the State of Texas v. Vidal Paz Junior

Reversed and Remanded and Majority and Concurring Memorandum
Opinions filed August 30, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00007-CR
THE STATE OF TEXAS, Appellant
V.
VIDAL PAZ JUNIOR, Appellee
On Appeal from the County Criminal Court at Law No. 12
Harris County, Texas
Trial Court Cause No. 2263131
CONCURRING MEMORANDUM OPINION
Acknowledging that the panel’s judgment is consistent with this court’s
precedent while strongly disagreeing with that precedent, I respectfully concur.
Specifically, I disagree with the deviation in our recent precedent from this court’s
precedents in other kinds of cases concerning (1) the inherent unreliability of out-
of-court statements from law enforcement officers being utilized for the truths of
the matters asserted; (2) affiants who swear to facts on behalf of another; and
(3) an affiant’s personal knowledge of facts. This tension will continue in our
court’s jurisprudence until it is resolved.
Affidavits are statements “in writing of a fact or facts signed by the party
making it, sworn to before an officer authorized to administer oaths, and officially
certified to by the officer under his seal of office.” Tex. Gov’t Code Ann.
§ 312.011(1); see also Mansions in the Forest, L.P. v. Montgomery Cnty., 365
S.W.3d 314, 316 (Tex. 2012) (per curiam). Unless authorized by statute, an
affidavit is insufficient unless the allegations therein are direct and unequivocal
and perjury can be assigned upon it. Burke v. Satterfield, 525 S.W.2d 950, 955
(Tex. 1975) (citing Spinks v. Matthews, 15 S.W. 1101 (Tex. 1891); Graham v.
McCarty, 7 S.W. 342 (Tex. 1887); Nagelson v. Fair Park Nat’l Bank, 351 S.W.2d
925 (Tex. App.—Dallas 1961, writ ref’d n. r. e.) and cases cited therein).
An objection that an affiant lacks personal knowledge of facts recited in the
affidavit is an objection as to the form of the affidavit. See Dodge v. Durdin, 187
S.W.3d 523, 532 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Stewart v.
Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.). An
objection to the form of an affidavit must be made in the trial court, or it is waived.
See Dodge, 187 S.W.3d at 532. Here, Paz argued to the trial court that the
complaint against him was defective because (among other things) the magistrate
was unable to determine whether the affiant was credible. In the same paragraph,
Paz directly invokes precedents concerning personal knowledge. Therefore, this
issue is preserved and presented.
The complaint in the record is signed by an affiant who reveals she “has
good reason to believe and does believe” that Paz committed a crime. The
Supreme Court of Texas instructs us that such belief is legally insufficient. Kerlin
v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam) (“An affiant’s belief about
the facts is legally insufficient.”) (emphasis added). A legally insufficient belief
about the facts giving rise to a crime is wholly insufficient to support a complaint
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under Texas Code of Criminal Procedure article 2.04. See Tex. Code Crim. Proc.
Ann. art. 2.04.
The panel’s decision also deviates from Texas Supreme Court jurisprudence
concerning an affiant’s personal knowledge of relevant facts. See In re E.I.
DuPont de Nemours & Co., 136 S.W.3d 218, 214 (Tex. 2004) (orig. proceeding)
(per curiam) (“For an affidavit to have probative value, the affiant must swear that
the facts presented in the affidavit reflect his personal knowledge.”).
Here, the sworn information does not reveal that the affiant has personal
knowledge of any facts. Therefore, it is legally insufficient. See Kerlin, 274
S.W.3d at 668 (“An affidavit showing no basis for personal knowledge is legally
insufficient.”); see also B.Z.B., Inc. v. Clark, No. 14-11-00056-CV, 2012 WL
353783, at *2-3 (Tex. App.—Houston [14th Dist.] Feb. 2, 2012, no pet.) (mem.
op.) (holding statement that, as a direct result of a party’s breach of contract,
claimants lost the right to contest an allegedly erroneous judgment, was conclusory
because it stated a conclusion and did not provide supporting facts); Chea v. Poon,
No. 14-08-01134-CV, 2010 WL 4684711, at *6 (Tex. App.—Houston [14th Dist.]
Nov. 18, 2010, pet. denied) (mem. op.) (holding statement that, if a defendant had
performed under a contract, there would have been no foreclosure sale, was
conclusory); CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied) (holding statement that the last payment on the note
at issue received from the maker was for $111.50 received in May 2004, was
conclusory because it stated a conclusion and did not provide supporting facts).
An affiant’s position or title may permit them to have sufficient personal
knowledge of the facts. See, e.g., Valenzuela v. State & Cnty. Mut. Fire Ins. Co.,
317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing
Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 543 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied)). Here, however, there is no evidence as to who the
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affiant was, what their relationship was to the information they were conveying,
how they developed their beliefs, when they developed those beliefs, or whether
there was any indicia of reliability.
The panel concluded that the officer’s narrative enabled a HCDAO
employee to satisfy statutory requirements concerning informations. I respectfully
disagree. The narrative at issue is an out-of-court statement being introduced to
prove the truth of the matter asserted, i.e., “defendant committed a crime;” this
makes it hearsay. See Tex. R. Evid. 801. This hearsay is inadmissible. Id. at 802.
This hearsay is not subject to an exception. Compare id. with id. at 803, 804 &
805. Further, the affidavit does not even identify the officer’s narrative as the
source of those facts.
“The general rule against the admission of hearsay statements is based on
their inherent unreliability.” Fischer v. State, 207 S.W.3d 846, 852 (Tex. App.—
Houston [14th Dist.] 2006), aff’d, 252 S.W.3d 375 (Tex. Crim. App. 2008). Such
statements have no probative weight and add zero credibility to an affiant’s
testimony. See Kerlin, 274 S.W.3d at 668 (affiant whose testimony was based on
the facts that she “heard testimony”, “reviewed documents”, and “read historical
accounts” “was hearsay and carrie[d] no probative weight” over objection)
(citations omitted). The narrative at issue is effectively a police report. See
Fischer, 207 S.W.3d at 851 (“under the facts presented in this case, Martinez’s
narrative is the functional equivalent of a police report or offense report offered for
the truth of the matter asserted”). Such reports are inadmissible. See Belle v. State,
543 S.W.3d 871, 876 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“in
criminal cases, matters observed by police officers and other law enforcement
personnel are excluded” from the public records exception to the hearsay rule);
Baker v. State, 177 S.W.3d 113, 122-23 (Tex. App.—Houston [1st Dist.] 2005, no
pet.) (“[H]ad the State attempted to offer Officer Green’s actual report into
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evidence to prove that the observations contained in it were true, the report would
properly have been excluded as inadmissible hearsay under rule 803(8)(B), given
that Officer Green is a law-enforcement officer and that the report he prepared
contains his observations.”); see also Ramirez v. State, No. 14-06-00538-CR, 2007
WL 2127719, at *8 (Tex. App.—Houston [14th Dist.] July 26, 2007, pet. ref’d)
(mem. op., not designated for publication) (“Even if the police report itself were
admissible, any statements contained in that report would be subject to the hearsay
rule and would have to qualify under an exception to be admissible. In this case,
Chico’s statements to Officer Selvera would be hearsay within the hearsay police
report itself[.]”) (internal citations omitted).
The panel’s decision neither addresses nor even acknowledges the narrative
as hearsay or a police report, thereby ignoring the uniformity of this court’s
decisions concerning the reliability of hearsay and police reports. This presents the
extraordinary circumstance of an intermediate appellate court insisting that
otherwise unreliable evidence is sufficient to subject citizens to prosecution. I
recognize that our recent precedent about cases in this posture leaves the majority
no choice but to come to this conclusion, but because it makes no sense in the
context of our precedent overall, I concur.
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Christopher and Justices Hassan and Poissant
(Poissant, J., majority).
Do Not Publish — Tex. R. App. P. 47.2(b).
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