stating that a motion to suppress that raised both federal and state search and seizure provisions was sufficient to preserve state constitutional claim when oral argument covered only the federal constitutional claim
How later courts described this case
- stating that a motion to suppress that raised both federal and state search and seizure provisions was sufficient to preserve state constitutional claim when oral argument covered only the federal constitutional claim
- relying on federal precedent in holding that a "totality of the circumstances" test was applicable in determining probable cause for a warrantless search, and stating that "... today's opinion is made to stay in step with the federal constitutional model for probable cause determinations"
- holding that imprecise objection will be sufficient to preserve error if grounds for the objection are obvious to the court or opposing counsel
- holding that the clear thrust of the argument at trial is the basis for deciding if the argument has been sufficiently raised for appeal
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Heitman v. State, 1991 Tex. Crim. App. LEXIS 160 (1991)
754 S.W.2d 159, 161 (Tex.Crim.App.1988), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991);
The opinion
ONION, Presiding Judge,
concurring.
I concur in the opinion by Judge McCormick. It is with reluctance that I add another opinion to those already extant in this cause. I am compelled to do so in view of the serious misinterpretation by the dissenting opinions of my Special Commentary to Article 18.01, V.A.C.C.P., written more than 22 years ago. Thank God I am still around to prevent my commentary from being used to mean something that was never intended.
Article 304, V.A.C.C.P. (1925), provided:
“A ‘search warrant’ is a written order, issued by a magistrate, and directed to a peace officer, commanding him to search for personal property, and to seize the same and bring it before such magistrate, or it is a like written order, commanding a peace officer to search a suspected place where it is alleged stolen property is commonly concealed, or implements kept for the purpose of being used in the commission of any designated offense.”
An examination of the early drafts of the State Bar Committee on the Revision of the Code of Criminal Procedure (1925) on which Judges Erisman, Morrison and I served showed that in 1962 and 1963 it was proposed to bring Article 304 forward unchanged as Article 18.01 of any new Code of Criminal Procedure. In 1964 the decision in Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), was handed down.
Thereafter, it was recommended by the said State Bar Committee that an additional paragraph without section or subsection numbers be added to the proposed Article 18.01 as follows:
“No search warrant shall issue for any purpose in this State unless a sworn complaint therefor shall first be filed with the issuing magistrate setting forth sufficient facts to satisfy the magistrate that probable cause does in fact exist for its issuance.”
The recommendation or addition was made because of the holding in Aguilar , that sufficient facts must be presented to the magistrate to satisfy him that probable cause does in fact exist for the issuance of a search warrant. The two-prong test of Aguilar for determining probable cause was not, however, written into the change to proposed Article 18.01 by the said State Bar Committee.
The recommendations of the State Bar Committee as to revision of the 1925 Code of Criminal Procedure were made to the Legislature, including the one as to Article 18.01 in 1965. Thereafter, a new Code of Criminal Procedure was adopted by the Legislature. Acts 1965, 59th Leg., ch. 722, effective Jan. 1, 1966. Article 18.01, without change from the recommendations from the State Bar Committee was adopted by the Legislature as a part of the new code. While it could have, the Legislature did not write into statute the two-prong test of Aguilar .
In 28 Texas Bar Journal 727, 795 (1965), Onion, Commentary on the Revised Code of Criminal Procedure, this writer wrote:
“The United States Supreme Court in Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , voided a Texas search warrant based merely upon ‘reliable information,’ and held that there must be sufficient facts presented to satisfy the magistrate that probable cause does in fact exist for the issuance of a search warrant.
“The new code has been reworded to meet these requirements. Therefore the affiant (usually a police officer) an affidavit for search warrant can no longer merely state he has received reliable information from a credibly person (usually unnamed) that an offense has been committed, etc. The affidavit must show the magistrate (Justice of the Peace in most cases) additional facts to for a suf *166 ficient basis in fact for a determination by the magistrate that probable cause exists for the issuance of a search warrant.” (Authorities cited omitted.)
An attempt was made to show the influence of Aguilar upon the change made in the language of old Article 304 when it became 18.01, but there was no claim made that the two-prong test had been statutorily adopted.
The Special Commentary to Article 18.01, Y.A.C.C.P. (See Vol. I, p. 315, 316), was in the same language as the Bar Journal.
I have reread the Interpretative Commentary to Article 18.01 by the late Judge W.A. Morrison of this Court and that of the late Judge Fred Erisman of Longview, Chairman of the State Bar Committee. I cannot agree that they are contrary to my commentary.
I am fully aware of the results that Judges Clinton and Teague would like to reach in this cause, and I respect their views, but sadly they misinterpret my commentary upon which they seek to rely.