D lawyer filed a meritless motion to suppress in County Court to challenge a case which is the basis for our motion to revoke. Search warrant produced xanax and mj. For a variety of reasons my attempt to hold the revocation a day earlier than the suppression hearing failed. I had one of the felony prosecutors sit with the misdemeanor atty. Just as I feared and the D lawyer hoped: without ever acknowledging the Franks procedure, the Judge has pretty much begun a Franks hearing. My guy has objected to high holy and pointed out the proper procedure. Subject to that objection, he has gone forward. If the thing goes all the way south, have we waived our objection that the defense has failed to make a substantial showing of intentional falsehood or reckless disregard for the truth (or material omission) of assertions in the affidavit? The affidavit more than passes muster and there is nothing false included or material omitted. I think we will be ok but I can find no cases. My secondary fear is that the Judge is so confused she/he may start thinking about having the police up the snitch which is definitely not happening.

I am confused. The County Criminal Court judge is examining (whether necessary under Franks or not) evidence outside the four corners of the affidavit to determine if (a) false statements were included and, if so, (b) whether this was done intentionally or with reckless disregard. You state you expect the result of the hearing to be that nothing false was included, but hypothesize an adverse ruling on both issues and perhaps further that once the offending allegations are excised the court will say the affidavit failed to truthfully state sufficient facts to justify the issuing magistrate's decision? The identity of the informant should have nothing to do with the content of the information, though I guess it might affect the credibility of the information. But the identity need not necessarily be revealed, unless it is claimed the affiant omitted material, known information about the informant. But, that issue is certainly not reached until it is established the information received was false. If the falsity is shown, then perhaps that impacts the merits of the case as well? In any event, cannot you appeal from the decision of the County Court and then schedule the MTR hearing and thereby avoid any claim that the County court ruling is binding at the revocation hearing?

The tracks are running in the same direction but parallel. Track one: let's not mince words, the Judge has no idea what he/she is doing. She/he is allowing the D atty to wander around fishing for anything. The Judge probably does not understand the four-corners doctrine. Certainly there is zero understanding of the Franks procedure. This is the reason D counsel hurried to file the mts in the misdemeanor court. I just want to make sure that we have all of our possible grounds for reversal available if the worst happens. The D is the scion of local dope aristocracy.

The CI problem is a little trickier because the CI cannot be burned. If the Judge were to order disclosure can we take an interlocutory appeal or seek a writ of prohibition or some such? I'm sorry to put a question like this before folks who think logically because logic won't help. Do you really think that we could press forward with a revocation while the (possible) suppression is on appeal? (I love the idea but my gut tells me that what would not be final for the D would be for us until the appeal court went our way)

I think you can do a state's appeal if the trial court dismisses or suppresses because of a refusal to reveal a C.I. See State v. Sustaita, --- S.W.3d ----, 2004 WL 1945008 (Tex.App.-Houston [1 Dist.] Sept 02, 2004). The trial court is supposed to dismiss the charges if the State refuses to disclose when disclosure is required. TRE 508(c)(2). Such a dismissal should trigger 44.01(a)(1).

There's a reasonable argument that a suppression ruling will not support a later claim of collateral estoppel -- because jeopardy never attached in the first proceeding. State v. Rodriguez, 11 S.W.3d 314 (Tex.App.-Eastland 1999), and State v. Henry, 25 S.W.3d 260 (Tex.App.-San Antonio 2000).

By George, I think these cases on suppression and estoppel are just the thing. As I read them, I remembered reading a case that identified suppression motions as nothing more than complicated objections. Thanks for taking the time to help.

Do you have any technical violations? Why not go forward on the MTR while the appeal is pending, putting forward the new offense, since the suppression (if it happens) will not be a final order as an appeal is pending, and any technical violations as well. If the suppression is upheld on appeal in the misdemeanor case and thereby becomes a problem for supporting your revocation in the felony MTR, you can always fall back on the technical violations as a basis for the revocation. As about a million cases say, any one violation of probation is enough for revocation (at least for the courts - some members of the leg. might not like it!)