1.4. Commencement of a complaint--Personal knowledge or belief[FN1] In the Name and by Authority of the State of Texas.

[FN2] Before me, the undersigned authority, on this day personally appeared C.D. who after being by me duly sworn on oath deposes and says that he has personal knowledge [or that he has good reason to believe and does believe based on the following information (state the information on which the belief is based)] and that he charges that heretofore, and before the making and filing of this complaint on or about the day of , 20 , in the County of , State of Texas, A.B. did then and there [here allege the offense committed according to the proper form for the particular offense]. Notes West's Key Number Digest West's Key Number Digest, Criminal Law 211 Legal Encyclopedias C.J.S., Criminal Law §§ 324, 327 to 332, 337

[FNa] Former Presiding Judge, Court of Criminal Appeals, Austin, Texas. [FNb] Former District Attorney and Senior District Judge, Austin, Texas.

[FNc] Board Certified Criminal Law Specialist, Austin, Texas and Past President of the Texas Defense Lawyers Association.

-------------------------------------------------------------------------------[FN1] Texas Constitution Art. 5, § 12. Vernon's Ann.C.C.P. arts. 15.04, 15.05 and 45.01, 45.16, 45.17. Either this form or the next form may be used for the commencement of a complaint. Complaint based on personal observations of the acts of the defendant by the victim is sufficient to state probable cause. Castillo v. State, 739 S.W.2d 280 (Tex.Cr.App.1987), appeal dismissed, cert. denied 487 U.S. 1228, 108 S.Ct. 2889, 101 L.Ed.2d 924 (1988). The complaint may be based on personal knowledge or upon information and belief where it alleges the affiant “has good reason to believe and does believe.” Rose v. State, 799 S.W.2d 381 (Tex.App.—Dallas 1990, no pet.). But a complaint based on information and belief without stating the facts upon which the belief is based is insufficient for a warrant of arrest to issue and any evidence obtained thereby is inadmissible. Barnes v. State, 390 S.W.2d 266 (Tex.Cr.App.1964) judgment reversed 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965); Ware v. State, 724 S.W.2d 38 (Tex.Cr.App.1986). The complaint need not state facts constituting probable cause when used as a basis for prosecution and not for search. Vallejo v. State, 408 S.W.2d 113 (Tex.Cr.App.1966).

The complaint, information or indictment must give the day, month and year of the commission of the offense. Bennett v. State, 163 Tex.Crim. 638, 295 S.W.2d 217 (App.1956). A complaint sworn to before the date the alleged offense was committed is defective. Ex parte Posey, 456 S.W.2d 140 (Tex.Cr.App.1970). Admission of evidence resulting from an arrest based on a warrant issued on affidavit stating the affiant “had personal knowledge” without detailing the information showing probable cause is error. Ware v. State, 724 S.W.2d 38 (Tex.Cr.App.1986). Complaint sworn to and signed by victim based on his personal observations of the acts of the defendant are sufficient to state probable cause. Castillo v. State, 739 S.W.2d 280 (Tex.Cr.App.1987), cert. denied, appeal dismissed 487 U.S. 1228, 108 S.Ct. 2889, 101 L.Ed.2d 924 (1988). A search or confession after the arrest on a warrant based on a complaint which fails to state probable cause is in violation of constitutional rights. Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1980), certiorari denied 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981). [FN2] A complaint need not have the formal beginning, unless in a justice or municipal court where the complaint is used as the basis for prosecution. Vogt v. State, 159 Tex.Crim. 211, 258 S.W.2d 795 (App.1953), cert. denied 346 U.S. 901, 74 S.Ct. 221, 98 L.Ed. 401 (1953).

Master your semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master your semester with Scribd & The New York Times

Cancel anytime.