Hyland, Richard

• Court: Court of Criminal Appeals of Texas
• Decided: June 5, 2019
• Docket: PD-0438-18
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0438-18

RICHARD HYLAND, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS NUECES COUNTY

H ERVEY, J., filed a concurring opinion in which R ICHARDSON, W ALKER, and S LAUGHTER, JJ., joined.

CONCURRING OPINION

I agree with the majority’s conclusion that neither federal law nor state law

currently calls for applying a heightened probable-cause standard after sustaining a

Franks motion. Franks v. Delaware, 438 U.S. 154, 155–56 (1978). But I think that

Professor LaFave might be on to something in advocating that reviewing courts should

err on the side of caution when assessing an affidavit that contained falsified statements

that were intentionally or knowingly included. Hyland–2

I also write separately to address Officer Harrison’s incorrect use of a preprinted,

boilerplate search-warrant affidavit. Such documents are undoubtedly helpful, especially

when dealing with unfortunately common crimes like DWI, and promote efficiency when

used properly, but that was not the case here. In failing to cross out inapplicable

paragraphs with a few strokes of a pen, litigation has ensued that has reached all the way

to this Court, the court of last resort for criminal matters in Texas. A preprinted form that

was supposed to make the process easier has instead drawn it out, depleting limited

governmental resources. This case underscores the need for training.1 Although the false

statements in this affidavit were not fatal to a probable-cause finding, that might not be

true in other cases. Society loses when it expends resources obtaining a criminal

conviction that is later overturned because legal procedures were not properly followed

due to lack of training.

With these comments, I join the majority.

Filed: June 5, 2019

Publish

1 Harrison testified that he intentionally did not cross out the paragraphs, although not in bad faith. According to him, “it’s just a standard form. I’ve never been instructed to take it out. I’ve never taken them off.”