                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00289-CR


THE STATE OF TEXAS                                                          STATE

                                         V.

SCOTT ELLERY CRAWFORD JR.                                               APPELLEE


                                      ----------

      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
                   TRIAL COURT NO. 1344184

                                      ----------

                          CONCURRING OPINION

                                      ----------

      I write separately to express my concern that the trial and appellate bench

and bar need guidance from the Texas Court of Criminal Appeals. Although

there are certainly problems with the warrant and supporting affidavit in this case,

the legislature has enacted article 38.23(b) of the code of criminal procedure,
known as the “good faith exception.” 1 The Texas Court of Criminal Appeals

instructs us that article 38.23(b) means that

      [e]vidence obtained by a police officer acting in good faith reliance
      upon a warrant based upon a magistrate’s determination of probable
      cause should not be rendered inadmissible due to a defect found in
      the warrant subsequent to its execution. 2

It appears from the plain meaning of the statute and case law dealing with

evidence obtained pursuant to a defective warrant that no matter how bad the

supporting affidavit or how infirm the warrant, the evidence will not be

suppressed.    The reasoning is that, absent a Franks 3 violation, there is no

misconduct to be discouraged by suppression. 4 Does this mean that although an

officer limits the search request in the supporting affidavit, a magistrate may

authorize a much more expansive search? If the affidavit contains no indication

why the source of the information forming the basis of the belief of criminal

activity is reliable, once the magistrate signs the warrant, is the sufficiency of the

affidavit irrelevant?   Suppose the supporting affidavit contains no jurat?       We

might avoid these questions by saying, “A magistrate would not issue a warrant

based on such a deficient affidavit,” or “A magistrate would be too careful to


      1
       Tex. Code Crim. Proc. Ann. art. 38.23(b) (West 2005).
      2
       Dunn v. State, 951 S.W.2d 478, 479 (Tex. Crim. App. 1997).
      3
       Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978).
      4
       Dunn, 951 S.W.2d at 482.



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issue a warrant that exceeded the scope of the request.” But everybody slips up,

even a conscientious magistrate.

      As I understand the state of the law in Texas, once the warrant issues, the

only challenge that will lie is a Franks challenge. Surely lawyers are not being

put in the position of being able to challenge the admissibility of evidence

obtained pursuant to a defective warrant only by attacking the integrity of the

officer who swore to the affidavit. Say it ain’t so.

      With these concerns, I concur in the majority opinion.


                                                       /s/ Lee Ann Dauphinot

                                                       LEE ANN DAUPHINOT
                                                       JUSTICE

PUBLISH

DELIVERED: May 21, 2015




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