Reese v. State

CLINTON, Judge,

dissenting.

The majority opinion states that the Court has held a jurat is not “a part of the affidavit” and, therefore, the fact that a defective jurat was actually sworn to may be shown “by other evidence; ” 1 it then *135 cites and discusses decisions to the effect that in a given respect an ailing warrant may be cured by reference to the same matter in a proper affidavit; finally, comes its conclusion, viz:

“By the express terms of this document [i.e., affidavit and warrant] it is clear that the affidavit was properly sworn to before a magistrate with power to administer oaths.”

However, the majority does not explain just how decisions finding that incorporating a proper affidavit into a warrant may correct a deficiency of omission in the warrant will support the converse proposition that a deficiency of omission in an jurat to an affidavit may be supplied by the warrant.

Article 18.01, § (b), V.A.C.C.P., provides in pertinent part:

“A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested.”

According to former article 23, § 18, V.A. C.S., “ ‘Affidavit’ means a statement in writing of a fact or facts signed by the party making it, and sworn to before some officer authorized to administer oaths, and officially certified to by such officer under his seal of office.” Accord: Article 26, § 1. “It is the established rule in Texas that an affidavit ... for search warrant must be made before an officer authorized to administer the same before search warrant may issue. [citations omitted].” O’Quinn v. State, 462 S.W.2d 583, 586-587 (Tex.Cr.App.1970).

It is true that the Court is wont to cant, “A jurat is not part of the affidavit.” Whatever the intendment of that expression, that the Court still looked to sufficiency of a jurat to determine that the affiant had been sworn before an authorized officer is shown by one of the cases cited by the majority, containing that very expres sion — Alexander v. State, supra. Thus in that cause it found that the jurat “on its face fails to show that a person clothed with lawful authority swore the affiants to the affidavit.” “The affidavit not appearing regular on its face,” and finding no other evidence that it was sworn to before a person authorized to administer an oath, the Court held that “the admission of the testimony showing the search under the search warrant based upon said affidavit and the results thereof was error.” Id., 320 S.W.2d at 678-679.

Thus while a jurat may not be part of an affidavit, a purported “affidavit” is worthless unless a jurat or other evidence shows an oath was administered to the affiant by an authorized officer. Here there is no executed jurat. Apparently the court of appeals agreed, for it deemed recitations in the warrant “sufficient proof” to make the statement an affidavit.

*136 Yet, as I understand it, the majority opinion proceeds on still another theory: if the unexecuted jurat is disregarded, the only material left on that side of the paper is a statement signed by a police officer — the majority calls that statement an “affidavit” —and because the “affidavit” is incorporated by reference behind stock language in a printed form reciting that the officer “did heretofore this day subscribe and swear to said Affidavit before me,” “it is clear that the affidavit was properly sworn to before a magistrate with power to administer oaths.” 2

Just as the Court has condemned the practice of using “one model affidavit to fit all situations,” Brown v. State, 437 S.W.2d 828, 829 (Tex.Cr.App.1968), so also its condemnation has been equally applied to using “a form warrant,” Faulkner v. State, 537 S.W.2d 742, 744 (Tex.Cr.App.1976). One reason for its condemnation is obvious: since such forms will not readily and unambiguously “fit all situations,” using them risks a finding in a given situation that defects of commission or omission render an affidavit or warrant invalid.

What the majority chooses to call a “document” illustrates the risk. Though it echoes an admonishment the Court routinely gives to magistrates and courts that they must interpret affidavits and warrants “in a common sense and realistic fashion and avoid hypertechnical analysis,” Faulkner, supra, at 744 , the majority will not heed the call. To do so would doom the “document.”

Common sense and realism tell us that a magistrate did not execute the jurat, that a statement sans jurat is not an affidavit, that in incorporating the “affidavit” with unsigned jurat by reference the warrant demonstrates again that the statement is not an affidavit and that on its face the “affidavit” contradicts “boiler plate” recitations in the form warrant that the officer “did heretofore this day subscribe and swear to said Affidavit before me.” Only a strained, hypertechnical analysis enables the majority to defuse the risk — and to save the “document.”

Accordingly, I cannot agree to set in motion the mischief inherent in what the majority causes this Court to sanction. Nor do I agree with its treatment of the other ground for review. Indeed, if Ward v. State, 642 S.W.2d 782 (Tex.Cr.App.1982) were deemed to control disposition of that ground, we would not have granted review. I merely observe that the majority seems to be confusing elements of kidnapping with those of false imprisonment.

I respectfully dissent.

ONION, P.J., and TEAGUE and MILLER, JJ., join.

. Enigmatic at best, the first “holding” was initially stated less confidently by the Court in Alexander v. State, 123 Tex.Cr.R. 65 , 57 S.W.2d 157 (1933), viz:

“In the case of Order of Aztecs v. Noble, 174 S.W. 623 ... our Court of Civil Appeals ... held that failure to date an affidavit was not fatal. The same thing was held by the Court of Appeals of Kentucky in the well-considered case of Blackburn v. Com., 202 Ky. 751 , 261 S.W. 277 , in which appears the apparently sound statement that the jurat is not part of *135 the affidavit ... unless made so by statute. Nowhere in our statute is it required that the date be inserted in the jurat, or that it contain the number of the precinct or name the state of the jurisdiction, [citations omitted].” Id., 57 S.W.2d at 158 .

One statute alluded to by Judge Lattimore was former article 310, C.C.P. 1925, see Historical Note to Article 18.07, V.A.C.C.P., referring to a “written sworn complaint;” the other, former article 415 [now Article 21.12, V.A.C.C.P.], being an affidavit to support an information charging an offense, sworn to before an officer authorized by law to administer oaths. As to the latter, the “holding" is contrary to the more recent decision of the Court in Shackelford v. State, 516 S.W.2d 180 (Tex.Cr.App.1974): “To be sufficient the jurat must be dated. An undated jurat vitiates the complaint. Article 2.04, Vernon’s Ann.C.C.P.” In the event, whatever stems of rationale Judge Lattimore gleaned from the blue grass of reasoning in Kentucky to find that a jurat does not require a date are slender reeds for supporting a determination that a jurat need not be signed by the magistrate — that being our problem here.

The second "holding" is often attributed to Stanzel v. State, 112 Tex.Cr.R. 628 , 18 S.W.2d 158 (1929). E.g., Alexander v. State, supra, 57 S.W.2d at 158 , and King v. State, 167 Tex.Cr.R. 440 , 320 S.W.2d 677, 678 (1959). One S.F. Hunt had signed two affidavits for search warrant, but the jurat to one recited that it was sworn to by “Carl Utterback;" the jurat was signed by Carl Utterback, justice of the peace. Hunt testified that he signed hoth affidavits and that Ut-terback swore him to each. The Court said, "The face of the jurat indicates clerical error which is made certain by Hunt’s evidence,” id., 57 S.W.2d at 160 , citing authorities. There is no such evidence in this cause.

. The majority points out that the warrant ends with a signature line for "magistrate, Dallas County, Texas,” and that it was signed by "the issuing magistrate.” Dallas County now has many "magistrates," including ones appointed pursuant to former Article 1918c, V.A.C.S., now, e.g., §§ 54.306 & 54.308, in Subchapter D, Chapter 54 of Government Code. While the latter have some power to administer oaths to witnesses at hearings, neither section specifically authorizes a proceeding nor grants power to issue a search warrant.