Brent Thomas Gordon v. State Texas

Appellant was convicted of aggravated sexual assault and a jury assessed punishment at 10 years confinement in the state penitentiary probated for 8 years and a fine of $8000.00. V.T.C.A. Penal Code, ? 22.021. The trial court assessed a term of not more than 120 days and not less than 60 days in the penitentiary as a condition of probation based upon the jurys affirmative finding that appellant used or exhibited a deadly weapon in the commission of the offense. Article 42.12, ? 3(g)(b), V.A.C.C.P. The conviction was affirmed on direct appeal. Gordon v. State, 767 S.W.2d 866 (Tex.App. - Eastland 1989). This Court granted appellants petition to review three grounds: (1) whether the Court of Appeals misapplied the ruling in Vallejo v. State, 408 S.W.2d 113 (Tex.Cr.App. 1966) by holding it is unnecessary for an affidavit in support of an arrest warrant issued under Chapter 45 of the Code of Criminal Procedure to be supported by facts stating probable cause; (2) whether the appeals court erred in applying Article 38.23(b), V.A.C.C.P., to the instant case since the evidence in question was obtained prior to the effective date of that statute; and (3) whether the Court of Appeals misapplied this Courts ruling in Black v. State, 739 S.W.2d 240 (Tex.Cr.App. 1987) by holding the prohibition against pretext arrests applies only to warrantless arrests and not to pretext arrests purportedly made pursuant to an arrest warrant. After reviewing each ground, the judgment is reversed and the cause remanded for further consideration in light of this opinion.