IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PDB1013B06
GUSTAVO RODRIGUEZ, Appellant
v.
THE STATE OF TEXAS
ON STATE=S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
Meyers, J., filed a dissenting opinion, in which Womack, J., joined.
DISSENTING OPINION
Did officers have a substantial basis for concluding that a search of Appellant=s house would uncover evidence of a crime? Probably. Especially since Appellant=s uncle, Cantu, told the officer who arrested him that Appellant=s house contained at least ten kilos of cocaine. But the officer who went to get the warrant left this piece of information out of the affidavit. The omission didn=t affect the State at that point since the magistrate issued the warrant based on the limited information that was in the affidavit. Was that error? Maybe. While it=s true that affidavits for search warrants are Adrafted by nonlawyers in the midst and haste of a criminal investigation,@ as the majority quotes from United States v. Ventresca, 380 U.S. 102, 108 (1965), this does not excuse the affiant from the requirement that the facts must show that there is probable cause to search. This is the point that the court of appeals makes.
There are other facts that the affiant should have included in the affidavit. If he had included those facts, there would not be an issue, and we would not all be wasting our time dealing with a fact-specific case that adds nothing to our jurisprudence. The court of appeals wanted to send a message to the officers: get it right, don=t omit crucial facts from the affidavit. That message should have been sent by the magistrate. But, obviously, the magistrate did not know that information was omitted and did not think there was a mistake. Despite the limited information provided in the affidavit, the magistrate found probable cause and issued the warrant.
The court of appeals may have failed to defer to the magistrate=s finding of probable cause and may have considered that crucial facts were omitted from the affidavit. And, the court of appeals came to a different conclusion than the majority came to. However, there is no indication that the court of appeals applied an improper standard in judging the adequacy of the warrant affidavit. Because this is a fact-specific unpublished opinion, I disagree with the decision to remand this case. Instead, we should hold that it was improvidently granted.
Under Texas Rule of Appellate Procedure 66.3, the reasons for granting review in a case include:
(a) whether a court of appeals= decision conflicts with another court of appeals' decision on the same issue;(b) whether a court of appeals has decided an important question of state or federal law that has not been, but should be, settled by the Court of Criminal Appeals;(c) whether a court of appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States;(d) whether a court of appeals has declared a statute, rule, regulation, or ordinance unconstitutional, or appears to have misconstrued a statute, rule, regulation, or ordinance;(e) whether the justices of a court of appeals have disagreed on a material question of law necessary to the court's decision; and(f) whether a court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals= power of supervision.
I don=t think this case falls into any of those categories. This is a close case that reasonable people could disagree on. The court of appeals disagreed with the magistrate and the trial court, and the majority disagrees with the court of appeals. But it is not the job of this Court to throw in our two-cents worth about whether the facts that were included in the warrant affidavit were sufficient to show probable cause. I respectfully dissent.
Meyers, J.
Filed: May 9, 2007
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