
    Sara Katherine CLAY, Appellant, v. The STATE of Texas, Appellee.
    No. 10-09-00355-CR.
    Court of Appeals of Texas, Waco.
    March 21, 2012.
    Discretionary Review Granted June 27, 2012.
    Jerry L. Wood, Ft. Worth, TX, for Appellant.
    Mark Pratt, County Attorney for Hill County, Hillsboro, TX, for Appellee.
    Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS.
   OPINION

TOM GRAY, Chief Justice.

This case presents an extraordinarily important issue of first impression to this Court and an issue not yet decided by the Court of Criminal Appeals. The issue is whether an affidavit filed in support of a search warrant must be upon an oath administered by a person authorized to take an oath in a face-to-face meeting with the affiant. The particular context in which the issue is presented in this case is whether an oath administered by a judge over the telephone to the affiant is properly used to obtain a search warrant when the affiant, after making the oath, signs the affidavit and faxes it to the judge who then, based on the facts sworn to in the affidavit, issues a warrant to seize blood from a driver who is suspected of driving while intoxicated. The only other court in the state to squarely address this issue did so in an unpublished opinion and determined an oath administered without being face-to face with the affiant will not support the affidavit and therefore seizure of evidence under the warrant thus obtained must be suppressed, absent some exception to the warrant requirement. See Aylor v. State, No. 12-09-00460-CR, 2011 Tex.App. LEXIS 3274 (Tex.App.-Tyler April 29, 2011, pet. ref'd). We disagree with the holding in Aylor and hold that an oath for an affidavit may be administered over the telephone and will support a search warrant and the related seizure of evidence.

Sara Katherine Clay was charged with the offense of driving while intoxicated. Tex. Penal Code Ann. § 49.04(b) (West Supp. 2011). After the trial court denied her motion to suppress, Clay pled guilty and the trial court sentenced her to three days in jail with a fine of $1,500. Clay appeals. Because the trial court did not err in denying Clay’s motion to suppress, the trial court’s judgment is affirmed.

In two issues, Clay asserts that the trial court erred in denying her motion to suppress because the officer who submitted the affidavit in support of the search warrant to take a blood specimen from Clay did not personally appear in a face-to-face meeting with the magistrate to swear to the truthfulness of the facts in the affidavit; and thus, her argument continues, the affidavit was invalid. We will discuss her two issues together.

BACKGROUND

In lieu of a hearing on the motion to suppress, the parties submitted stipulated facts and briefs in support of and in response to Clay’s motion to suppress. According to the stipulated facts, Clay was stopped for speeding by Department of Public Safety Trooper J. Ortega. After administering field sobriety tests and making other observations, Ortega believed he had probable cause to arrest, and did arrest, Clay for driving while intoxication. Clay refused to take a breath test. Ortega then filled out an Affidavit for Search Warrant to take a blood specimen from Clay. Ortega called Hill County Court at Law Judge A. Lee Harris and spoke to him by telephone. Ortega and Judge Harris each recognized the other’s voice. During the phone conversation, Ortega swore to and signed the Affidavit for Search Warrant. He did not sign the affidavit in the physical presence of Judge Harris. Ortega faxed the signed affidavit to Judge Harris who then also signed the affidavit and also signed a Search Warrant for Blood and an Order for Assistance in Execution of Search Warrant. Judge Harris faxed the order back to Ortega. Clay’s blood was then drawn.

Standard of Review

A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App.2010). We review the record in the light most favorable to the trial court’s conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006). We sustain the lower court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id. Further, we give almost total deference to a trial court’s express or implied determination of historical facts and review de novo the court’s application of the law of search and seizure to those facts. Id.

Article 18.01

Clay asserts that Texas law currently requires an affiant of a search warrant affidavit to personally appear in a face-to-face meeting with the individual administering the oath in order for the affidavit to be valid. We disagree with Clay’s assertion.

Article 18.02 of the Texas Code of Criminal Procedure authorizes the issuance of a warrant to seize blood. See Tex.Code Crim. Proc. Ann. art. 18.02(10) (West 2005); Gentry v. State, 640 S.W.2d 899, 902 (Tex.Crim.App.1982). A search warrant may not issue, however, “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 requested.” Tex.Code Crim. Proc. ANN. art. 18.01(b) (West Supp. 2011). There is no definition for the word “affidavit” in the Penal Code or in the Code of Criminal Procedure.

Virtually all United States authority for the search for, or seizure of, evidence for use in a criminal proceeding emanates from the interpretation of the Fourth Amendment to the United States Constitution. And the Fourth Amendment to the United State Constitution does not require a face-to-face confrontation between the magistrate and the affiant. U.S. Const, amend. IV. (“... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, ... ”); United States v. Bueno-Vargas, 388 F.3d 1104, 1111 (9th Cir.2004). The moral, religious, and legal significance of the undertaking remains the same whether the oath taker and the witness communicate face-to-face or over the telephone. United States v. Turner, 558 F.2d 46, 50 (2d Cir.1977). Rule 41 of the Federal Rules of Criminal Procedure expressly authorizes obtaining search warrants via telephone. Fed.R.Crim.P. 41. And, in the Federal setting, even if Rule 41 is not followed, only a showing of “intentional and deliberate disregard of a provision in the Rule” or a showing of prejudice requires suppression of evidence. Turner, 558 F.2d at 52.

In Turner, an argument that the search warrant was defective because it did not issue on either an affidavit sworn to in the physical presence of a state judge or oral testimony personally given by the affiant did not require suppression. Id. at 52, 53. Further, as the Second Circuit Court so aptly stated over 30 years ago:

In the one hundred years since Alexander Graham Bell invented the telephone, Long Distance has truly become, in the words of the well-known advertisement, “the next best thing to being there.”

Id. Thus, it is clear from federal precedent interpreting the Fourth Amendment and made applicable to the states through the Fourteenth Amendment that the Fourth Amendment does not contain a face-to-face, or physical presence, requirement between the affiant and the person administering the oath.

We now turn to article 18.01 which Clay contends does have such a requirement. But there appears to be little difference between article 18.01 and the Fourth Amendment warrant requirement of the United States Constitution. The statute, as the Texas legislature is sometimes inclined to do, is simply a codification of the federal warrant requirement, see e.g. Tex. Code Crim. Proo. Ann. art. 1.10 (West 2005) (state statutory version of the constitutional double jeopardy clause) and art. 38.23 (West 2005) (state statutory version of the federal exclusionary rule), and for our purposes here, article 18.01 adds nothing to the constitutional requirement for an oath or affirmation.

Clay relies on an opinion from this Court to support her argument that article 18.01 requires face-to-face communication. See Hunter v. State, 92 S.W.3d 596 (Tex.App.-Waco 2002, pet. ref'd). The question presented in Hunter was whether an unsigned search warrant affidavit made the search warrant invalid. This Court, relying on the definition of “affidavit” in section 312.011(1) of the Texas Government Code, held that the search warrant was invalid because the term “sworn affidavit,” as used in article 18.01(b) of the Code of Criminal Procedure, required a writing signed by the affiant, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office. Id. at 602. Hunter is no longer the law.

The Court of Criminal Appeals effectively overruled Hunter four years after its issuance. See Smith v. State, 207 S.W.3d 787 (Tex.Crim.App.2006). In Smith, the Court of Criminal Appeals was presented with the same issue as in Hunter, that is, whether an unsigned affidavit in support of a search warrant invalidated the search warrant. The Court of Criminal Appeals held it did not if other evidence proved that the affiant personally swore to the truth of the facts in the affidavit before the magistrate who issued the warrant. Id. at 792.

In route to that decision, the Court of Criminal Appeals noted that article 18.01 of the Code of Criminal Procedure makes it clear that an affiant must swear that he has knowledge of the facts set out in the written affidavit and that it is then the neutral magistrate who must then determine that those facts establish probable cause. Smith v. State, 207 S.W.3d 787, 789-790 (Tex.Crim.App.2006). The Court also noted that the United States Constitution simply provides 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.” Id. at 790 (quoting U.S. Const, amend. IV). But, the Court of Criminal Appeals observed, neither the statute nor the Constitution specifically require a signature; they only require an oath. Id. The Court of Criminal Appeals determined that it was the act of swearing, the taking of the oath, that was essential to the validity of the affidavit, not the officer’s signature and that it was important for the law to retain some flexibility in the face of technological advances. Id. at 792. See also United States v. Turner, 558 F.2d 46, 50 (2d Cir. 1977). The Court held that the signature of the affiant was not required. Id.

Clay also relies on two statements made by the Court of Criminal Appeals in Smith as authority for her conclusion that an affiant must be face-to-face with a magistrate when swearing to the facts necessary to establish probable cause. The first is the Court’s statement that a missing signature would not invalidate a search warrant if other evidence proved that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate. The Court did not analyze the issue in the context of a face-to-face meeting between the affiant and the magistrate; thus, this statement is not a holding that the affiant need be in the physical presence of the magistrate when swearing to the truth of the affidavit.

The second statement relied upon by Clay is a comment by the Court that, while recognizing innovations such as telephonic search warrants should not be foreclosed by the requirement of a signed affidavit, “[w]e leave those potential future changes to the Texas Legislature....” Smith v. State, 207 S.W.3d 787, 793 (Tex.Crim.App.2006). This statement, Clay believes, is an acknowledgment that a procedure to obtain warrants by telephone and facsimile has not been authorized by statute, does not exist under Texas law, and therefore cannot be a valid practice in Texas at the present time. We believe it is not such an acknowledgement and certainly is not such a prohibition. As the Court stated, it is important for the law to retain some flexibility in the face of technological advances. Id. at 792. Had there been no flexibility in the statute, the Smith Court would have been compelled to hold that a signed affidavit was required. It did not. And thus, the statute is also flexible so as to allow for the taking of an oath over the telephone or by some other electronic means of communication under certain circumstances. That is the nature of the development of the common law. We must decide only the issue presented — in this case, is the affidavit invalid because it was not made on an oath administered face-to-face.

In her analysis of Smith, Clay neglects to include the last part of the sentence by the Court of Criminal Appeals which we believe is quite important. After stating, “[w]e leave those potential future changes to the Texas Legislature ...the Court continued, “... 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.” Smith v. State, 207 S.W.3d 787, 793 (Tex.Crim.App.2006).

Likewise, we should not stand in the way of the future by declaring that all affidavits for search warrants sworn to over the telephone are necessarily invalid. We are not today deciding what the outer boundaries of such remote methods of making oaths are acceptable as the legislature may do. Rather, we are only deciding if the procedure utilized is prohibited by the existing statute and hold that, under the facts of this case, it is not. We do not here define what procedural safeguards may be necessary if the officer and person administering the oath do not otherwise know each other and thus may not recognize each other’s voice over the telephone.

Although the Government Code defines an affidavit as a writing signed by the maker and sworn to before an officer authorized to administer oaths, Tex. Gov’t Code Ann. § 312.011(1) (West 2005), we agree with the Smith opinion that it is the act of swearing, the taking of the oath, that is essential to the validity of the affidavit. The purpose of the 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.” Smith v. State, 207 S.W.3d 787, 790 (Tex.Crim. App.2006). The affidavit in this case provides, “The undersigned Affiant, being a peace officer under the laws of Texas and being duly sworn, on oath makes the following statement and accusations[.]” It is signed by Ortega as the affiant and includes a signed jurat stating that it was subscribed and sworn to before the magistrate. In this instance, the personal familiarity of the trooper and the judge with each other’s voice provides very strong indicia of truthfulness, trustworthiness, and reliability so as to call upon Trooper Ortega’s “sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility.” Id.

Therefore, under the facts of this case, a face-to-face meeting between the trooper and the judge was not required and the making of the oath over the telephone did not invalidate the search warrant. Accordingly, the trial court did not err in denying Clay’s motion to suppress.

Conclusion

Clay’s two issues are overruled, and the trial court’s judgment is affirmed.

Justice DAVIS concurring.

REX D. DAVIS, Justice,

concurring.

It is not for us, as an intermediate appellate court, to forge the public policy of this State, especially on the important issue of legalizing telephonic oaths for search warrants under Texas law. Ginsburg v. Chernoff/Silver & Assocs., Inc., 137 S.W.3d 231, 237 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (citing Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002)); Kline v. O’Quinn, 874 S.W.2d 776, 784 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Thus, while I share the majority’s concern about technology outpacing the law, I believe that the issue of telephonic oaths is a policy matter that belongs to the Legislature (or to the Court of Criminal Appeals), not this court. For this reason, I cannot join the majority opinion.

As noted in the majority opinion, the Tyler Court of Appeals recently addressed Clay’s issues in Aylor v. State, No. 12-09-00460-CR, 2011 WL 1659887 (Tex.App.-Tyler Apr. 29, 2011, pet. ref'd) (mem. op., not designated for publication). The Aylor court noted that, albeit in dicta, the Court of Criminal Appeals has implied that purely telephonic oaths are not permissible under Texas law. In Smith v. State, 207 S.W.3d 787, 792-93 (Tex.Crim.App.2006), the Court of Criminal Appeals stated:

Although the affiant’s signature on an affidavit serves as an important memori-alization 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, and one can foresee the day in which search warrants might be obtained via email or a recorded video conference with a magistrate located many miles away. In a state as large as Texas, 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 ....

Id. (emphasis added). The Aylor court also recognized that in the civil context, an affiant must swear to an affidavit in the physical presence of the officer administering the oath and that an oath taken solely by telephone is insufficient. See Tex. Gov’t Code Ann. § 312.011(1) (West 2005); Sullivan v. First Nat’l Bank, 37 Tex.Civ.App. 228, 229-31, 83 S.W. 421, 422-23 (1904); see also DDH Aviation LLC v. Hubner, No. 05-04-01319, 2005 WL 2659936, at *1 (Tex.App.-Dallas Oct. 19, 2005, no pet.) (mem. op.).

The Aylor court thus concluded that the current state of Texas law is that a physical, personal appearance is necessary, either before the magistrate, or before someone who is qualified to administer oaths. Aylor, 2011 WL 1659887, at *4. Thus, “an affiant must be physically present in front of the magistrate or officer authorized to administer oaths when swearing to the facts in his affidavit to support a search warrant.” Id. Further, “where the oath was taken solely over the telephone and not physically in front of any officer authorized to administer oaths, the presence requirement is not met.” Id. I agree with Aylor’s disposition of Clay’s argument. I also note that the Court of Criminal Appeals refused the State’s petition for discretionary review in Aylor.

In this case, the oath was administered by the magistrate to Trooper Ortega by telephone. The record does not show that Trooper Ortega took the oath in front of some other officer authorized to administer oaths, and the affidavit is not notarized. Thus, the presence requirement was not satisfied. But unlike in Aylor, the State argues here that even if the affidavit was invalid, Trooper Ortega was acting in good-faith reliance on the search warrant when he obtained the blood-test evidence and the presence requirement was therefore excused.

Article 88.23 of the code of criminal procedure provides that evidence obtained in violation of the United States and Texas Constitutions and federal and state law is inadmissible against the accused. Tex. Code CRiM. Proc. Ann. art. 38.23(a) (West 2005). But there is an exception if the law enforcement officer was acting in objective good-faith reliance upon a warrant issued by a neutral magistrate based on probable cause. Id. art. 38.23(b).

Clay states, “There is no indication the trooper was acting in good faith but rather everything suggests an effort to save time and cost by circumventing the necessity to personally appear.” I disagree. The stipulations indicate that Trooper Ortega was “acting in objective good faith reliance upon” the warrant in obtaining the evidence. In this case, the parties stipulated that Trooper Ortega and the magistrate spoke over the telephone; they each recognized the other’s voice; Trooper Ortega swore to and signed the “Affidavit for Search Warrant” during the phone conversation; Trooper Ortega then faxed the affidavit to the magistrate; the magistrate issued the search warrant based on the affidavit and faxed it to Trooper Ortega; and Clay’s blood was drawn because the search warrant was issued. There was no challenge to the neutrality of the magistrate. Article 38.23(a) has as its primary purpose the deterrence of police activity that could not have been reasonably believed to be lawful by the officer committing the same. Drago v. State, 553 S.W.2d 375, 378 (Tex.Crim.App.1977); Carroll v. State, 911 S.W.2d 210, 223 (Tex.App.-Austin 1995, no pet.). That is not the case here. See Carroll, 911 S.W.2d at 223; see also Swenson v. State, No. 05-09-00607-CR, 2010 WL 924124, at *3-4 (Tex.App.Dallas Mar. 16, 2010, no pet.) (mem. op., not designated for publication).

Clay also argues that the good-faith reliance exception should not apply because the State has raised this issue for the first time on appeal. However, if the trial court’s decision is correct on any theory of law applicable to the case, it should be upheld. Powell v. State, 898 S.W.2d 821, 827 n. 4 (Tex.Crim.App.1994); Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Crim.App.1990). Here, Trooper Ortega was acting in good-faith reliance on the warrant when he obtained the blood-test evidence; therefore, Clay’s motion to suppress was properly denied.

Because I disagree with the majority’s reasoning regarding Clay’s issues but agree that the trial court’s judgment should be affirmed, I respectfully concur. 
      
      . Other courts have been presented with a fact pattern with some of the same characteristics. Different results have occurred. See Gravitt v. State, No. 05-10-01195-CR, 2011 Tex.App. LEXIS 8675 (Tex.App.-Dallas Nov. 2, 2011, no pet. h.); Hughes v. State, 334 S.W.3d 379 (Tex.App.-Amarillo, no pet.); Swenson v. State, No. 05-09-00607-CR, 2010 Tex.App. LEXIS 1832 (Tex.App.-Dallas Mar. 16, 2010, no pet.). In Hughes and Gravitt, the courts did not reach the issue because the affidavit was signed by a notary before it was faxed to the judge in support of the warrant. In Swenson, the court did not address the issue but rather validated the seizure on the good faith exception to the warrant requirement. Such a holding could have the collateral impact of invalidating any subsequent use of the telephonically administered oath as a good faith exception to the oath/warrant requirement.
     
      
      . We note that article 18.01(b) does not require that the affidavit that is “filed in every instance” must be presented to the magistrate before the search warrant is issued. Rather, the requirement is that sufficient facts must be presented to satisfy the magistrate that probable cause exists for issuance of a search warrant. Thus, in an appropriate case, it may be suitable to reduce the testimony an officer gives on oath over the telephone to a writing and filed even after the warrant is issued. See United States v. Turner, 558 F.2d 46 (2d Cir.1977). We need not decide that issue in this proceeding.
     
      
      . In 2011, the legislature approved the use of an "Unsworn Declaration” in lieu of an affidavit. The use of the prescribed form satisfies any requirement that a document have "a written sworn declaration, verification, certification, oath, or affidavit.” This statute is contained in the Civil Practice and Remedies Code section 132.001. The Code of Criminal Procedure uses the term "affidavit.” The definition of "affidavit” that has been used in some criminal cases comes from the Government Code. To the extent that the Government Code definition of affidavit is utilized in criminal proceedings, we see no reason why the unsworn declaration provision from the Civil Practice and Remedies Code would not also apply. However, we express no opinion in relation to its use in connection with the issuance of a search warrant at this time as it is unnecessary to the disposition of this proceeding.
     
      
      . Since that popular commercial aired, we have had huge technological advances. Communication now includes not only the ability to send pictures of the affiant, but also the ability to transmit live streaming video via Skype and other services.
     
      
      . We note it does require that the sworn affidavit must be "filed” which implies a writing; but the issue before us does not involve the absence of a written document.
     
      
      . We pause to note that the Tyler Court relied on the same portion of the Court of Criminal Appeal’s opinion in Smith as does Clay to conclude that because "the current state of Texas law then, as alluded to in the above quoted dicta by the court of criminal appeals in Smith, is that a physical, personal appearance is necessary, either before the magistrate, or before someone who is qualified to administer oaths,” an affiant must be physically present in front of the magistrate or other officer when swearing to the facts in an affidavit to support a search warrant. Aylor v. State, No. 12-09-00460-CR, 2011 WL 1659887, *4, 2011 Tex.App. LEXIS 3274, *11-12 (Tex.App.-Tyler April 29, 2011, pet. ref'd). For the reasons discussed in this opinion, we do not agree with the Tyler Court’s conclusion.
     
      
      . At least in regard to the offense of perjury, no evidence in addition to the jurat is needed to establish that the statements were made upon an oath. Hardy v. State, 213 S.W.3d 916, 917 (Tex.Crim.App.2007). We note that the Court of Criminal Appeals does reference physical presence of the notary. Such reference is not the issue of the opinion or the fact upon which the opinion turned and is, therefore, immaterial to the analysis. What was under review was whether there was any evidence that the false statements made in the body of the affidavit, the factual allegations, were made upon an oath. The Court held that the jurat alone was evidence that the statements were made upon an oath and, since the factual statements were false, constituted perjury. Id.
      
     
      
      
        . Because of our disposition of Clay’s issues, we need not address the State’s response that the seizure should not be suppressed under the good faith exception to the warrant requirement.
     