The State of Texas v. Sarah Leeann Nix ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00123-CR
The State of Texas, Appellant
v.
Sarah Leeann Nix, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF COMAL COUNTY
NO. 2017CR2590, THE HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDING
DISSENTING OPINION
I respectfully dissent because the trial court was correct in concluding that the State
adduced no evidence of an oath. By concluding otherwise, the majority creates a court-of-appeals
split and smudges the oath–affidavit distinction that has run throughout decades of Court of
Criminal Appeals precedent.
First bear in mind what the majority calls the evidence of an oath here: (1) the
combination of the text from the preamble to Deputy Pinilla’s affidavit that says “being duly
sworn, on oath,” and his signature on the affidavit; (2) the combination of the text from the
affidavit’s jurat that says “[s]ubscribed and sworn to before me” and the notary’s signature, and
stamp, just under that jurat; and (3) the combination of the text from the warrant that says “the
Affiant, whose name appears on the Affidavit . . . and [who] did heretofore this day subscribe[]
and swore to said affidavit before me” and the magistrate’s signature on the warrant.
However, most of that evidence cannot constitute evidence of an oath under the
Wheeler decisions from the Court of Criminal Appeals and the Second Court of Appeals. See
generally Wheeler v. State, 616 S.W.3d 858 (Tex. Crim. App. 2021) [hereinafter CCA’s Wheeler];
Wheeler v. State, 573 S.W.3d 437 (Tex. App.—Fort Worth 2019) [hereinafter Second Court’s
Wheeler], aff’d by CCA’s Wheeler. CCA’s Wheeler explains the arguments and holdings in
Second Court’s Wheeler, which includes rejecting as evidence of an oath the same affidavit
boilerplate text that exists here—the affidavit there contained the same preamble and jurat
language that the majority here relies on. See CCA’s Wheeler, 616 S.W.3d at 861 & n.2. The
opinion then explains that the Second Court rejected the same arguments from that language that
the State makes here:
The State had argued on appeal that the oath recitation in the affidavit’s and
warrant’s preambles were sufficient to support a finding that the oath requirement
had been satisfied. The court of appeals, however, disagreed. It reasoned that the
evidence failed to show that [Officer] Bonner signed the affidavit with “‘a sense of
seriousness and responsibility’ or with a ‘sense of [his] moral duty to tell the truth,’”
such that it could not find that the purposes of the oath had been satisfied. This,
coupled with the affirmative evidence from [the notary] and Bonner that no oath
or its equivalent actually occurred, foreclosed a finding that the oath requirement
had been satisfied. Thus, the court of appeals held the warrant was defective and
proceeded to consider whether the good-faith exception applied. In concluding that
it did not, the court reasoned that Officer Bonner was objectively unreasonable in
relying on a warrant he knew was based on an unsworn affidavit.
Id. at 862 (internal citations omitted) (quoting and citing Second Court’s Wheeler, 573 S.W.3d
at 443–44, 446). The majority here thus creates a court-of-appeals split with Second Court’s
Wheeler by crediting the same boilerplate-text evidence that the court there rejected.
But more than this, the explanation in CCA’s Wheeler about the high Court’s
decades of oath jurisprudence shows a distinction between a probable-cause affidavit and its
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associated predicate oath. The affidavit and the oath are not the same thing, and the oath must
precede the affidavit:
[I]t is well established under Texas law that a search warrant cannot properly issue
without a probable-cause affidavit made under oath. “An oath is any form of
attestation by which a person signifies that he is bound in conscience to perform an
act faithfully and truthfully.” “The difference between an affidavit and an oath is
that an affidavit consists of a statement of fact, which is sworn to as the truth, while
an oath is a pledge.” Texas law has always required that the oath must be made
“before” or in the presence of another to convey the solemnity and critical nature
of being truthful.
Id. at 864 (internal citations omitted) (first quoting Vaughn v. State, 177 S.W.2d 59, 60 (Tex. Crim.
App. 1943), then citing Clay v. State, 391 S.W.3d 94, 98–99 (Tex. Crim. App. 2013)). The Court
added that it “has held for the better part of a hundred years that, 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. (internal quotation omitted)
(quoting Clay, 391 S.W.3d at 98–99).
The “administering” or “attestation” or swearing of an oath that the Court refers to
must exist outside the affidavit itself to be consistent with Court of Criminal Appeals precedent.
Clay all but confirms this when it says that “the purpose of the signature on an affidavit is to
memorialize the fact that the affiant took an oath” and observes that the “act of swearing [an oath],
not the signature itself [on an affidavit], . . . is essential” under constitutional and statutory
requirements. 391 S.W.3d at 97 (citing and quoting Smith v. State, 207 S.W.3d 787, 791, 792
(Tex. Crim. App. 2006)). And Vaughn exhibits this because there, although the affiant “did not
say anything like ‘I swear this is true, so help me God,’” the affiant outside the text of the affidavit
told the magistrate that the affidavit’s “facts were true to the best of his knowledge and belief” and
signed the affidavit understanding that by doing so he was taking an oath. See 177 S.W.2d at 60.
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But the kicker is CCA’s Wheeler. The Court there held that the good-faith
exception to the warrant requirement did not support the warrant because Officer Bonner “cannot
be said to have acted in ‘objective good faith reliance’ on the search warrant.” CCA’s Wheeler,
616 S.W.3d at 867. The Court so held because under the facts presented, Officer Bonner knew
the warrant “was based on an unsworn affidavit.” See id. at 862–63. It is logically impossible for
Officer Bonner to have known that his affidavit was unsworn if his affidavit’s boilerplate text—
virtually identical to the text here—can constitute evidence of an oath. If it were evidence of an
oath, then it could not have been said that Officer Bonner knew that his affidavit was unsworn.
Thus, under the reasoning in CCA’s Wheeler, the boilerplate text that the majority here relies on
cannot constitute evidence of an oath.
Beyond Deputy Pinilla’s affidavit’s preamble and jurat, the majority here also relies
on the text of the warrant signed by Judge Stephens, specifically its statement that Deputy Pinilla
swore an oath before Judge Stephens. But we know from Judge Stephens himself that he
administered no such oath. That is, although Deputy Pinilla testified that he could not remember
whether he swore any oath before Judge Stephens, Judge Stephens still found that there was no
such oath made by Deputy Pinilla before Judge Stephens. The State objects to this finding because
it makes Judge Stephens a material witness. But the legal barrier to judges’ acting as witnesses in
trials over which they are presiding is a rule of evidence—specifically, Rule of Evidence 605—
and the Rules of Evidence (save for the privilege rules) do not apply in suppression hearings.
Granados v. State, 85 S.W.3d 217, 227–28 (Tex. Crim. App. 2002). The only two parties to the
conversation between Judge Stephens and Deputy Pinilla tell us, respectively, that no oath was
sworn or that the party cannot remember whether any oath was sworn. Additionally, a video of
this encounter, introduced into evidence as State’s Exhibit 2, does not show that any oath was
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administered. In this specific context, concluding that the State adduced no evidence of an oath
sworn by Deputy Pinilla before Judge Stephens is reasonably supported by the record. See Young
v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009) (“If the trial court’s ruling regarding a
motion to suppress is reasonably supported by the record and is correct under any theory of law
applicable to the case, the reviewing court must affirm.”).
All this leaves the State without any evidence of an oath. None of the items that
the majority relies on can constitute evidence of an oath under Court of Criminal Appeals
precedents. I therefore respectfully dissent.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Kelly and Smith
Filed: March 29, 2023
Do Not Publish
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