Jerry Wayne Bannister v. State ( 2008 )

NO. 07-06-0280-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 17, 2008

______________________________

JERRY WAYNE BANNISTER,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF HENDERSON COUNTY;

NO. 2005-0854CL2; HON. NANCY PERRYMAN, PRESIDING

_______________________________

 

Concurring Opinion

________________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          I concur in the decision to reverse and remand the cause for the following reason. The court in Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007) outlined what a defendant must show in order to be granted a Franks hearing. That is a defendant must 1) allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false, 2) accompany these allegations with an offer of proof stating the supporting reasons, and 3) show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support issuance of the warrant. Id.

          In the case at bar, appellant pointed out the portion of the affidavit that he believed was false; he contended that the pictures attached to the affiant’s affidavit were not of appellant’s house as stated in the affidavit. Appellant then accompanied his allegations with an offer of proof consisting of pictures of his actual home which home appears to be different from the one in the affiant’s pictures. And, finally, in excising the pictures of the house at which appellant allegedly possessed drug paraphernalia from the affidavit, the remaining content of the affidavit is insufficient to support the issuance of the warrant based on the fact that there is probable cause that drug paraphernalia would be found at appellant’s home. Therefore, I conclude that appellant established his right to and the trial court should have held a Franks hearing. Harris, 227 S.W.3d at 85.

          Accordingly, I reverse the judgment and remand the case for further proceedings. 

 

                                                                           Brian Quinn

                                                                          Chief Justice

Do not publish.

           

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  NO. 07-10-0268-CV

                                                                             

                                                   IN THE COURT OF APPEALS

 

                                       FOR THE SEVENTH DISTRICT OF TEXAS

 

                                                                 AT AMARILLO

 

                                                                      PANEL B

 

                                                           SEPTEMBER 9, 2010

                                            ______________________________

 

                                                        FRANK GROENTEMAN,

 

Appellant

 

                                                                            V.

 

                                                          LISA GROENTEMAN,

 

Appellee

 

_________________________________

 

                       FROM THE 367th DISTRICT COURT OF DENTON COUNTY;

 

                  NO. 2010-50554-367; HONORABLE E. LEE GABRIEL, PRESIDING

                                           _______________________________

 

                                                  ORDER DISMISSING APPEAL

    _______________________________

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant has filed a motion to dismiss.  Without passing on the merits of the case, we grant the motion pursuant to Texas Rule of Appellate Procedure 42.1(a)(1) and dismiss the appeal. Having dismissed the appeal at appellant=s request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

 

 

Brian Quinn

       Chief Justice