holding that a warrant which directs it to be returned within three days, exclusive of the day of its execution, may be executed at any time on the fourth day after the date of issuance and, therefore, concluding that warrant issued on November 5th and executed on November 9th was valid
How later courts described this case
- holding that a warrant which directs it to be returned within three days, exclusive of the day of its execution, may be executed at any time on the fourth day after the date of issuance and, therefore, concluding that warrant issued on November 5th and executed on November 9th was valid
- holding that a warrant which directs it be returned within three days, exclusive of the day of its execution, may be executed at any time on the fourth day after the date of issuance
- holding that warrant may be executed at any time on the fourth day after the date of issuance and, therefore, warrant issued on November 5th and executed on November 9th was valid
- holding that warrant to search “10222 Forum West” was sufficient to permit search of “10210 Forum West” when warrant described in detail the physical appearance of latter address
Written by the judges who cited it.
The opinion
BAIRD, Judge,
concurring.
In this case, the warrant provided for execution within three days “exclusive of the day of its execution.” The warrant did not make any reference to the day of “issuance.” The narrow question presented by this case may be stated as follows: Did the magistrate, by not mentioning the date of issuance, intend to restrict the period within which the warrant could be executed? The First Court of Appeals in Blackmon v. State, 786 S.W.2d 467, 469 (Tex.App.—Houston [1st Dist.]), answered that question in the affirmative. However, the Fourteenth Court of Appeals in Williams v. State, 928 S.W.2d 752, 755-56 (Tex.App.—Houston [14th Dist.]) answered the question in the negative. We granted review to resolve this conflict between the courts of appeals. Tex.R.App. P. 66.3(a). Our discretionary review jurisdiction is limited to reviewing the decision of the Court of Appeals. However, the majority does not, in any manner, review the decision of the Court of Appeals in this case. Therefore, I cannot join the opinion of the Court. 1 I find the reasoning of the Court of Appeals persuasive and, therefore, would adopt the following holding as our own.
In interpreting affidavits and search warrants, magistrates and courts must do so in a common sense and realistic fashion and avoid hypertechnieal analysis. Faulkner v. State, 537 S.W.2d 742, 744 (Tex.Cr.App.1976); State v. Saldivar, 798 S.W.2d 872, 874 (Tex.App.—Austin 1990, pet. ref d). In this case, the magistrate did not mention whether the date of issuance was included or excluded. Therefore, a common sense analysis indicates that the statutory definition controls. The inclusion of the term “exclusive of the date of execution” was unnecessary because by statute the day of execution was already excluded. Therefore, inclusion of this term in the warrant cannot be construed as an intent on the part of the magistrate to shorten the three-day period.
Williams, 928 S.W.2d at 755 .
With these comments, I join only the judgment of the Court.
. For the following reasons, I also disagree with the majority’s characterization of the language in Blackmon as "dicta.” Ante at 507; First, the Williams Court treated the language as more than dicta. Second, had the language been mere dicta, the Blackmon Court would not have felt the necessity of stating alternative ways to uphold the arrest. Id.., 786 S.W.2d at 470 . And third, had the language been nothing more than dicta, we would not have granted review as there would be no conflict between the Courts of Appeals.