Dissenting Opinion issued September 26, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00026-CR
                           ———————————
                      THE STATE OF TEXAS, Appellant
                                        V.
                        EFRAIN MARTINEZ, Appellee



                On Appeal from the County Court at Law No. 3
                          Fort Bend County, Texas
                    Trial Court Case No. 12-CCR-161047



              DISSENTING MEMORANDUM OPINION

      Our jurisprudence’s deference to magistrates is grounded upon our belief in

their careful discernment of all allegations necessary to justify the issuance of a

warrant. Because the affidavit for the search warrant lacked any facts about the
identity, credibility or reliability of a source who, at an unspecified time in the

past, had an unspecified “suspicion” about the defendant, it failed to contain

the   necessary allegations that legally establish probable cause to justify

the issuance of the search warrant.

       I dissent.

       The affidavit failed to reveal when the informant received his information

and when the wrongdoing described in the affidavit took place. This deficiency

rendered the information stale and failed to provide the magistrate a substantial

basis from which to determine probable cause. The affidavit not only fails to state

that the informant had personal knowledge or firsthand observation of criminal

wrongdoing, there was no firsthand evidence or observation of people

suspiciously frequenting the house or using drugs. Rather, the affiant provided the

magistrate with a conclusory statement from an unidentified informant, which he

merely ratified.

       Indeed, that the affidavit alleges probable cause of “cocaine” in the

defendant’s house (when nowhere within the four corners of the affidavit is there

evidence as to the presence of cocaine on defendant’s premises) is telling evidence

that the magistrate signed off on a boilerplate affidavit and warrant unrelated to the

facts of this case.




                                          2
                                               Jim Sharp
                                               Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Justice Sharp, dissenting.

Do not publish. TEX. R. APP. P. 47.2(b).




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