Clay, Sara Kathrine
2013 Tex. Crim. App. LEXIS 163
| Tex. Crim. App. | 2013Background
- Appellant was arrested for misdemeanor driving while intoxicated after a traffic stop for speeding.
- Officer Ortega obtained a blood-draw warrant and sworn it over the telephone to Judge Harris because the breath test was refused.
- Judge Harris, familiar with Ortega, signed the jurat after receiving the faxed affidavit and the warrant was executed.
- Appellant moved to suppress the blood-draw evidence, arguing the warrant affidavit was not properly sworn in the magistrate's presence as required by Article 18.01.
- The court of appeals held that telephonic oath did not invalidate the warrant and affirmed the conviction.
- This Court granted discretionary review to resolve whether telephonic swearing satisfies the “sworn affidavit” requirement under Article 18.01(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether telephonic oath satisfies Article 18.01(b) | Clay argues telephonic oath fails the 'sworn' requirement. | State argues Smith allows telephonic solemnization when properly memorialized. | Yes; telephonic oath satisfied the sworn requirement under this record. |
| Whether Article 18.01(b) permits telephonic oath under current law | Statute requires a written affidavit with oaths; telephonic oath not addressed. | Statute is flexible to permit telephonic solemnization; tradition of oath legality supports telephonic method. | Article 18.01(b) permits telephonic oath under these circumstances. |
| Impact of absence of corporal presence of magistrate | Corporal presence is essential to solemnize the oath. | Flexibility allowed; oath must be memorialized; telephone is acceptable if solemizing function preserved. | Not required to be face-to-face; telephonic oath valid when solemnizing function preserved. |
Key Cases Cited
- Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. 2006) (Sworn affidavit need not be signed if affiant personally swore before magistrate)
- Coit v. State, 808 S.W.2d 473 (Tex. Crim. App. 1991) (affidavit must be sworn before officer authorized to administer oath)
- White v. State, 842 So. 2d 565 (Miss. 2003) (good-faith telephonic warrants considered when statutory language allows)
- Gentry v. State, 640 S.W.2d 899 (Tex. Crim. App. 1982) (broad interpretation of warrant items and probable cause within Article 18.02(10))
- Smith, 207 S.W.3d at 791, Smith (Tex. Crim. App. 2006) (discussion of oath memorialization and flexibility in modern communications)