Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the County Court at Law No. 2 Lubbock County,
Texas Trial Court No. 2018-493, 664, Honorable Drue Farmer,
QUINN, C.J. and PIRTLE and DOSS, J.J.
QUINN CHIEF JUSTICE.
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
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).
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
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.
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.
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 the purported affidavit. These
alone distinguished the circumstances here from those in
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.
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 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.
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,' 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
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. 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
those implied findings necessary to support its ultimate
ruling as long as they are supported by the record).
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). 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. ...