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Click here for the full text of this decision FACTS:The court decides whether a trial court abuses its discretion when it refuses to allow defense witnesses to testify at a Franks v. Delaware, 438 U.S. 154 (1978), evidentiary hearing after: 1. a defendant has made a substantial preliminary showing of falsity, and 2. the state has been allowed to present testimony in support of the affidavit’s accuracy and the affiant’s veracity. The court of appeals held that the refusal to permit the defense to call witnesses was within the trial court’s discretion. HOLDING:Reversed and remanded. In Franks, the U.S. Supreme Court held that “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” The first prong of Franksprovides that the defendant must allege a deliberate falsehood (or the affiant’s reckless disregard for the truth) and specifically point out that portion of the affidavit alleged to be false. The appellant’s motion to suppress stated: “The affidavit made by Marty Baker on the 18th day of February, 1999, … contained a deliberate falsehood as to the description of the confidential informant who allegedly gave affiant Marty Barker the information used as a basis of the affidavit.” The motion then specifically listed six portions of the affidavit alleged to be deliberately false. Moreover, the appellant’s motion stated that Officer Marty Baker knew that these allegations were false because “it was the Defendant who voluntarily went to the Breckenridge Police Department as a complaining citizen.” By alleging a deliberate falsehood by the affiant and specifically pointing out those portions of the affidavit claimed to be false, as well as identifying the specific reasons why he knows this information is false, the appellant has satisfied the first prong of Franks. Under the second prong, the defendant must accompany his allegations of falsity with an offer of proof, affidavit, or otherwise reliable witness statements, unless their absence is “satisfactorily explained.” Franksitself involved an oral amended motion to suppress “to include an attack on the veracity of the warrant affidavit.” The motion was not supported by affidavit or sworn statements of witnesses, only defense counsel’s assertions as to what the intended witnesses would testify to. These assertions sufficed as “otherwise reliable statements of witnesses.” Similarly, in Ramsey v. State, 579 S.W.2d 920 (Tex. Crim. App. 1979), this court held that a defense counsel’s statements as to what the proposed witness would testify to sufficed for purposes of the second prong of Franks. The appellant’s motion explained in great detail that he was the person who had gone to the police station as a complainant against Donnie Hope, but that he said nothing to the officers about any drugs or white powdery substance. He also set out the following: Defendant and his wife, Willie Cates, know that there was no adult person engaged in a lawful occupation in Breckenridge, Texas, who at any time entered their residence at 903 North Rose Avenue within 72 hours of the making of the said affidavit. If there was no employed adult that came within the residence or on the property, then there could not have been a confidential informant at Defendant’s residence such as is described in the affidavit. This can only be construed as an offer of what appellant and his wife would testify to at a Frankshearing if they were allowed to do so. That is not to say, of course, that the trial judge would necessarily believe them. But if he did, appellant’s testimony would satisfy the third prong of Franks. The third prong requires the defendant to prove that if the deliberately false portions of the affidavit were excised, the “four corners” of the remainder of the affidavit no longer showed probable cause to search the particular location. In this case, if there were no confidential informant, or if no confidential informant had been in the Cates’ home within the 72 hours before the affidavit was prepared, then there was no probable cause to support the affidavit. Here, that affidavit was supported only by the statements of the confidential informant. Therefore, guided by the similarities in this case to both Franksand Ramsey, the court concludes that appellant has met all three prongs of Franksand made a substantial preliminary showing of falsity. The court holds that the appellant was entitled to an evidentiary hearing in which to offer proof of his Frankschallenge. The court does not today decide whether a Franksevidentiary hearing must always be conducted with live witnesses because, in this case, the trial judge did not allow appellant the opportunity to offer evidence to prove his Franks claim in any of the ways set out in Texas Code of Criminal Procedure Article 28.01 �1(6). By denying the defendant the opportunity to present testimony or any other evidence to prove his specific allegations of falsity, the trial court denied the appellant his right to a full Frankshearing. OPINION:Cochran, J.; Meyers, Price, Womack, Johnson, Hervey and Holcomb, JJ., join. Keller, P.J., and Keasler, J. concur in the result.

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