
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



Do not publish.







 

