                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-19-00237-CR


                          THE STATE OF TEXAS, APPELLANT

                                             V.

                               MARK HODGES, APPELLEE

                      On Appeal from the County Court at Law No. 2
                                  Lubbock County, Texas
              Trial Court No. 2018-493,664, Honorable Drue Farmer, Presiding

                                     January 8, 2020

                                        OPINION
                      Before QUINN, C.J. and PIRTLE and DOSS, J.J.

       The State asks us if an affidavit is an affidavit when no one administered an oath

to the affiant who signed it. The trial court said it was not and granted the motion of Mark

Hodges to suppress evidence involuntary obtained upon execution of a warrant permitting

a blood draw. The affidavit in question was used to obtain the warrant. It was signed by

Officer One at the direction of Officer Two, who then signed the jurat. Both testified at the

suppression hearing that no one administered any type of oath to Officer One. Nor did

the magistrate to whom they presented the affidavit and warrant application administer
any oath to assess the truthfulness of Officer One’s statements. The State argues that

the affidavit nonetheless complied with statute because 1) the affidavit’s preamble said

that “[t]he undersigned Affiant, being a Peace Officer . . . and being duly sworn, on oath

makes the following statements . . .” and 2) Officer One testified that he believed himself

to be under oath due to the foregoing passage and knew he “could be in legal jeopardy if

everything in [the affidavit] wasn’t true[.]” (Emphasis added). We affirm.

       Our analysis begins with observing that the standard of review is abused

discretion. It obligates us to view the evidence in the light most favorable to the trial

court’s ruling, afford almost complete deference to a trial court’s express or implied

findings of historical fact, and consider de novo the application of the law to those facts.

Marcopoulos v. State, 538 S.W.3d 596, 600 (Tex. Crim. App. 2017).

       Next, we turn to article 18.01(b) of the Code of Criminal Procedure. It states that

no search warrant shall issue unless sufficient facts are first presented to satisfy the

issuing magistrate that probable cause “does in fact exist for its issuance.” TEX. CODE

CRIM. PROC. ANN. art. 18.01(b) (West Supp. 2019). So too does it say that a “sworn

affidavit setting forth substantial facts establishing probable cause shall be filed in every

instance in which a search warrant is requested.” Id. According to our Court of Criminal

Appeals in Clay v. State, 391 S.W.3d 94 (Tex. Crim. App. 2013), “before a written

statement in support of a search warrant will constitute a ‘sworn affidavit,’ the necessary

oath must be administered ‘before’ a magistrate or other qualified officer.” Id. at 99. Such

has been true “for the better part of a hundred years.” Id. Implicit in the words “must be

administered” is the requirement that someone administer an oath before the writing

becomes a valid “sworn affidavit.”



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       Progress and developing technologies have caused our Court of Criminal Appeals

to adapt its edict in certain respects. For instance, an oath may now be administered

over the telephone. Id. Yet, neither our research nor the authority cited by the State

revealed an opinion from the high court dispensing with the almost 100-year-old rule that

“an oath must be administered” by a magistrate or qualified officer to make a document

an affidavit. It may have come close in its earlier opinion of Vaughn v. State, 146 Tex.

Crim. 586 (1943), where no formal oath was administered to the affiant.

       Yet, in Vaughn, the court upheld the affidavit while making several significant

observations. The first was that statute did not prescribe any particular form of oath. Id.

at 589. The second was that an oath is any form of attestation signifying the affiant is

bound in conscience to perform an act faithfully and truthfully. Id. The third was that the

words comprising the alleged oath suffice if a charge of perjury “might have been

predicated” on them if false statements appeared in the affidavit. Id. The fourth was, not

only that the magistrate (i.e., justice of the peace) to whom the affidavit and warrant

application were presented asked the affiant “if the facts set forth in said affidavit were

true and the witness replied that such facts were true to the best of his knowledge and

belief,” but also that the witness understood he “was taking an oath” at the time. Id. at

588. So, it may be that no formal oath was administered in Vaughn. Nevertheless, a

magistrate actually inquired into the truthfulness of the statements within the affidavit, and

the affiant understood he was taking an oath when inquiry was made.

       The circumstances before us have no one with authority to administer an oath

actually administering one in any way, shape, or form. Nor did anyone with authority to

administer an oath actually inquire into the truthfulness of Officer One’s statements within



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the purported affidavit. These alone distinguished the circumstances here from those in

Vaughn.

       And, though Officer One testified that he knew he was under oath when signing

the affidavit, he said so while also acknowledging that he knew no one had administered

any oath. That suggests he somehow placed himself under oath. Yet, the officer did not

testify about the content of the supposed oath he purportedly operated under. Nor did he

testify that the oath obligated him to acknowledge the truthfulness of what he said in the

affidavit. In fact, nowhere in the body of the affidavit did he actually attest that the

representations therein were true or correct. While such language appeared in the jurat

signed by Officer Two, though, it was preceded by the phrase “after being sworn by me.”

That is, it read that, “on this day personally appeared Affiant [Officer One] and after being

sworn by me, affirmed the statements contained therein are true and correct to the best

of his/her knowledge.” (Emphasis added). “[A]fter being sworn by me” tells the reader

that Officer Two somehow swore in or otherwise administered an oath to Officer One.

Yet, the latter conceded at the suppression hearing that Officer Two merely directed him

to sign the affidavit. Officer One was never “sworn by” Officer Two. Nor was he asked

by Officer Two if the statements were true and correct. Simply put, these representations

appearing in the jurat and confirmed by Officer Two’s signature were false.

       This leaves us to wonder whether the type of oath Officer One purportedly

operated under in his mind was the type sufficient to satisfy Vaughn. Such an oath would

be one exposing the affiant to charges of perjury if his representations proved false. As

the Vaughn court said, in “perjury cases, the rule is that there is a valid oath sufficient to

form the basis of a charge of perjury when there is some form of an unequivocal and



                                              4
present act, in the presence of the officer authorized to administer the oath, whereby the

affiant consciously takes on himself the obligation of an oath.” Vaughn, 177 S.W.2d at 60.

An “unequivocal and present act” refers to conduct. Adding that to the passage “whereby

the affiant consciously takes on himself the obligation of an oath,” we read Vaughn to

require, at the very least, the affiant to visually manifest through conduct his intent to be

truthful. Officer One 1) having not verbally taken an oath affirming the truthfulness of his

statements, 2) having not actually been asked in some way by anyone if the statements

were true and correct, and 3) having not personally represented in or outside the affidavit

that the statements were true, we are left speculating on the nature of the visible conduct

in which Officer One engaged to manifest his intent to be truthful. We are left to wonder

how the oath he allegedly operated under in his own mind would place him within the

scope of Vaughn’s concept of perjury. Surely, his participation in the execution of an

affidavit where Officer Two falsely said Officer One was “sworn by me” does not satisfy

the requisites.

       The trial court noted other peculiarities in the evidence before it. For instance, in

its fact finding number 4, it expressed as follows: “Despite the fact that the affidavit for

search warrant says, ‘The undersigned Affiant, being a Peace Officer under the laws of

Texas and being duly sworn, on oath makes the following statements and accusations,’

at no time was Officer [One] actually sworn to the allegations contained in his affidavit.”

In finding of fact number 5 it stated the following: “Despite the fact that the affidavit for

search warrant says, ‘Before me, an official authorized to administer and authorize this

oath . . . on this day personally appeared Affiant and after being sworn by me, affirmed

the statements contained therein are true and correct to the best of his/her knowledge,’



                                             5
at no time did Officer [Two] administer any such oath to Officer [One].” To that we add

finding of fact number 6 wherein the court said that, “[i]n fact, Officer [One] testified that

he is not required to take an oath prior to submitting an affidavit for a search warrant to a

magistrate, and Officer [Two] testified it is not his practice to administer an oath to an

affiant seeking a search warrant for a suspect’s blood in a driving while intoxicated

investigation.”

        Each finding suggests a concern the trial court had with what the officers were

saying, both in the affidavit and their live testimony. The officers seemed to say one thing

in the affidavit only to contradict it through their live testimony. From that concern and the

findings illustrating it, we cannot say that the credibility of the officers played no part in

the trial court’s decision. The opposite seems true. Indeed, one could question the

credibility of Officer One’s testimony about believing he was under oath while at the same

time believing that an oath was unnecessary. And, resolution of those credibility issues

fell within the bailiwick of the trial court.1 And, in the trial court granting the motion to

suppress, it would be appropriate for us to imply that the trial court doubted the veracity

of the officers’ testimony. See Powell v. State, No. 03-10-00728-CR, 2011 Tex. App.

LEXIS 7601, at *12–13 (Tex. App.—Austin Sept. 14, 2011, no pet.) (mem. op., not

designated for publication) (where explicit fact findings were executed and stating that in

the absence of explicit findings on a contested issue, we assume the trial court made




        1 These credibility issues, the manner of their resolution, and our obligation to defer to the way they

were resolved by the trial court tend to rebut the State’s argument that the standard of review at bar is de
novo. We are not required to assume everything the two witnesses said was accurate. Nor was the trial
court. Instead, the trial court was free to disbelieve aspects of their testimony, and we must defer to that.
Sullivan v. State, No. 07-16-00227-CR, 2017 Tex. App. LEXIS 7810, at *2–3 (Tex. App.—Amarillo Aug. 16,
2017, no pet.) (mem. op, not designated for publication).

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those implied findings necessary to support its ultimate ruling as long as they are

supported by the record).

         In short, we are bound to follow precedent from the Court of Criminal Appeals. It

said that before a written statement in support of a search warrant constitutes a “sworn

affidavit,” the requisite oath must be administered before a magistrate or other qualified

officer. Clay, 391 S.W.3d at 99. It may have occasion to change that edict given its grant

of the petition for discretionary review in Wheeler v. State, 573 S.W.3d 437 (Tex. App.—

Fort Worth 2019, pet. granted).2 Yet, we must leave to the Court of Criminal Appeals the

decision whether to deviate from Clay and other of its edicts, such as “it is that act of

swearing . . . that is essential.” See Smith v. State, 207 S.W.3d 787, 792 (Tex. Crim. App.

2006).     And, though some Texas intermediate appellate courts have attempted to

dispense with the need for an administered oath, see, e.g., Ashcraft v. State, No. 03-12-

00660-CR, 2013 Tex. App. LEXIS 10402, at *16–21 (Tex. App.—Austin Aug. 20, 2013,

no pet.) (mem. op., not designated for publication) (affirming the trial court’s decision to

deny suppression even though no oath was administered), they are not the court with

final say.3 It is the former and its declarations that we must follow.




        2 In Wheeler, 573 S.W.3d at 443, the intermediate court of appeals invalidated an affidavit executed

by an affiant to whom no one administered an oath. That it, like the affidavit at bar, contained verbiage in
its preamble about being sworn to and under oath mattered not. According to the court, “[t]his
uncontradicted, affirmative evidence that there was no oath or affirmation to the affidavit compels us to
conclude that the oath recitations relied on by the State were false and cannot render the affidavit sworn.”
Id.

        3 One circumstance distinguishing Ashcraft from our case is the apparent absence of a

misrepresentation by the person executing the jurat. That individual did not falsely state that she
administered an oath to the affiant. Nor do the facts recited in the opinion reveal the peculiarities in witness
testimony apparently observed by the trial court here; thus, witness credibility may not have been in play in
Ashcraft.

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      The State’s issue on appeal is overruled.      The trial court had reasonable

evidentiary basis to conclude that the search warrant permitting a blood draw was void

because it was founded on an unsworn affidavit. Thus, we affirm its order granting the

motion to suppress.



                                                    Brian Quinn
                                                    Chief Justice

Publish.




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