, "Texas statutory law is silent as to how the burden of proof is distributed in a motion to suppress. This Court, therefore, seemingly has adopted, at least in some respects, the rules followed by federal courts in distributing the burdens of proof." 35 In support of the holding that the movant in a motion to suppress had the burden to defeat the presumption of proper police conduct, we cited Mattei v. State , which in turn relied upon federal cases. 36 In Mattei , the defendant had filed a motion to suppress, but the suppression issue was litigated at trial. 37 We quoted extensively from the Fifth Circuit decision of *163 Rogers v. United States , 38 which placed the burden on a defendant who seeks the protection of an exclusionary rule of evidence: "When a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is his task to prove his case." 39 The discussion continued by focusing on the nature of the admissibility issue as the reason for how the burden of proof was allocated, and not on whether the motion was litigated before trial or during trial. 40

More recently, this Court held in Herrera that, " [a]t trial , the defendant bears the initial burden of proving that a statement was the product of 'custodial interrogation' " for Miranda purposes. 41 A motion to suppress was filed in Herrera , but the Miranda issue was litigated at trial. 42

Our cases show a more complex treatment of exclusionary rules of evidence than the pretrial/trial distinction advocated by Appellant. The framework I have set forth is consistent with these cases, while Appellant's proposed "stage of proceedings" rule is not.

With these comments, I join the Court's opinion.