Robert Richard Thornton - Voice For The Defense Online

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sentation or statement made in reckless dis- every stage of the proceedings, except atregard for the truth. If such a sitnation the in camera showing, where no counselarises, reference should be made to Rule or parties shall be present.508 of the Texas Rules of Criminal Evidence,which provides that the State has Special affidavit requirements for itemsa privilege to refuse to disclose the identityof a person who has furnished informasoughtunder Art. 18.02(10)tion relating to commission of an offense.Rule 508@) states that the privilege mayArticle 18.02(10), supra, permits a searchwarrant to be issued for items constitutingnot apply where the information from an evidence of an offense or constituting eviinformer is relied upon to establish the le- dence tending to show that aparticular pergalityof the means by which evidence was son committed an offense. Article 18.01obtained and the judge is not satisfied that (c), V.A.C.C.P., states that a warrant maythe informer was reliable or credible. This not be issued under Art. 18.02(10), supra,exception will apply chiefly incases where unless the sworn affidavit sets forth suffithesearch was conducted without a warrantor incident to a warrantless arrest,cient facts to establish probable cause that:since the four-corners rule would prevent 1. a specific offense has been comthetrial or appellate court from going he- mitted;hind the affidavit to judge its adequacy. 2. the specifically described prop-The rule may be read, however, topre- erty or items that are to be searchedvent the privilege from applying when the for or seized constitute evidence ofdefendant alleges that the affidav~t contains that offense or evidence that a parintentionalmisrepresentations or state- ticular person committed that ofmentsmade with reckless disregard for the fense; andtruth. Since the four-corners rule does not 3. the property or items constitutingapply in such cases, see Franks, supra, and evidence to he searched for or seizedJlcarez, supra, the trial court, and there- are located at or on the particularfore the appellate court, will be permittedto consider evidence not apparent from theperson, place or thing to besearched.four-corners of theaffidavit in order to de- The third requirement is the same for anytermine whether the defendant's allegations search warrant, but this section providesare correct.for two additional requirements if the itemsIf the State is called upon to reveal the fall within subsection (10) of Art. 18.02:identity of a confidential informant, Rule there must be probable cause to believe that508 provides for the following procedure. an offense has been committedand that theFirst, the State must claim the privilege, item sought is evidence of that offense.since it may he waived by voluntary dis- Since subsection (10) is predicated on theclosure of the informer's identity. If the existenceof an offense, theaffidavit mustjudge finds that the identity of the informer be insome way tied to commission of thatw~ll assist in his determination regarding offense. Also, since subsection (10) authedefendant's allegations of intentional thorizes seizure of items that are not inmisrepresentation,then the judge shall give herently illegal, see discussion snpra, andthe State an opportunity to show in camera simply constitute evidence of a crime,facts relevant to whether the informant greater specificity in the descriptions ofcan, in fact, supply relevant information. those items is required. Failure to meet anyRule 508(c)(2). The showing will ordinar- of the three requirements in the affidavitily be by affidavit unless the judge finds will render it invalid and the evidence obthataffidavits are not sufficient to resolve tained thereunder inadmissible. Malder,the matter. If the judge finds that the in- supra.former may he able to give relevant testimony,and if the State refuses to disclose Execution of athe informer's identity, then the judge maySearch Warrantdismiss the charges against the defendant.Evidence io the judge on this Who may issue a ivarranfmatter shall be sealed and preserved forappellate review. The contents shall not Article 18.01(a), supra, requiresfhat theotherwise bemade public. All counsel and warrant be issued by a magistrate. Articleparties shall be permitted to be present at 2.09, V.A.C.C.P., sets forth who are tobe considered magistrates. See thefollowingportion of this Article concerning arrestwarrants. The magistrate issuing thewarrant must be properly serving as a magistrate,or the warrant issued will be invalid.See French v. Stafe, 572 S.W.2d934 (Tex. Cr. App. 1977) (where searchwarrant was issued by one who had nottaken the oath of office, the warrant wasvoid and the evidence seized thereunderwas inadmissible).If the defendant wants to challenge theauthority of the magistrate to issue a warrant,the defendant must bring a direct actionthrough a quo warranto proceeding.Archer, supra. at 544, citing Saenz v.Lnckey, 522 S.W.2d 237 (Tex. Cr. App.-Corpus Christi 1975, writ refd n.r.e.); andKeen v. State, 626 S.W.2d 309 (Tex. Cr.App. 1981).When the warraat must be executedArticle 18.06, V.A.C.C.P., states thata serach warrant must be executed withoutdelay, within three days from the time ofits issuance, unless the magistrate directsthat it he executed in a shorter time. Article18.07, V.A.C.C.P., states that the timeallowed for execution shall be three days,exclusive of the day of its issuance and theday of its execution. Thus, the executingofficer has five days to exeeute the warrant.For example, if the warrant is issuedon June 1, it could be executed on June 1,June 2, June 3, June 4, or June 5. If thewarrant is not executed within the propertimelimits, it is invalid. S~wnson v. State,18 S.W.2d 1082 (Tex. Cr. App. 1929) andHolman v. Sf@, 14 S.W.2d 949 vex. Cr.App. 1929).Who may execute the warrantArticle 18.06, V.A.C.C.P., requiresthat a peace officer execute the warrant.Article 2.12, V.A.C.C.P., states who arepeace officers. The officers must, however,be operating within their properjurisdiction. For instance, a state officermay serve a search warrant anywhere inthe state, a county officer may serve asearch warrant anywhere in the county,Gilberf v. Stafe, 493 S.W.2d 783 (Tex. Cr.App. 1973), and an officer of an incorporatedcity may serve a search warrant onlywithin that incorporated area. Reynolds v.State, 506 S.W.2d 864 (Tex. Cr. App.1974).32 VOICE for the Defense /February 1987
Vernon Lee ROSE, No. 05-85-1136-CR, DALLAS COUNTY,AGGRAVATED ROBBERY, Affirmed on Rehearing en banc, 12/1/86JURY CHARGE: At trial the court charged the jury pursuant to TEX.CODE CRIM. PROC. ANN. art. 37.07 (4) (e) (the parole charge). Oninitial submission, a panel of the C/A held that the statuteviolated the Separation of Powers Doctrine of Article 11, sec. 1,of the Texas Constitution. On rehearing, the Court held that thecharge was constitutional and did not violate the doctrine.Further, the Court held that the charge was not inherentlyconfusing or contradictory.Comment: This case is long and confusing. Seven justices joinedthe lead opinion with one justice concurring in the result only.This opinion is convoluted, disjointed and far to long to attemptto excerpt here (77 pages in all!). The remaining five justicesfiled four dissenting opinions, each with a different justificationfor their votes. This case involved a challenge to thecharge which was not made at trial, i.e., there was no objectionto the charge. The various dissents will give counsel a fairlygood idea of how to object to the charge and preserve the issuespending the Court of Criminal Appeals final determination as tothe issues which will be raised concerning this statute.David Edward HIGBIE, No. 05-86-188-CR, DALLAS COUNTY,DRIVING WHILE INTOXICATED, Reversed and Remanded, 12/10/86SEARCH 5 SEIZURE: The police established a road block at 1:45a.m. on a road leading from several bars. The officers testifiedthat the purpose of the road block was to check driver'slicenses. They specifically denied that the road block had anyother purpose. Tha C/A noted that the road block was manned byofficers from the "Driving While Intoxicated Squad", and that itwas established to stop cars coming from the area of bars whichwere at that time beginning to close down, and ended shortlyafter the bars were closed. The C/A held that despite theofficers assertions to the contrary, when the intent of the stopwas measured against all of the facts and circumstancessurrounding the stop, "it becomes apparent that the roadblock wasthere for the specific purpose of catching drunk drivers". TheC/A then analyzed the stop under the guidelines set down inWebb v. State, 695 S.W.2d 676 (Tex. App. - Dallas, 1985, no PDR),and found the stop constitutionaly infirm.Comment: What is interesting about this opinion is that the C/Alooked to the actual facts and circumstances surrounding the roadblock and found that they rebutted the officers express testimonythat the road block had no purpose except to check for driver'slicenses. This appellate fact-finding is laudable, but unlikelyto survive subsequent appellate review by the Court of CriminalFebruary 1987 / VOICE for the Defense SDR-11
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 30 and 31: 2d 143 (Tex. Cr. App. 1969). The cr
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 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

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