Texas Case Law

SMITH v. STATE, PD-1814-05 (Tex.Cr.App. 11-22-2006) FREDDIE
JAMES SMITH, Appellant v. STATE OF TEXAS. No. PD-1814-05
Court of Criminal Appeals of Texas. Delivered: November 22,

On Appellant’s Petition for Discretionary Review, from the
Fourteenth Court of Appeals, Harris County.

COCHRAN, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined. KELLER, P.J., dissented.



In this case of first impression, we address whether a
search warrant is defective if the affiant swore before the
magistrate that the facts within the affidavit were true,
but he failed to sign the affidavit.[fn1]

Police officers obtained a search warrant as a part of
their investigation of appellant for identity theft and
fraud. Although the affiant swore before the magistrate to
the truth of the facts within the affidavit, he forgot to
sign it. Not noticing that omission, the magistrate signed
the search warrant, and the officers executed it. While
searching appellant’s house, the officers found two
shotguns and he was charged with possession of a firearm by
a felon. Because the officer failed to sign his affidavit,
appellant sought to suppress the evidence obtained during
the search. The trial court denied the motion to suppress,
appellant pleaded guilty to possession of a firearm by a
felon, and he was sentenced to 10 years’ imprisonment. The
court of appeals held that an affidavit need not be signed
to be properly sworn.[fn2] We agree and hold that the
failure to sign a search warrant affidavit does not, by
itself, invalidate the warrant if other evidence proves
that the affiant personally swore to the truth of the facts
in the affidavit before the issuing magistrate.


In December of 2002, Lisa Stark contacted Officer Thomas
Griffin of the Houston Police Department to report an
identity theft. Ms. Stark had received a call from Citibank
informing her that someone had opened a Visa account in her
name at Gordon Jewelry and had tried to open an account at
Zales. She had also received a letter from the U.S. Postal
Service (USPS) confirming her change of address to 6210Ë?
Rand Street, but she had not submitted any such request. In
June of 2003, Ms. Stark received a call from American
Express informing her that her account was past due in the
amount of $10,000. Ms. Stark told American Express that she
did not open the account and knew nothing about the
charges. American Express told Ms. Stark that it sent the
credit card to 6210Ë? Rand Street.

Officer Griffin, who had eleven years’ experience in the
forgery division, then contacted a U.S. Postal Inspector,
who told the officer that two additional change-of-address
forms had been sent to the USPS changing an address to
6210Ë? Rand Street. Officer Griffin also contacted the mail
carrier assigned to 6210Ë? Rand Street, who said that he had
been delivering mail to Ms. Stark at that address.

Officer Griffin drafted and presented his Affidavit in
Support of a Search Warrant to District Judge William
Harmon. The affidavit set out all the facts pertaining to
Officer Griffin’s investigation of the identify theft of
Ms. Stark. Officer Griffin swore to the facts in the
affidavit and requested Judge Harmon to authorize a search
of the residence at 6210Ë? Rand Street. Judge Harmon signed
and issued the search warrant, and the police searched
appellant’s home and found two shotguns.

Appellant filed a motion to suppress evidence, and the
trial court held a hearing without live testimony. Both
Officer Griffin and Judge Harmon submitted affidavits. In
his affidavit, Officer Griffin stated that he personally
swore before Judge Harmon to the truth of the facts set out
in the affidavit and explained that his failure to sign the
probable cause affidavit was a mistake. Judge Harmon, in
his affidavit, stated that he did not specifically remember
the incident in which Officer Griffin requested the search
warrant, but he said that it is his “standard practice” to
have the police officer swear that “the affidavit [is] true
and correct to the best of his or her knowledge.” Judge
Harmon stated that he had no reason to doubt that he
followed his standard practice in this case.

After the trial court denied the motion to suppress,
appellant pleaded guilty and appealed the pretrial ruling.
The court of appeals affirmed the trial court’s ruling,
holding that, when Officer Griffin swore before Judge
Harmon, the affidavit was “solemnized.”[fn3]

In support of its holding, the court relied on Selph v.
State[fn4] and Vance v. State.[fn5] The court of appeals
concluded that, because the warrant, signed by Judge
Harmon, stated that Officer Griffin swore to the truth of
the facts contained in the affidavit and the warrant and
affidavit were stapled together, the two documents could be
read as one.[fn6] Thus, under Selph, the affidavit was
properly sworn.[fn7] The court of appeals also relied on
Vance in holding that it is the oath of the affiant that
solemnizes the affidavit-not the signature.[fn8] Because
Officer Griffin swore to the truth of the affidavit, he
took an oath and solemnized the affidavit. Therefore, the
court found the affidavit sufficient for the issuance of
the search warrant.[fn9]


The Code of Criminal Procedure makes it clear that an
affiant must swear that he has knowledge of the facts
within his written affidavit and that those facts establish
probable cause.[fn10] Article 18.01(b) reads:

No search warrant shall issue for any purpose in this
state unless sufficient facts are first presented to
satisfy the issuing magistrate that probable cause does in
fact exist for its issuance. A sworn affidavit setting
forth substantial facts establishing probable cause shall
be filed in every instance in which a search warrant is

Similarly, the United States Constitution states that “no
Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be
seized.”[fn12] Neither document, however, specifically
requires a signature; they require only an oath.

The purpose of this oath is to call upon the affiant’s
sense of moral duty to tell the truth and to instill in him
a sense of seriousness and responsibility.[fn13] When an
individual swears under oath, society’s expectation of
truthfulness increases and the legal consequences for
untruthfulness-prosecution for perjury, for example-may be
severe. The purpose of the written affidavit is to
memorialize the affiant’s recitation of the facts,
conclusions, and legal basis for the issuance of the search
warrant.[fn14] Without a written affidavit, citizens and
courts would not be able to determine if the search warrant
had been properly issued unless the affiant physically
appeared before the trial judge after the search to recount
the factual basis for requesting the search warrant.[fn15]
By then, the affiant may have relocated or for some other
reason become unavailable. Even if the affiant were still
available, his memory of both the specific facts and his
conclusions may have faded. The purpose of the affiant’s
signature, however, is different. It memorializes the fact
that he took the oath; it is not an oath itself.

This court has never addressed the question of whether an
affidavit under article 18.01(b) requires the affiant’s
signature in addition to an oath.[fn16] Two Texas appellate
courts have addressed this issue. In Hunter v. State,[fn17]
the Waco Court of Appeals held that a signature was
necessary to constitute a “sworn affidavit” under article
18.01(b). The court relied on the common usage of the word
“affidavit” and indicated that it usually requires a
signature.[fn18] But the San Antonio Court of Appeals in
Vance held the opposite — that the lack of a
signature would not invalidate the affidavit if it could be
shown that the affidavit was solemnized by other
means.[fn19] Courts in other states have also addressed
this issue.[fn20] We agree with Vance and the majority of
the out-of-state courts and hold that the failure to sign
the warrant affidavit does not invalidate the warrant if
other evidence proves that the affiant personally swore to
the truth of the facts in the affidavit before the issuing

The present situation might usefully be compared to that
of self-proved wills. A will may be made self-proved by
the affidavits of the testator and his attesting witnesses,
as long as the affidavits are signed and certified in
accordance with the specific statutory requirements.[fn21]
A self-proved will may be admitted to probate court without
the need for testimony of a subscribing witness,[fn22] but
a will is not invalid simply because it does not contain
the statutory affidavits. It merely does not qualify as a
self-proved will, and the proponent of the will must call
one or more of the attesting witnesses to testify.[fn23]

Although the affiant’s signature on an affidavit serves as
an important memorialization of the officer’s act of
swearing before the magistrate, it is that act of swearing,
not the signature itself, that is essential. It is
important, too, that the law retain some flexibility in the
face of technological advances. For example, the federal
courts and some state courts, now permit telephonic search
warrants,[fn24] and one can foresee the day in which search
warrants might be obtained via e-mail or a recorded video
conference with a magistrate located many miles away. In a
state as large as Texas,[fn25] such innovations should not
be foreclosed by the requirement of a signed affidavit if
the officer’s oath can be memorialized by other, equally
satisfactory, means. We leave those potential future changes
to the Texas Legislature, but we should not stand in the
way of the future by declaring that all affidavits, which
are properly sworn to but unsigned, are necessarily
invalid. That is not to condone carelessness or sloppiness
in either police procedure or judicial oversight.
Forgetfulness or carelessness in the formalities of an
affidavit may well indicate to either the issuing magistrate
or the reviewing court that the officer is forgetful or
careless in his factual statements as well. Such
forgetfulness may affect the credibility of the officer,
but that is a matter for magistrates and trial courts. It
is sufficient for today to simply conclude that an
affiant’s failure to sign his affidavit is not necessarily
fatal if it can be proved by other means that he did swear
to the facts contained within that affidavit before the


Turning to the present case, three pieces of evidence
prove that Officer Griffin did personally swear, before
Judge Harmon, to the truth of the facts in his affidavit.
First, Officer Griffin submitted a signed affidavit at the
suppression hearing stating that he did swear before Judge
Harmon that the facts in the affidavit were “true and
correct to the best of his knowledge.” Second, Judge Harmon
submitted a signed affidavit stating that, while he does
not remember this specific instance, it is his “standard
practice” to have affiants swear to the truthfulness of
their affidavits. Third, the warrant to which Officer
Griffin’s unsigned affidavit was attached, stated that the
affiant swore before the magistrate. This warrant is signed
by Judge Harmon. Therefore, we conclude that there is ample
evidence showing that Officer Griffin’s affidavit was sworn
to under oath and that the affidavit and search warrant are
valid under article 18.01(b).

The appellant argues that upholding the validity of an
affidavit when the affiant’s signature is missing from the
jurat violates the “Four Corners Rule” because courts must
look to evidence outside of the four corners of the
affidavit to determine whether the affiant swore to its
truth.[fn26] The “four corners” doctrine states that a
court is to determine whether the magistrate had sufficient
facts to establish probable cause to issue a search warrant
based upon the “four corners” of the affidavit.[fn27] The
four corners rule applies only to the assessment of
probable cause; it does not apply to the issue of whether
the affiant swore to the affidavit’s truthfulness. The
“four corners” rule, then, is not applicable in this case.

The appellant also argues that an affidavit is, as a matter
of law, not an “affidavit” unless it is signed by the
affiant. But as discussed above, there is no statutory
requirement that an affidavit be signed. Article 18.01(b)
requires an oath, not a signature.

Finally, appellant argues that the “good faith” exception
to the exclusionary rule set out in article 38.23(b)[fn28]
does not apply to the formal portions of an affidavit, such
as the affiant’s signature. In the court of appeals,
Justice Edelman wrote a short concurrence in this case. He
concluded that appellant’s challenge to the validity of the
unsigned affidavit was “moot,” as the Texas statutory “good
faith” exception would uphold the action of the officers
because they “were acting in objective good faith reliance
on the warrant.”[fn29] We need not address the
applicability of the “good faith” exception in this case
because we have concluded that the warrant was valid
despite the fact that Officer Griffin failed to sign the

We therefore affirm the judgment of the court of appeals.

[fn1] We granted review on one ground:

The trial court abused its discretion in denying the
Appellant’s Motion to Suppress evidence, where the search
warrant was unsigned, and where the good faith exception
does not apply.

[fn2] Smith v. State, No. 14-04-00328-CR, 2005 Tex. App.
LEXIS 7621 (Tex.App.-Houston [14th Dist.] Sept. 13, 2005)
(not designated for publication).

[fn3] Smith, 2005 Tex. App. LEXIS 7621, at *4-5.

[fn4] Selph v. State, No. 14-03-01112-CR, 2005 Tex. App.
LEXIS 2854 (Tex.App.-Houston [14th Dist.] April 14, 2005,
no pet.) (not designated for publication). In Selph, the
affiant did not sign the affidavit. Id. at *8. In the
warrant, the magistrate stated that the officer swore
before him that the facts in the affidavit were true. Id.
at *9. The court in Selph held that when the magistrate
states in the warrant that the affiant swore to his
statement, the affidavit may be incorporated by reference
into the warrant when the two are stapled together. Id.

[fn5] Vance v. State, 759 S.W.2d 498 (Tex.App.-San Antonio
1998, pet. ref’d). In Vance, the facts were the same as
they are here: the police officer swore before the
magistrate but forgot to sign the affidavit; the judge
issued the warrant; and the search yielded the evidence
that resulted in the defendant’s conviction. Id. at
499-500. The Vance court held, “It is the oath of the
affiant that solemnizes his affidavit” — not his
signature. Id. at 500. The court concluded that if the jurat
is defective, the fact that the affidavit was properly
sworn to may be shown by other evidence. Id.

[fn6] Smith, 2005 Tex. App. LEXIS 7621, at *4-5.

[fn7] Id.

[fn8] Id. at *4.

[fn9] Id. at *5.

[fn10] TEX. CODE CRIM. PROC. art. 18.01(b).

[fn11] Id. (emphasis added).

[fn12] U.S. CONST. amend. IV.

[fn13] See United States v. Turner, 558 F.2d 46, 50 (2nd
Cir. 1977) (“An `Oath or affirmation’ is a formal assertion
of, or attestation to, the truth of what has been, or is to
be, said. It is designed to ensure that the truth will be
told by insuring that the witness or affiant will be
impressed with the solemnity and importance of his words.
The theory is that those who have been impressed with the
moral, religious or legal significance of formally
undertaking to tell the truth are more likely to do so than
those who have not made such an undertaking or been so
impressed.”); United States ex rel. Pugh v. Pate, 401 F.2d
6, 7 (7th Cir. 1968) (stating that the oath requirement
forces someone to take ultimate responsibility for the
facts alleged in the affidavit); State v. Tye, 636 N.W.2d
473, 478 (Wis. 2001) (“An oath is a matter of substance,
not form, and it is an essential component of the Fourth
Amendment and legal proceedings. The purpose of an oath or
affirmation is to impress upon the swearing individual an
appropriate sense of obligation to tell the truth. An oath
or affirmation to support a search warrant reminds both the
investigator seeking the search warrant and the magistrate
issuing it of the importance and solemnity of the process
involved. An oath or affirmation protects the target of the
search from impermissible state action by creating
liability for perjury or false swearing for those who abuse
the warrant process by giving false or fraudulent
information.”) (footnotes omitted).

[fn14] See Boyer v. Arizona, 455 F.2d 804, 807 (9th Cir.
1972) (Ely, J., dissenting) (arguing that the court needs to
have as much written documentation relating to the issuance
of the search warrant as possible; “The problem inherent in
relying upon belated oral testimony to find that the
existence of probable cause was demonstrated at an earlier
hearing is obvious. Memories are blurred by the passage of
time and by the wisdom gained through hindsight. Critical
facts may be forgotten, and the possible initial
uncertainly of the affiant may vanish when the search
proves to be fruitful. Inadvertent additions to the
remembered conversation are not unlikely.”).

[fn15] Id.

[fn16] In Gordon v. State, 29 Tex. Ct. App. 410, 412, 16
S.W. 337, 338 (1891), two attorneys submitted an affidavit
to the court but it lacked their signatures, a jurat
certifying that an oath was administered, or anything “to
indicate that they were sworn to its contents.” The court
of appeals, relying on a statute that expressly required
the signature of an affiant, held that the affidavit was
deficient and thus invalid. The statute upon which the
court relied has since been repealed.

[fn17] 92 S.W.3d 596 (Tex.App.-Waco 2002, pet. ref’d).

[fn18] Id. at 601-02. In Hunter, the court of appeals noted
that article 18.01 does not define the word “affidavit,” and
thus it looked to its common usage. Id. at 601. The court
consulted the definition of affidavit in BLACK’S LAW
DICTIONARY: “An `affidavit’ is `[a] voluntary declaration
of facts written down and sworn to by the declarant before
an officer authorized to administer oaths.'” Id. at 602.
That definition does not expressly require a signature. The
provides a similar definition and adds that “`[a]n
affidavit must sufficiently identify the person who makes
it, usually by his subscribed signature.'” Id. That
definition does not necessarily require a signature, though
it is the “usual” mode. The court then looked at TEX. GOV’T
CODE § 312.011(1), which pertains to the
construction of civil statutes. Id. That provision states
that, “unless a different meaning is apparent from the
context of the statute in which the word appears[,]” an
“`[a]ffidavit’ means a statement 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 by the officer under his seal of office.” This is
indeed the usual definition in Texas of an affidavit. But
that definition does not mean that every “affidavit” that
is properly sworn to, yet unsigned, is necessarily invalid
or “void.” In Hunter, the court of appeals concluded that
the unsigned affidavit did not meet all of the requirements
of the civil Government Code statute and hence it did not
meet the “sworn affidavit” requirement of article 18.01(b).
Id. Nonetheless, the court of appeals upheld the search
pursuant to the defective warrant under the good faith
exception to the warrant requirement under article
38.23(b). Id. at 604.

[fn19] Vance, 759 S.W.2d at 499.

[fn20] Several states have held that a signature on the
affidavit is not essential to prove the validity of that
affidavit. See State v. Colon, 644 A.2d 877, 883 (Conn.
1994) (“`the jurat is simply evidence of the fact that the
affidavit was duly sworn to by the affiant, and, in the
event of its omission, the fact that the affidavit was
properly sworn to may be proven by other evidence'”)
(quoting White v. State, 702 P.2d 1058, 1061
(Okla.Crim.App. 1985)); Bigler v. State, 602 N.E.2d 509,
516-517 (Ind.App. 1992) (“The jurat is not a part of the
affidavit, but simply evidence that an oath was taken. . .
. [O]mission of a jurat is not fatal to the validity of an
affidavit so long as it appears either from the instrument
itself or from evidence aliunde, that the affidavit was, in
fact, duly sworn to before an authorized officer.”); State
v. Journey, 562 P.2d. 138, 141 (Kan.Ct.App. 1977) (same);
People v. Tice, 558 N.W.2d 245, 247 (Mich.Ct.App. 1996)
(same); Powell v. State, 355 So.2d 1378, 1380 (Miss. 1978)
(applying rule to magistrate’s missing signature); People
v. Zimmer, 112 A.D.2d 500, 501 (N.Y.App. Div. 1985) (rule
applied to affiant); State v. Flynn, 235 S.E.2d 424, 425
(N.C.App. 1977) (magistrate); State v. Nunn, 783 P.2d 26,
27 (Ore.Ct.App. 1989) (magistrate); State v. Keith, 978
S.W.2d 861, 868 (Tenn. 1998) (affiant); Huff v.
Commonwealth, 194 S.E.2d 690, 692 (Va. 1973) (affiant);
State v. Davis, 388 S.E.2d 508, 512 (W.Va. 1989) (affiant).
A few states have held that a signature is required; in
these cases, though, either a statutory provision or the
state constitution required the signature. See Commonwealth
v. Dozier, 366 N.E.2d 1270 (Mass.App.Ct. 1977) (holding
that an unsigned affidavit did not meet statutory
requirement); Commonwealth v. McAfee, 326 A.2d 522
(Pa.Super.Ct. 1974) (holding that an unsigned affidavit did
not meet the state constitutional requirement to constitute
a valid affidavit).

[fn21] See TEX. PROB. CODE § 59(a).

[fn22] See id. § 59(b).

[fn23] See Cutler v. Ament, 726 S.W.2d 605, 607-08
(Tex.App.-Houston [14th Dist.] 1987, writ ref’d n.r.e.).

[fn24] Telephonic warrants are permitted under the Federal
Rules of Criminal Procedure. FED. R. CRIM. P. 41(d)(3). In
these instances, the officer requesting the search warrant
does not sign an affidavit but swears to the truth of his
statements. Fed.R.Crim.P. 41(d)(3)(B)(i). Several states
also allow telephonic warrants, including Alaska, Arizona,
California, Colorado, Delaware, Idaho, Illinois, Minnesota,
Nebraska, and South Dakota. See Justin H. Smith, Note,
Press One for Warrant: Reinventing the Fourth Amendment’s
Search Warrant Requirement Through Electronic Procedures,
55 VAND. L. REV. 1591, 1607-1613 (2002). Further, “advances
in digital imaging, remote video transmission, cellular
communication, and encryption technology should further
enhance the reliability and desirability of telephonic
search warrants.” Id. at 1595.

[fn25] For example, in some rural areas of Texas there may
be, on occasion, a single magistrate available within
several counties. Requiring the affiant to spend the time
traveling from the site subject to a legitimate search to
the magistrate, physically standing in front of him,
signing the affidavit, personally obtaining the signature
of the magistrate on the warrant, and then traveling back
to the search site to execute that warrant may well be a
practical deterrent to officers. This is especially true
when officers are engaged in the investigation of rapidly
unfolding events and have a legitimate need to act quickly
to prevent further crime and preserve evidence. See
generally, Geoffrey P. Alpert, Telecommunications in the
Courtroom: Telephonic Search Warrants, 38 U. Miami L. Rev.
625, 634 (1984) (noting that states such as Arizona and
California were the first to enact legislation for
telephonic search warrants because they have “wide open
spaces and great distances between cities and judges”).

The United States and Texas Constitutions have a definite
preference for searches under warrant, but if the cost, in
terms of time, effort, and the likelihood of escape, are
too great, officers (and judicial officers after them) may
well seek opportunities to avoid the warrant requirement
and, instead, act without a warrant and hope that there is
an exception to the warrant requirement that will, post
hoc, justify their conduct. See generally Ornelas v. United
States, 517 U.S. 690, 699 (1996) (“The Fourth Amendment
demonstrates a `strong preference for searches conducted
pursuant to a warrant,’and the police are more likely to
use the warrant process if the scrutiny applied to a
magistrate’s probable-cause determination to issue a warrant
is less than that for warrantless searches. Were we to
eliminate this distinction, we would eliminate the
incentive.”) (citation omitted); Illinois v. Gates, 462
U.S. 213, 236 (1983) (“If the affidavits submitted by
police officers are subjected to the type of scrutiny some
courts have deemed appropriate, police might well resort to
warrantless searches, with the hope of relying on consent
or some other exception to the Warrant Clause that might
develop at the time of the search. . . . Reflecting this
preference for the warrant process, the traditional standard
for review of an issuing magistrate’s probable-cause
determination has been that so long as the magistrate had a
`substantial basis for . . . [concluding]’ that a search
would uncover evidence of wrongdoing, the Fourth Amendment
requires no more.”); Trupiano v. United States, 334 U.S.
699, 705 (1948) (“It is a cardinal rule that, in seizing
goods and articles, law enforcement agents must secure and
use search warrants wherever reasonably practicable. This
rule rests upon the desirability of having magistrates
rather than police officers determine when searches and
seizures are permissible. . . . In their understandable
zeal to ferret out crime and in the excitement of the
capture of a suspected person, officers are less likely to
possess the detachment and neutrality with which the
constitutional rights of the suspect must be viewed.”)
(internal citations omitted); Swearingen v. State, 143
S.W.3d 808, 810 (Tex.Crim.App. 2004) (following Supreme
Court precedent and stating that this Court has a “strong
preference” for search warrants).

[fn26] Appellant’s Brief at 14.

[fn27] Hankins v. State, 132 S.W.3d 380, 388-89
(Tex.Crim.App. 2004) (holding that there were insufficient
facts within the “four corners” of the affidavit to
establish probable cause); see also State v. Colon, 644
A.2d 877, 882-883 (Conn. 1994) (rejecting defendant’s claim
that “the four corners rule” that applies to the
determination of probable cause in a search warrant also
applies to the signing of the jurat; magistrate’s failure
to sign the warrant jurat did not invalidate the warrant;
concluding that “although it is preferable that every
affidavit contain a completed jurat, the omission of, or a
defect in, the jurat does not affect the validity of a
warrant issued upon probable cause when it is proven by
extrinsic evidence that the supporting affidavit was
properly sworn to by the complainants. Any other conclusion
would impose an undue penalty on law enforcement for an
inadvertent omission on the part of the issuing
magistrate.”) (internal citation omitted).

[fn28] TEX. CODE CRIM. PROC. art. 38.23(b) reads:

It is an exception [to the exclusionary rule] that the
evidence was obtained by a law enforcement officer acting
in objective good faith reliance upon a warrant issued by
a neutral magistrate based on probable cause.

[fn29] Smith, 2005 Tex. App. LEXIS 7621, at *10-11
(Edelman, J., concurring).