Robert Richard Thornton - Voice For The Defense Online

More documents

Recommendations

Info

2d 143 (Tex. Cr. App. 1969). The credibilityrequirement is met since the personis named and swears to the contents of theaffidavit. See Christopher v. State, 489S.W.2d 575 (Tex. Cr. App. 1973). Seealso Spinelli, supra. Thus, the affidavitneed only meet the specificity requirementby reflecting sufficient facts to enable themagistrate to conclude that the person orthe item sought may be found at the locationdescribed. Of course, any additionalinformation should be included to ensurethat the affidavit establishes probablecause. At the very least, the affidavitshould reflect:I. The identity of the officer or personsupplying the information;2. The means by which the informationwas obtained, such as by observationor perception;3. The specific information gathered;and4. When and under what conditionsthe information was obtained.Probable cause requiredfor an affidavit based entirely uponhearsay informationAn affidavit may be based upon informationprovided by an informant, wherethe affiant has no personal knowledge ofthe matters related to him or her by the informant.The informants fall into threecategories: proven infom~ants, named citizens,or unnamed persons who may becitizens or first time informants.When the affidavit is based entirely uponhearsay allegations, the basis of the informant'scredibility must he shown, in additionto the specific facts observed or knownby the informant. The former requirementwill be discussed first, with regard to eachof the three possible types of informants.If the information provided in an affidavithas been disclosed by a proven informantwhose identity is now disclosed,the credibility requirement may be fulfilledby alleging that the informant bas giventrue, correct and reliable information in thepast. Wortley, supla. The affidavit neednot allege how many times in the past theinformant has provided the affiant with informationwhich proved to be correct.Casas v. State, 462 S.W.2d 58 1 (Tex. Cr.App. 1971). See a~Bo Curtis v. State, 519S.W.2d 883 (Tex. Cr. App. 1975), andHegdal v. State, 488 S.W.2d 782 (Tex.Cr. App. 1972).If the informant is a named citizen, thenthe credibility showing is not as strict.'Where a named informant is a privatecitizen whose only contact with the policeis a result of having witnessed a criminalact committed by another, the credibilityand reliability of the information is inherent."Esco, supra at 361 citing Wood v.State, 573 S.W.2d 207 (Tex. Cr. App.1978) and Frazier v. State, 480 S.W.2d375 (Tex. Cr. App. 1972). Thus, no furtherallegations, other than the citizen'sname, need be recited in the affidavit inorder to establish the informant's credibility.If the informant is a named police officer,then further allegations of credibilityneed not be made. Cassnnova v. State, 707S.W.2d 708 (Tex. Cr. App.-Houston[14th] 1986, no pet.), at 710, citing UnitedStates v. Ventresca, supra. See also Gish,supra.If the information has been disclosed bya first-time informant or an unnamed citizen,such as an anonymous informer, theaffidavit should contain recitations concerningthe informant's credibility, such asaverments that the informant lacks a criminalrecord, has a good reputation in thecommunity for veracity, and is gainfullyemployed. See Wood, supra; Wetherby v.State, 482 S.W.2d 852 (Tex. Cr. App.1972), Adair v. State, 482 S.W.2d 247(Tex. Cr. App. 1972), and Yawtis 11. State,476 S.W. 2d 24 (Tex. Cr. App. 1972). Amere assertion that the informant wascredible will not be sufficient to meet thefirst requirement. Abercro~ribie v. State,528 S.W.2d 578 (Tex. Cr. App. 1974).One factor which may he used to establishan informer's credibility, regardless ofthe type of informer, is a statement againstthe informer's penal interest. For example,if the informer provides information thathe was involved in criminal activity, thenhe has made a statement against his penalinterest, which may be considered as a factorestablishing his credihility. UnitedStates v. Harris, 403 US. 573, 91 S.Ct.2075,29 L.Ed.2d 723 (1971), Hennessey,supra, and Abercrombie, supra.With regard to the specificity requirement,that the affidavit contain sufficientfacts to support the finding of probablecause, regardless of the type of informant,the affidavit must set forth sufficient factsand circumstances to support his belief thatthe item sought to be seized is where heclaims it is. See Carmichael v. State, 607S.W.2d 536 (Tex. Cr. App. 1980). Thisinformation may be provided in one of twoways: showing that the informant haspersonalknowledge of the matters asserted,or showing that the informant's tip is hearsayworthy of belief.If the informant has personal knowledgeof the matters related to the affiant, thereneed be no additional showing in order toestablish sufficient facts to meet the secondrequirement. Sn~ith v. State, 496 S.W.2d90 (Tex. Cr. App. 1973). There must be,however, sufficient facts set forth to showhow the informant acquired his personalknowledge, and when the information wasobtained. Personal knowledge may he inferredfrom the facts provided. Abercronzbie,supra. See also Winkles, supra, op. onrehearing, adopting dissent filed on originalsubmission.Information obtained from an informermay also be hearsay. In other words, theaffiant may swear that the informant hasdisclosed some communication made byanother person to the informant. "Hearsayupon-hearsaymay be utilized to showprobable cause as long as the underlyingcircumstances indicate that there is a substantialbasis for crediting the hearsay ateach level." Hennessy, supra, at 91, citingEvans v. State, 530 S.W.2d932 (Tex.Cr. App. 1975); United States v. McCoy,478 F.2d 176 (10th Cir. 1973), cert. denied,414 US. 828,94 S.Ct. 53,38 L.Ed.2d 62 (1974); and Jones v. United States,362 US. 257, 80 S.Ct. 725, 4 L.Ed.2d697 (1960). Thus, as long as the affidavitsets forth sufficient facts to believe that theinformation told to the informant was reliable,then that information may he considered.In sum, if hearsay-upon-hearsay is usedto establish probable cause, then the affidavitshould set forth the statements relatedby the declarant to the informant, facts indicatingthe relationship between the declarantand the informant, and recitationsas to why the statements should be helieved.These requirements must be met inaddition to those regarding the credibilityof the informant, and those regarding thesufficiencv of the facts to suooort . the conclusionthat probable cause exists to findthe desired item in the specified place.contimed on pnxe 3130 VOICE for the Defense / February 1987
EDITOR: Calherine Creme RurnettASSOCIATE EDITORS:Bill Gkp)\Vdlcr C. PrrntirrR.K. WearerC O U R T OF C R I M I N A L A P P E A L S[NOTE: Only 10 opinions were handed down duringthe five weeks from December 23 to January 21.1Joe E. MILLS, No. 1094-83 -- Felony Theft Conviction Affirmed-- On 0's PDR: Opinion by Judge Clinton; Judges Teague andMiller Dissent; 12/23/86STATUTORY CONSTRUCTION -- SPECIFIC-GENERAL: SECURING DOCUMENT BYDECEPTION NOT A SPECIFIC STATUTE CONTROLLING THEFT BY DECEPTION:D was convicted of 2nd degree felony theft CSec. 31.03(d)(5)(8)1:t/c assessed punishment at 16 years.TCA rejects argument that Sec. 32.46 "Securing Execution of aDocument by Deception" is the more specific statute and shouldcontrol over the general theft statute. Intersection betweenstatutes occurs with use of "deception". In theft case it fs oneof the circumstances surrounding D's conduct which operates torender otherwise apparent consent "ineffective". Under 32.46 theforbidden conduct deception. Sec. 32.46 was intended toproscribe conduct that is deceptive, not acquisitive. Incontrast, focus of theft statute is on acquisitive conduct, anddeception is one of several methods whereby the acquisition maybe had. TCA also notes that in some respects securing executionof a document by deception is broader proscription that theft:(1) "deception" is not specifically defined under Chapter 32,whereas it has special definition under Chapteer 31 [Theft]; (2)February 1987 1 VOICEfor the Defense SDR-1
Page 1 and 2: -the Texas (Robert Richard Thornton
Page 3 and 4: PRESIDENT'S REPORTIKnox JonesIt's w
Page 5 and 6: The Effective and Judicious Use ofO
Page 7 and 8: with an mthoritatim? qmseto a quest
Page 9: Federal Sentencing in the 1980s and
Page 12 and 13: dividual or $10,000,000 if the defe
Page 14 and 15: procedure. When prehearing assessme
Page 16 and 17: when non-security considerations ou
Page 18 and 19: Aliens As Criminal Defendants: Stra
Page 20 and 21: grounds, (see Matter of S, 7 I&NDec
Page 22 and 23: tion, then in certain circumstances
Page 24 and 25: Search Warrants ana ~rrest Warrants
Page 26 and 27: 2d 143 (Tex. Cr. App. 1969). The cr
Page 28 and 29: specific intent to defraud or harm
Page 32 and 33: specific intent to defraud or harm
Page 34 and 35: Ex parte James Harvey HAWKINS, No.
Page 36 and 37: parole eligibility was element of p
Page 38 and 39: CAPITAL MURDER SPECIAL ISSUES -- AC
Page 40 and 41: Joe Louis ARRIETA, No. 02-85-202-CR
Page 42 and 43: Appeals. In the meantime, however,
Page 44 and 45: sentation or statement made in reck
Page 46 and 47: Appeals. In the meantime, however,
Page 48 and 49: sentation or statement made in reck
Page 50 and 51: the subject of suit is within the c
Page 52 and 53: From the Inside OutSo the Judge Wil
Page 54 and 55: m.The P.S.I. is an imporfanant docu
Page 57 and 58: EthicsPropriety of Supplementing th
Page 59 and 60: New Motions7he following Motion for
Page 61 and 62: Respectfully submitted,JOSEPH (SIB)
Page 63 and 64: where a juror is susceptible to a c
Page 65 and 66: Letter to the Editor:It is wonderfu
Page 67 and 68: serving his time. It also allows re
Page 69 and 70: S.W.2d 249 (Tex.App. -CorpusChristi
Page 71 and 72: In and Around Texasby John BostonBy

Robert Richard Thornton - Voice For The Defense Online

Create successful ePaper yourself

Delete template?

Save as template?