concurring.
The question presented by this appeal is whether the introduction alone of an affidavit, information and capias issued at a habe-as corpus hearing is sufficient to detain an individual accused of a misdemeanor who challenges his detention by application for habeas corpus.1
The record reflects that the State offered only the complaint and information filed against the appellant and the capias subsequently issued. See Article 23.04, Vernon’s Ann.C.C.P. The appellant offered no evidence, but contended the evidence offered by the State was not sufficient to show probable cause for his continued detention.
Article 11.46, Vernon’s Ann.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 adxnit- . ted to bail.”
In a habeas corpus proceeding to test the legality of an arrest and detention, the State has the burden of showing the lawfulness thereof, and unless that is shown the applicant is entitled to his discharge. Ex parte Hagler, 161 Tex.Cr.R. 387, 278 S.W.2d 143 (Tex.Cr.App.1955); Ex parte Wright, 138 Tex.Cr.R. 350, 136 S.W.2d 212 (1940).
When one is held in custody under a complaint and seeks release, it is incumbent upon the State to introduce against him sufficient evidence to show probable cause of holding him. Ex parte Villareal, 80 Tex.Cr.R. 23, 187 S.W. 214 (1916); Ex parte Guynn, 116 Tex.Cr.R. 121, 32 S.W.2d 187 (1930).2
The appellant relies upon Ex parte Wright, supra, in which the only evidence offered by the State to show probable cause *276for detention was the complaint charging burglary and the warrant of arrest. Noting the provisions of then Article 155, Vernon’s Ann.C.C.P., 1925 (now Article 11.43, Vernon’s Ann.C.C.P., 1965, unchanged) that “no presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority” and relying upon the decision in Ex parte Guynn, supra, this court found that the complaint and arrest warrant were insufficient to show probable cause for confinement and ordered the petitioner Wright discharged.
The State calls our attention to Ex parte Livingston, 155 Tex.Cr.R. 218, 233 S.W.2d 503 (1950), where upon a hearing of writ of habeas corpus the State only introduced into evidence three complaints charging three separate violations of the liquor laws. The opinion noted “No information upon these complaints was offered in evidence. No capias or warrant of arrest upon the complaints was shown.” The State seizes upon this language to argue that if the informations and arrest warrant had been introduced the evidence would have been sufficient to have detained Livingston. We cannot agree with such construction. The court in Livingston relied upon the authority of Ex parte Wright, supra, noting that the Wright opinion held it was incumbent upon the State to introduce against an individual held in custody upon a complaint sufficient evidence to show probable cause for holding him in custody.
If the affidavit or complaint, like the ones in Wright and Livingston, do not state probable cause itself, then it alone is insufficient. The mere filing of an information based upon such complaint3 adds nothing in the way of evidence of probable cause. Likewise, the ministerial act of the issuance of a capias or warrant of arrest adds nothing toward the proof of facts showing probable cause.
In light of the foregoing, I concur in the result reached by the majority, but I do so on the basis that the affidavit or complaint upon which the information was based does not on its face reflect probable cause.4 If the affidavit or complaint in the instant case had stated probable cause, then a different result would be called for. While the decision in Wright was correct, it should be remembered that much water has passed under the bridge since that decision. In Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965), the United States Supreme Court, in light of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), held that the affidavit or complaint must set forth a sufficient basis upon which an independent finding of probable cause can be made by the magistrate before the issuance of an arrest warrant. This is at least an essential requirement as to the admissibility of the fruits of any search incident to the execution of such arrest warrant. In this regard there is no difference between the requirements for the issuance of arrest and search warrants. Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Lowery v. State, 499 S.W.2d 160, 162 (Tex.Cr.App.1973).
*277At the time of the decision in Ex parte Wright, supra, it was not the normal practice to have the affidavit or complaint for the issuance of an arrest warrant or capias reflect probable cause as we now understand it. Further, even since the decisions in the foregoing cases, this court has held that the rules relating to the necessity of stating facts constituting probable cause in a complaint or affidavit for issuance of a warrant of arrest used as a basis for a search, or for the issuance of a search warrant, have no application to a complaint made for the purposes of prosecution only. Vallejo v. State, 408 S.W.2d 113 (Tex.Cr.App.1966); Cisco v. State, 411 S.W.2d 547 (Tex.Cr.App.1967); Aguirre v. State, 416 S.W.2d 406 (Tex.Cr.App.1967); Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App.1967); Lujan v. State, 428 S.W.2d 336 (Tex.Cr.App.1968); Dusek v. State, 467 S.W.2d 270 (Tex.Cr.App.1971); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973); Wells v. State, 516 S.W.2d 663 (Tex.Cr.App.1974). It has been said that requisites of an affidavit or complaint to support a prosecution under an information are not as stringent as the requirements of an affidavit or complaint for a search warrant, Wells v. State, supra, and that the purpose of such complaint filed for prosecution only is to apprise the accused of facts surrounding the offense with which he is charged to permit him to prepare defense to such charge. Chapa v. State, supra.
As a result of the former practice and this court’s ruling that the complaint for the issuance of an arrest warrant need not state probable cause where used for the purposes of prosecution only as well as the problem of draftmanship in the filing of affidavits so as to reflect adequate probable cause, many of such affidavits filed do not reflect probable cause. Where such an affidavit not reflecting probable cause is used in connection with an information based thereon and the capias issued are the sole basis for detaining a petitioner at a habeas corpus application hearing, the petitioner is entitled to be discharged.
If, on the other hand, the affidavit or complaint states probable cause and it is properly introduced, the petitioner is not entitled to be discharged. To this extent, in my opinion, the decision in Wright should be modified.
While Article 11.43, supra, provides that in habeas corpus proceedings “No presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority” (Emphasis supplied), the introduction of an affidavit or complaint reflecting on its face probable cause demonstrates far more than the mere fact of accusation.
For the reasons stated, I concur.
DOUGLAS, J., joins in this concurrence.. In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court of the United States held that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest.
. In a hearing on a writ of habeas corpus the State is not required to call all its witnesses and develop its entire case. Moses v. State, 168 Tex.Cr.R. 409, 328 S.W.2d 885 (1959).
. See Article 21.20, Vernon’s Ann.C.C.P.
. Said affidavit reads:
“I, J. Martinez, do solemnly swear that I have good reason to believe and do believe that heretofore, to wit, on or about the 4 day of June A.D. 1976, in the County of El Paso, State of Texas, Arturo Garcia, Mario Gonzalo Ortega Ramirez, and Juan R. Ortega, acting together did then and there recklessly engage in conduct that place (sic) George Foster in imminent danger of serious bodily injury by then and there pointing a knife at the said George Foster, against the peace and dignity of the State.”
The affidavit was signed and sworn to by J. Martinez. The affidavit does not reflect that the affiant’s belief was based on personal knowledge or whether it was based on hearsay information received from another unidentified source. If it was the latter, the affidavit does not reflect how the unidentified source received his information. The affidavit does not reflect probable cause. See Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App. 1973).