                                    NO. 07-06-0280-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                  OCTOBER 17, 2008
                           ______________________________


                              JERRY WAYNE BANNISTER,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                                 Appellee

                        _________________________________

      FROM THE COUNTY COURT AT LAW NO. 2 OF HENDERSON COUNTY;

             NO. 2005-0854CL2; HON. NANCY PERRYMAN, PRESIDING
                       _______________________________

                                 Concurring Opinion
                         ________________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       I concur in the decision to reverse and remand the cause for the following reason.

The court in Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007) outlined what a

defendant must show in order to be granted a Franks hearing. That is a defendant must

1) allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically

pointing out the portion of the affidavit claimed to be false, 2) accompany these allegations
with an offer of proof stating the supporting reasons, and 3) show that when the portion of

the affidavit alleged to be false is excised from the affidavit, the remaining content is

insufficient to support issuance of the warrant. Id.

       In the case at bar, appellant pointed out the portion of the affidavit that he believed

was false; he contended that the pictures attached to the affiant’s affidavit were not of

appellant’s house as stated in the affidavit. Appellant then accompanied his allegations

with an offer of proof consisting of pictures of his actual home which home appears to be

different from the one in the affiant’s pictures. And, finally, in excising the pictures of the

house at which appellant allegedly possessed drug paraphernalia from the affidavit, the

remaining content of the affidavit is insufficient to support the issuance of the warrant

based on the fact that there is probable cause that drug paraphernalia would be found at

appellant’s home. Therefore, I conclude that appellant established his right to and the trial

court should have held a Franks hearing. Harris, 227 S.W.3d at 85.

       Accordingly, I reverse the judgment and remand the case for further proceedings.




                                                  Brian Quinn
                                                  Chief Justice

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