Green v. State , 1989 Tex. App. LEXIS 541 ( 1989 )

CHAPA, Justice

concurring.

I concur.

The reliance by the State on Reese v. State, 712 S.W.2d 131, 132 (Tex.Crim.App. 1986) and Lyons v. State, 503 S.W.2d 254 (Tex.Crim.App.1973) is misplaced.

Reese, supra, involves the question of whether the affidavit was properly sworn to and properly incorporated by reference in the warrant.

Lyons, supra, relying on Martinez v. State, 162 Tex.Cr.R. 356, 285 S.W.2d 221 (1955), involves a warrant with a typographical error in the date which the court found did not invalidate the warrant. However, the officer that prepared the document presented undisputed testimony that the date was a typographical error.

Martinez, supra, also involved undisputed testimony of a magistrate of a clerical error in the warrant.

However, the record here reveals that the State merely presented the warrant and complaint and promptly rested and closed. The warrant showed it was issued by the magistrate on March 20, 1987, the complaint was dated March 25, 1987, and the warrant was executed also on March 25, 1987. Since the State presented no evidence that the date of March 20,1987 on the warrant was a typographical error, it must be concluded that the warrant was stale when executed.

The judgment should be reversed and the cause remanded.