Vance v. State

¶1OPINION

¶2This is an appeal from a conviction for the offense of possession of methamphetamine. The jury found the appellant guilty and assessed his punishment at 25 years’ confinement and a fine of $10,000.00.

¶3San Antonio narcotics detective Jack Wright received information from an informant that the appellant Fred Milton Vance was in possession of methamphetamine at a location in the adjoining county, Guadalupe County. He prepared a complaint for a search warrant which he presented to Guadalupe County Judge James E. Sagebiel. Detective Wright swore to the complaint before Judge Sagebiel but neglected to sign it. Judge Sagebiel issued the search warrant which resulted in the seizure of the controlled substance forming the basis of the evidence on which the appellant was convicted.1

¶4The appellant and the State agree that with respect to a case where a search warrant is issued where the affiant swore to but neglected to sign the affidavit, this is a case of first impression in Texas.

¶5The appellant attacks the search warrant in four points of error. Point of error one contends that the trial court erred in admitting evidence obtained under the search warrant because a sworn affidavit was not filed supporting the warrant. This is based on that portion of TEX.CODE GRIM. PROC.ANN. art. 18.01(b) that states, “A *500sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. The affidavit is public information if executed.”

¶6Under this point of error appellant makes several subordinate arguments. He first cautions the Court that in determining the legal adequacy of an affidavit in support of a search warrant the document is to be reviewed within its four comers. Doescher v. State, 578 S.W.2d 385, 387 (Tex.Crim.App.1978). The “four corners” doctrine gives us guidance more particularly in determining the sufficiency of the probable cause evidence set out in the affidavit to justify the issuance of the search warrant. The “four comers” doctrine does not apply to the jurat beneath the affidavit. When the jurat on its face is defective, the fact that it was properly sworn to may be shown by other evidence. King v. State, 167 Tex.Crim. 440, 320 S.W.2d 677, 678 (1959).2

¶7The appellant also argues very generally that there was a violation of the Fourth Amendment to the United States Constitution3 and art. I, § 9, Texas Constitution. The Fourth Amendment says that “... no warrant shall issue but upon probable cause, supported by oath or affirmation ...” and art. I, § 9 of the Texas Constitution says that no search warrant “shall issue without ... probable cause, supported by oath or affirmation.” There is no apparent state or federal constitutional error since the evidence of probable cause here was in fact supported by oath.

¶8Our determination of harmful error must rise or fall on a violation of art. 18.01(b) and its requirement for a “sworn affidavit.” Appellant’s position is that to be an affidavit the document must be sworn to and signed. He offers numerous authority for the proposition that swearing to the statement is essential to its validity as an affidavit. We, of course, agree, but this is irrelevant in view of the fact that it is undisputed that the affidavit was sworn to.

¶9The only authority offered on the absolute necessity of the signature is old TEX. REV.CIV.STAT.ANN. art. 23, § 18, which was repealed effective September, 1985, and cases interpreting that statute. Interpretations of a repealed civil statute are only marginally persuasive in interpreting a section of the Code of Criminal Procedure.

¶10Our sister States who have passed on this identical question have uniformly held in well-reasoned opinions that the actual signature is not essential. State v. Roubion, 378 So.2d 411, 413 (La.1979); Commonwealth v. Young, 6 Mass.App. 953, 383 N.E.2d 515, 517 (1978); State v. Higgins, 266 N.C. 589, 146 S.E.2d 681, 684 (1966); Huff v. Commonwealth, 213 Va. 710, 194 S.E.2d 690, 692 (1973).

¶11Nothing in the United States Constitution or the statutes or Constitution of the State of Texas requires an affiant to sign his name to a search warrant affidavit. It is the oath of the affiant that solemnizes his affidavit. If the affiant is sufficiently identified in the body of the affidavit or in the jurat, his signature is not necessary to the validity of the affidavit. Custom dictates that the far better practice, of course, is that it be signed by the affiant.4

¶12The first point of error is overruled.

¶13In the second point of error the appellant complains that the search warrant was issued without probable cause in that it *501lacked the necessary indicia of reliability of the informant. This is based on the fact that the language of the affidavit is the same as has been seen in many previous affidavits and therefore should be suspect by the court.

¶14The use of a form or model affidavit for all situations is a practice that has been condemned, but it would not necessarily result in the warrant being invalidated. Brown v. State, 437 S.W.2d 828, 829 (Tex.Crim.App.1968), cert, denied, 393 U.S. 1089, 89 S.Ct. 850, 21 L.Ed.2d 782 (1969). Here the facts alleged in the affidavit comport with the testimony of the officer as to what information he possessed with reference to the premises and how he acquired the information. The second point of error is overruled.

¶15In the third point of error the appellant contends that there was no showing that the informant was reliable and credible. It is appropriate to establish the credibility of an unnamed informant by stating in the affidavit that the informant has given information on previous occasions and such information has proven to be true and correct. Hegdal v. State, 488 S.W.2d 782, 785 (Tex.Crim.App.1972). The third point of error is overruled.

¶16The fourth point of error contends that the search warrant was invalid because it was directed to officers of an improper county.

¶17The warrant was prepared on a printed form designed for use in San Antonio, Be-xar County, Texas. Detective Wright, who prepared the warrant, endeavored to alter the form so that it could be used in Guadalupe County. He did this by typing x’s through printed references to Bexar County and the City of San Antonio and typing, as an interlineation, Guadalupe County. He neglected to alter that line near the top of the warrant that stated “TO THE SHERIFF OR ANY PEACE OFFICER OF BEXAR COUNTY:”, though he changed “Bexar County” to “Guadalupe County” in three places on the warrant. The printed portion of the body of the warrant contains the directive “You are hereby commanded to enter immediately and search the above described premises ...”

¶18The warrant was actually executed by two members of the Guadalupe County Sheriff’s Office and three San Antonio police officers. Proper return was made on the warrant stating the manner in which it had been executed, all in compliance with TEX.CODE CRIM.PROC.ANN. arts. 18.06, 18.08, 18.09 and 18.10. Considering the entire warrant and the accompanying affidavit incorporated by reference therein, we believe the failure to substitute the word Guadalupe County for Bexar County at the top of the warrant was not such a fatal defect that it contributed to either the conviction or the punishment of the appellant. Barnes v. State, 504 S.W.2d 450, 453 (Tex. Crim.App.1974), TEX.R.APP.P. 81(b)(2). The fourth point of error is overruled.

¶19The last point of error complains that the trial court impermissibly limited the appellant’s right of cross-examination of Detective Wright as to the identity of the informant. The courts have long recognized the importance to law enforcement of protecting the identity of informers and have only required disclosure under narrowly defined circumstances. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The appellant does not contend that he was able to bring himself within any of the exceptions set out in Roviaroand its progeny. The point of error is overruled.

¶20The judgment of conviction is affirmed.

¶21CADENA, C.J., dissents with opinion.