Franks Evidentiary Hearing

In Ramsey v. State 579 S.W.2d 920 (Tex. Crim. App. 1979) the Court laid out the three-part test for obtaining a Franks evidentiary hearing. The defendant must: (1) "Allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false"; (2) "Accompany these allegations with an offer of proof stating the supporting reasons"; (3) "Show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant." In Ramsey, the police officer testified that the informant told the officer that he had been in the defendant's motel room during the past twenty-four hours and observed the defendant in the possession of heroin. The defense wanted to have the informant testify, but he was in jail. The trial court asked defense counsel about the informant's anticipated testimony, and counsel responded that the informant would testify that he "had told him that he had never been in the motel room, and had not told officer Walker that he had." The trial court refused to allow the testimony of the informant but said that defense counsel's statements "could be included in the record as a Bill of Exception." The Court stated: Although no affidavit or other written support was offered, the trial court accepted defense counsel's statement as a Bill of Exception. We note that in Franks no affidavit or other written material was offered, but only a statement by defense counsel as to what would be shown if he were allowed to call witnesses on the issue. In the present case, the trial court refused to allow the defense to call a witness shown to be available but allowed defense counsel's statements as a Bill of Exception. Here, as in Franks, this preliminary showing is sufficient. Id. at 923