TX11 applies GFE to SW based on a statute later held unconstitutional

In an opinion on remand from the Texas Court of Criminal Appeals, Davis good faith applies to a search warrant issued under a provision of the Texas Penal Code later declared unconstitutional. Siller v. State, 2019 Tex. App. LEXIS 2227 (Tex. App. – Eastland Mar. 21, 2019). The summary:

… In one issue on appeal, Appellant asserted that the trial court erred when it denied his motion to suppress because the Penal Code section that served as the basis for the issuance of the search and arrest warrant was later declared unconstitutional.

On original submission, we reversed the judgment of the trial court and remanded the case back to the trial court for further proceedings consistent with our opinion. Siller v. State, No. 11-15-00016-CR, 2016 Tex. App. LEXIS 8733, 2016 WL 4386107 (Tex. App.—Eastland Aug. 11, 2016), vacated, No. PD-1052-16, 2017 Tex. Crim. App. Unpub. LEXIS 703, 2017 WL 4401901 (Tex. Crim. App. Oct. 4, 2017) (not designated for publication). The State petitioned for discretionary review. The Court of Criminal Appeals granted the petition, vacated this court’s judgment, and remanded the cause for further consideration in light of its recent opinion in McClintock v. State, 541 S.W.3d 63 (Tex. Crim. App.), reh’g denied, 538 S.W.3d 542 (Tex. Crim. App. 2017). Siller, 2017 Tex. Crim. App. Unpub. LEXIS 703, 2017 WL 4401901, at *1. McClintock had not been handed down when we issued our original opinion. Having reconsidered the issue under McClintock’s guidance, we resolve it against Appellant and affirm the trial court’s judgment.

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