          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. PD-1551-10



                            GARY LYN BLACK, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE TENTH COURT OF APPEALS
                         JOHNSON COUNTY

              M EYERS, J., filed a dissenting opinion.

                           DISSENTING OPINION

       The warrants at issue here were defective, thus the trial court erred in denying

Appellant’s motion to suppress evidence gained from the invalid stop. The trial court did

not adequately address the inconsistencies in the dates of the arrest warrants, nor were the

court’s findings supported by the evidence presented. The State did not fulfill its burden

in proving the validity of the warrants during the initial suppression hearing, and the
                                                                           Black Dissent - Page 2

prosecutor’s attempt to remedy the faulty hearing during trial should have been prohibited

by the court.

       Appellant was stopped by an officer acting on behalf of an undercover

investigator. The stop was based on active warrants for his arrest for offenses including

Failure to Appear and Displaying Expired License Plates. Both warrants were signed and

issued by Judge Jacobs on April 19, 2007, but the requisite affidavits were not sworn until

April 20, 2007 and May 1, 2007, respectively. During the search of the vehicle incident to

Appellant’s arrest, the officer found drugs in Appellant’s vehicle.

       Appellant filed a motion to suppress evidence on the ground that the arrest was

conducted without a warrant, and concluded that the basis for the stop was invalid

because the supporting affidavits were made after the warrants were issued. The State

presented testimony from the clerk of the court regarding the failure to appear offense and

from the arresting officer about Appellant’s displaying expired license plates charge. The

trial court denied the motion to suppress. After the trial began, the State requested to

reopen the suppression hearing outside of the jury’s presence. The court allowed Judge

Jacobs to testify that she was present when Appellant failed to appear and she issued the

warrant thereafter. This statement was used by the court of appeals in ruling that T EX.

C ODE C RIM. P ROC. art. 45.103 allowed the judge to issue the arrest warrant without a

sworn complaint for failure to appear.1 Black v. State, No. 10-08-00290-CR, 2010 Tex.



       1
           Tex. Code Crim. Proc. art. 45.103. Warrant Without Complaint:
                                                                              Black Dissent - Page 3

App. LEXIS 7263, at *2 (Tex. App.–Waco Sept. 1, 2010, pet. granted) (mem. op., not

designated for publication).

       Both warrants had problems with back-dating, creating suspicion as to the integrity

of the stop. The arrest warrant for Appellant’s failure to appear is particularly troubling

because there is no supporting evidence to indicate that the offense occurred in view of

Judge Jacobs. The State likely knew the suppression hearing was weak and probably

would not stand up to appeal, so the prosecutor requested to supplement the record after

trial commenced.

       Judge Jacobs’s brief statement asserting that the offense of failure to appear

occurred in her view is not supported by any evidence other than her testimony. Her

account of the events at the court is contrary to the manner courts generally handle an

instance when the defendant fails to appear. Typically, a court clerk manages the docket

and makes note of non-appearances. The judge has little to no involvement with this

process. Even if a judge had knowledge of the offense, the offense does not necessarily

occur in his or her view, within the plain meaning of the statute. Therefore, I do not

believe that the trial court should have applied T EX. C ODE C RIM. P ROC. art. 45.103 in

determining that the offense occurred in the judge’s view.

       Based on the problems with the warrants here, I cannot support the majority’s




If a criminal offense that a justice of the peace has jurisdiction to try is committed within the
view of the justice, the justice may issue a warrant for the arrest of the offender.
                                                                       Black Dissent - Page 4

contention that the reviewing court may consider evidence outside of the suppression

hearing without the consent of both parties. To do so here would allow the State to bolster

inadequate warrants with information that should not factor into the probable cause

determination of the warrant. See Massey v. State, 933 S.W.2d 141 (Tex. Crim. App.

1996). The trial court acted in contravention of our holding in Rachal v. State, 917

S.W.2d 799 (Tex. Crim. App. 1996) by reopening the suppression hearing without

Appellant’s consent, and the court of appeals erred in reviewing Judge Jacobs’s

testimony, taken beyond the suppression hearing, in violation of Hardesty v. State, 667

S.W.2d 130 (Tex. Crim. App. 1984).

       This is not to comment on the validity of the majority’s analysis in developing the

corollary rule, but if I had the majority I would instead focus on the issues with the lower

courts’s actions, rather than distinguishing our cases. Accordingly, I would reverse the

decision of the court of appeals and remand for a new trial.




                                                                Meyers, J.




Filed: February 15, 2012

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