dissenting on State’s motion for leave to file Motion for Rehearing.
The panel opinion holds that a complaint, standing alone, is insufficient to prevent appellant’s release from custody and that the affidavit of the prosecuting witness should not have been admitted because it was hearsay.
The panel appears to recognize that the State needs only to show probable cause in order to defeat the discharge of a defendant charged with a criminal offense. This is so because Article 11.46, Y.A.C.C.P., provides:
“Where, upon an examination under habeas corpus, it appears to the court or judge that there is probable cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or admitted to bail.”
See also Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
The panel opinion fails to recognize that probable cause can be established by hearsay evidence both under the Federal Constitution, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and under Texas law, Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975).
The sworn complaint of Deputy Sheriff Stiles and the affidavit of the prosecutrix, although hearsay, are sufficient to show probable cause. Absent an allegation and an offer of proof of deliberate falsehood or reckless disregard for the truth as to statements made in the affidavits, see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the office of habeas corpus should not be turned into a discovery device or “fishing expedition” prior to trial. See Ex parte Garcia (Garcia v. State), 547 S.W.2d 271 at 275 (Tex.Cr.App.1977), concurring opinion by Onion, P. J. Moreover, the fact that an accused is presumed to be innocent, Article 11.43 V.A.C.C.P., is no reason for not requiring bail or further pretrial detention. See Bell v. Wolfish, - U.S. -, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
Leave to file the State’s motion for rehearing should be granted and the order of the trial court should be affirmed.
W. C. DAVIS, J., joins in this dissent.