Elder Wilfredo Somoza v. State , 481 S.W.3d 693 ( 2015 )

Opinion issued November 24, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00716-CR
———————————
ELDER WILFREDO SOMOZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1910774
OPINION
After the trial court denied his motion to suppress evidence, appellant, Elder
Wilfredo Somoza, pleaded guilty to the Class A misdemeanor offense of driving
while intoxicated, and the trial court assessed his punishment at forty-five days’
confinement. 1 In two issues on appeal, appellant contends that the trial court erred
in denying his motion to suppress blood evidence because (1) the trial court
considered evidence outside of the probable cause affidavit when determining
whether probable cause supported the magistrate’s decision to issue a search
warrant for his blood sample, and (2) the magistrate did not have a substantial basis
for concluding that probable cause existed to support the warrant.
We affirm.
Background
On July 31, 2013, Tomball Police Department Officer J. Rodriguez pulled
appellant over for speeding at approximately 11:50 p.m. Officer Rodriguez
observed “several signs of intoxication, including red bloodshot glassy eyes, [a]
strong odor of alcoholic beverage and slurred speech.” Appellant admitted that he
had consumed two beers prior to being stopped. Based on appellant’s performance
on the standardized field sobriety tests, Officer Rodriguez arrested appellant for
driving while intoxicated (“DWI”). Appellant refused to provide a breath or blood
sample.
Officer Rodriguez sought a search warrant to collect a blood sample from
appellant. After setting forth Officer Rodriguez’s qualifications, the probable
cause affidavit stated:
1
See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp. 2015).
2
I have reason to believe that on or about July 31, 2013 at 11:59AM, in
Harris County, Texas, the Defendant did then and there unlawfully
operate a motor vehicle in a public place while intoxicated. My belief
is based on the following:
In this case, I was on patrol in the 14900 block of FM 2920, Tomball,
Harris County, Texas, on 7/31/13. I observed a black Nissan
Pathfinder driving 61 miles per hour in a 45 mile per hour zone. I
initiated a traffic stop and was able to make contact with the vehicle
driver and identify him by Texas [driver’s] license as Elder Somoza. I
noticed the defendant to have red glassy eyes and [he was] slurring his
speech. I then began to investigate a possible DWI.
I came into contact with Defendant and noticed a strong odor of
alcoholic beverage, red bloodshot eyes, slurred speech, and slow
movement. The defendant admitt[ed] drinking 2 beers.
I asked Defendant to perform some field sobriety tests to determine
the Defendant’s level of intoxication, including the Horizontal Gaze
Nystagmus test, One Leg Stand test, and Walk and Turn test. . . .
[I observed] 6 clues of intoxication on the Horizontal Gaze
Nystagmus test, 4 clues of intoxication on the One Leg Stand test, and
2 clues of intoxication on the Walk and Turn test.
Therefore, I placed the Defendant under arrest and transported the
Defendant to the police station. At the station, J. Rodriguez offered
Defendant an opportunity to provide a sample of the Defendant’s
breath and blood and Defendant declined to provide a sample. . . .
Officer Rodriguez swore to and signed the affidavit before Barbara Benton, a
dispatcher for the Tomball Police Department and a notary public, at 1:38 a.m. on
August 1, 2013. Officer Rodriguez faxed the probable cause affidavit to a
magistrate, who signed a warrant for the blood sample at 2:00 a.m. on August 1,
2013.
3
After being charged with DWI, appellant filed a pretrial motion to suppress
the evidence from the blood draw. Appellant pointed out that the probable cause
affidavit stated that Officer Rodriguez had “reason to believe that on or about July
31, 2013 at 11:59AM, in Harris County, Texas, the Defendant did then and there
unlawfully operate a motor vehicle in a public place while intoxicated,” but the
magistrate did not issue the search warrant until 2:00 a.m. on August 1, 2013.
Appellant argued that the probable cause affidavit “does not contain sufficient facts
within its four corners to establish probable cause that evidence of intoxication
would be found in Defendant’s blood at the time the search warrant was issued.”
Appellant argued that, looking solely to the four corners of the affidavit—which is
all that courts may consider when determining whether a magistrate properly
determined that probable cause to issue a warrant existed—“the magistrate signed
the search warrant more than 14 hours after the affidavit alleged that the crime
occurred.” He further argued that, due to the dissipation of alcohol in the
bloodstream over time, “[t]he longer the time gap between the initial stop and the
eventual signing of the warrant, the less likely the evidence of intoxication would
still be found in Defendant’s blood.”
At the hearing on his motion to suppress, appellant first objected to the
State’s “calling any additional witnesses to present new testimony that’s not
already presented within the [probable cause] affidavit.” The trial court overruled
4
this objection. Officer Rodriguez testified that he came into contact with appellant
at approximately 11:50 p.m. on July 31, 2013. Officer Rodriguez stated that the
probable cause affidavit contained a typographical error; specifically, the affidavit
erroneously stated that he came into contact with appellant at 11:59 a.m. when the
affidavit should have read 11:59 p.m. Officer Rodriguez testified that he does not
work the day shift, and, thus, he was not on duty at 11:59 a.m. on July 31, 2013,
and he could not have encountered appellant at that time. He stated that he signed
the probable cause affidavit before a notary public at 1:38 a.m. on August 1, 2013,
or “a few hours after the stop.”
The State also called Barbara Benton, the notary public who witnessed
Officer Rodriguez sign the probable cause affidavit, to testify at the hearing.
Benton testified that she worked the evening shift—8:00 p.m. to 6:00 a.m.—on
July 31, 2013, that that is her typical shift, and that she has worked the evening
shift for eleven years. Benton testified that she was not working at 11:59 a.m. on
July 31, 2013, and that she notarized the affidavit as soon as Officer Rodriguez
brought it to her.
The State and appellant both introduced copies of the probable cause
affidavit and the search warrant at the suppression hearing. Both copies of the
affidavit contain, on the top of the second page of the affidavit, a time stamp that
reads “07/31/2013 12:34 FAX,” and both copies of the search warrant contain, on
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the bottom of the warrant, a time stamp that reads “08/01/2013 01:58” and, on the
top of the document, a time stamp that reads “07/31/2013 12:35 FAX.” The copy
of the warrant that appellant proffered contains an additional time stamp at the top
of the warrant that reads “07/31/2013 13:09 FAX.”
The trial court stated the following on the record:
I think the facts of this case are pretty clear. In the affidavit to support
the search warrant the Tomball police officer wrote down 11:59 a.m.,
and[,] as he testified, he very simply made a mistake in putting a.m.
instead of p.m., and I believe that testimony to be true. We heard—
[b]ecause as he testified, [he] was not on duty at 11:59 a.m., had not
met the defendant at 11:59 a.m. The officer who notarized the
affidavit, she was not on duty at 11:59 a.m., so clearly the Court
believes that her testimony it was factually impossible for the officer
to have come into contact with the defendant at 11:59 a.m., and that
clearly by putting 11:59 a.m. in his affidavit instead of 11:59 p.m.,
which was clearly a technical mistake on his part, it being very close
to midnight, and so the State of Texas has satisfactorily explained the
reason for the office[r]—for the affidavit to say a.m. when it should
have read p.m., as it being just an honest mistake made by the officer
when it was impossible for it to be 11:59 a.m., and clearly the other
testimony all reflects that the affidavit was not notarized until after
12:00 a.m. the following day.
The trial court then denied appellant’s motion to suppress. Appellant pleaded
guilty to the offense of DWI, and the trial court assessed his punishment at forty-
five days’ confinement. This appeal followed.
Sufficiency of Probable Cause Affidavit
In his first issue, appellant contends that the trial court erred in denying his
motion to suppress the blood draw when it considered evidence outside of the
6
probable cause affidavit when determining whether the magistrate had probable
cause to issue the search warrant. In his second issue, appellant contends that the
trial court erred in denying his motion to suppress because, when only the
information contained within the affidavit is considered, the magistrate did not
have a substantial basis for concluding that probable cause existed to support a
warrant.
A. Standard of Review
When reviewing a trial court’s ruling on a motion to suppress evidence, we
normally use a bifurcated standard of review. See Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997). Under this standard, we defer to the trial court’s
determination of historical facts but review de novo the application of the law to
the facts. Id. However, when the question before the trial court is whether
probable cause supported the issuance of the search warrant, the trial court does
not make credibility determinations but is instead “constrained to the four corners
of the affidavit.” State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011)
(citing Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004)). Thus,
when we review a magistrate’s decision to issue a warrant, “we apply a highly
deferential standard because of the constitutional preference for searches to be
conducted pursuant to a warrant as opposed to a warrantless search.” Id. (citing
Swearingen v. State, 143 S.W.3d 808, 810–11 (Tex. Crim. App. 2004)). We will
7
uphold the magistrate’s probable cause determination as long as the magistrate had
a substantial basis for concluding that probable cause existed. Id.; see also Illinois
v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983) (“[T]he traditional
standard of review of an issuing magistrate’s probable cause determination has
been that so long as the magistrate had a ‘substantial basis for . . . conclud[ing]’
that a search would uncover evidence of wrongdoing, the Fourth Amendment
requires no more.”) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct.
725, 736 (1960)).
We do not analyze probable-cause affidavits in a hyper-technical manner.
See McLain, 337 S.W.3d at 271 (citing Gates, 462 U.S. at 236, 103 S. Ct. at 2331).
Instead, we interpret the affidavit in a “commonsensical and realistic manner,
recognizing that the magistrate may draw reasonable inferences.” Id. We do not
focus on information that is not contained within the probable cause affidavit;
rather, we focus on the “combined logical force of facts that are in the affidavit.”
Rodriguez v. State, 232 S.W.3d 55, 62 (Tex. Crim. App. 2007) (emphasis in
original). When in doubt, we defer to all reasonable inferences that the magistrate
could have made when considering the affidavit. McLain, 337 S.W.3d at 271; see
also Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012) (“‘[T]he
magistrate’s decision should carry the day in doubtful or marginal cases, even if
8
the reviewing court might reach a different result upon de novo review.’”) (quoting
Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)).
To justify the issuance of a search warrant, the affidavit must set forth facts
sufficient to establish probable cause that (1) a specific offense has been
committed; (2) the specifically described property or items to be searched for or
seized constitute evidence of that offense; and (3) the property or items
constituting such evidence are located at the particular place to be searched. TEX.
CODE CRIM. PROC. ANN. art. 18.01(c) (Vernon 2015); McKissick v. State, 209
S.W.3d 205, 211 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We determine
whether the facts alleged in the probable cause affidavit sufficiently support a
search warrant by examining the totality of the circumstances. State v. Griggs, 352
S.W.3d 297, 301 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). “Probable
cause is ‘a fluid concept—turning on the assessment of probabilities in particular
factual contexts—not readily, or even usefully, reduced to a set of neat legal rules.”
Rodriguez, 232 S.W.3d at 64 (quoting Gates, 462 U.S. at 232, 103 S. Ct. at 2329).
A search warrant is supported by probable cause when the facts set out within the
“four corners” of the affidavit are “sufficient to justify a conclusion that the object
of the search is probably on the premises to be searched at the time the warrant is
issued.” Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006).
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B. Consideration of Evidence Outside Probable Cause Affidavit
Generally, when the trial court determines whether probable cause supported
the magistrate’s decision to issue a warrant, the court is constrained to the four
corners of the probable cause affidavit. McLain, 337 S.W.3d at 271; cf. Cates v.
State, 120 S.W.3d 352, 354–55 n.3 (Tex. Crim. App. 2003) (contrasting challenge
to whether affidavit is legally sufficient to demonstrate probable cause, in which
reviewing court is constrained to four corners of affidavit, with challenge to
truthfulness of information contained within affidavit, in which reviewing court
may look outside four corners of affidavit). The probable cause affidavit “must
provide the magistrate with a substantial basis for concluding that a search warrant
would uncover evidence of wrongdoing.” Davis v. State, 144 S.W.3d 192, 197
(Tex. App.—Fort Worth 2004, pet. ref’d); see also Elardo v. State, 163 S.W.3d
760, 769 (Tex. App.—Texarkana 2005, pet. ref’d) (“Because the magistrate is
confined to the four corners of the affidavit in determining probable cause, the
state cannot supplement the probable cause affidavit with additional information
not contained in the affidavit.”). The State may not use testimony at a suppression
hearing to “remedy defects in a warrant.” Elardo, 163 S.W.3d at 769; Barraza v.
State, 900 S.W.2d 840, 843 (Tex. App.—Corpus Christi 1995, no pet.) (“While we
must apply the totality of the circumstances standard in testing the sufficiency of
the affidavit, this application only goes to the circumstances included in the
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affidavit. That is why we must restrict ourselves to the ‘four corners’ of the
affidavit.”) (internal citation omitted).
However, an exception to this rule exists when the State alleges that a
typographical error or a technical defect exists in the search warrant. The Court of
Criminal Appeals has held that “purely technical discrepancies in dates or times do
not automatically vitiate the validity of search or arrest warrants.” Green v. State,
799 S.W.2d 756, 759 (Tex. Crim. App. 1990) (emphasis in original). The two
objectives of the law relating to search warrants are (1) to ensure there is adequate
probable cause to search and (2) to prevent a mistaken execution of a warrant
against an innocent third party. Id. at 757. Because these objectives “are not
furthered by rigid application of the rules concerning warrants,” reviewing courts
“review technical discrepancies with a judicious eye for the procedural aspects
surrounding issuance and execution of the warrant.” Id. In situations involving
purely technical defects in a search warrant, the Court of Criminal Appeals has
allowed the State to offer explanatory testimony at the suppression hearing to
demonstrate that the defect is merely a technical or clerical error. See id. at 759.
The court stated:
When the question on appeal relates to descriptive facts supporting the
probable cause determination, a reviewing court may logically look
behind the warrant to the supporting affidavit. But, the same may not
be said for all so-called “technical defects” acknowledged by the
State. Due to the nature of such errors, this Court has held such
defects may be cured by explanatory testimony.
11
Id. at 760.
In Green, the face of the search warrant reflected that it was signed and
issued by the magistrate on March 20, 1987, but the return on the warrant stated
that it was executed on March 25, 1987. Id. at 757. The defendant moved to
suppress and argued that the warrant was invalid because, on its face, it violated
Code of Criminal Procedure article 18.07, which provides that a warrant “shall be
executed within a time frame of three days.” Id. The Court of Criminal Appeals,
in addressing the State’s contention that the March 20, 1987 date on the warrant
was a clerical error, noted that the following discrepancies existed among the
probable cause affidavit, the warrant, and the return:
[T]he sworn complaint of the officer requesting the warrant reflects
the affiant received his informant’s information on March 25, 1987.
The affidavit contains a file date of 10:30 a.m. on the same day. The
“form” warrant then recites, as noted ante and after two blanks were
filled in with the date of March 20, 1987, that the warrant “came to
hand” and was executed on March 25, 1987. The latter date is twice
typed onto the document, while the earlier date is scrawled into the
appropriate blanks. The same document reflects a return date of
March 25th as well.
Id. at 760. Thus, the warrant was “dated on an earlier day than the affidavit needed
to support issuance of the warrant, and a corresponding later date appear[ed] on the
bottom of the warrant document as the return thereof.” Id. at 760–61.
The Court of Criminal Appeals noted that, although the State claimed that
the earlier date of March 20 was a clerical error, the State offered no evidence at
12
the suppression hearing to support this contention. Id. at 761. Because there was a
“total lack of evidence corroborating the State’s contention of clerical error,” the
Court of Criminal Appeals ultimately concluded that the trial court should have
granted the defendant’s motion to suppress. Id.; see also Rougeau v. State, 738
S.W.2d 651, 663 (Tex. Crim. App. 1987) (considering testimony at suppression
hearing demonstrating that arrest warrant date of January 6, 1977, rather than
January 6, 1978, which was when warrant was actually obtained and defendant
arrested, was typographical error), overruled on other grounds by Harris v. State,
784 S.W.2d 5 (Tex. Crim. App. 1989); Lyons v. State, 503 S.W.2d 254, 255–56
(Tex. Crim. App. 1973) (considering undisputed testimony at suppression hearing
that officer committed typographical error when he dated probable cause affidavit
July 11, 1971, and search occurred on that date, but search warrant was dated
March 11, 1971); Martinez v. State, 285 S.W.2d 221, 222 (Tex. Crim. App. 1955)
(considering testimony of magistrate at suppression hearing that jurat of probable
cause affidavit incorrectly stated that affidavit was sworn to before magistrate on
December 13, 1955, when it was actually sworn to on January 13, 1955, which was
when warrant issued).
Two of our sister courts of appeals have, in unpublished decisions, extended
the rationale of Green to allow for the consideration of testimony at a suppression
hearing that an error in the supporting probable cause affidavit was a typographical
13
error. In State v. Welborn, the probable cause affidavit stated two different dates
for the traffic stop at issue. See No. 02-14-00464-CR, 2015 WL 4599379, at *1
(Tex. App.—Fort Worth July 30, 2015, pet. filed) (mem. op., not designated for
publication). The affiant first stated that the stop occurred “on or about the 02 day
of September, 2013,” but then stated several paragraphs later that the stop occurred
“[o]n Sunday, September 1, 2013, at approximately 0352 hours.” Id. The affidavit
concluded with the affiant swearing to the facts alleged “on this the 2 day of
September, 2013.” Id. The search warrant for a blood draw issued at 5:30 a.m. on
September 2, 2013. Id. The trial court allowed the affiant to testify at the
suppression hearing that the reference to the stop occurring on September 1 was a
clerical error, and the court made an explicit finding that the September 1 date was
a clerical error. Id.
The Fort Worth Court of Appeals held that the trial court’s fact finding
regarding the clerical error was supported by the record. Id. at *3. The court cited
Green to support its conclusion that, “[i]n instances such as this case, ‘parol
evidence to explain the error on the face of the instrument’ may be considered in
determining whether the issuing magistrate had a substantial basis in issuing its
warrant.” Id. (quoting Green, 799 S.W.2d at 761). The court held that because the
trial court found that the September 1 date was a clerical error and that the correct
date of the stop was September 2, “the trial court should have legally concluded
14
that the clerical error did not vitiate the search warrant.” Id.; see also Reyes v.
State, No. 02-11-00327-CR, 2013 WL 1338023, at *1, 3 (Tex. App.—Fort Worth
Apr. 4, 2013, no pet.) (mem. op., not designated for publication) (holding that trial
court did not abuse its discretion by allowing testimony from affiant that statement
in probable cause affidavit that controlled buy occurred on May 18, 2009, was
typographical error and correct date was May 18, 2010); Salzido v. State, No. 07-
10-0031-CR, 2011 WL 1796431, at *5 (Tex. App.—Amarillo May 11, 2011, pet.
ref’d) (mem. op., not designated for publication) (holding that trial court properly
considered testimony of affiant at suppression hearing that references to incorrect
name of accused and date were typographical errors); Schornick v. State, No. 02-
10-00183-CR, 2010 WL 4570047, at *3 (Tex. App.—Fort Worth Nov. 4, 2010, no
pet.) (mem. op., not designated for publication) (considering testimony of affiant at
suppression hearing that statement in probable cause affidavit that traffic stop
occurred on January 31, 2008, was clerical error and that stop actually occurred on
January 31, 2009); cf. Meeks v. State, 851 S.W.2d 373, 377–78 (Tex. App.—
Houston [1st Dist.] 1993, pet. ref’d) (stating that date affiant swore to facts
contained within probable cause affidavit before magistrate “may have been a
clerical error” when affidavit reflected that affiant swore to facts on August 15,
1991, four months before affiant received relevant information from confidential
information on December 13, 1991, as stated in affidavit, and four months before
15
warrant issued on December 17, 1991, but sustaining appellant’s point of error
challenging trial court’s denial of motion to suppress because State offered no
explanation for inconsistencies and, thus, “[t]here is no evidence in the record to
explain the discrepancies in the dates” contained within affidavit).
Here, the probable cause affidavit in support of a search warrant seeking a
blood draw from appellant stated that Officer Rodriguez had reason to believe that
appellant “on or about July 31, 2013 at 11:59AM” unlawfully operated a motor
vehicle in a public place while intoxicated. The affidavit stated that it was sworn
to before a notary on August 1, 2013, at 1:38 a.m. The magistrate signed the
search warrant at 2:00 a.m. on August 1, 2013. Appellant moved to suppress the
blood evidence on the basis that, as the affidavit stated that the offense occurred at
11:59 a.m. on July 31, 2013, the information in the affidavit supporting a
conclusion that evidence of intoxication could be found in appellant’s bloodstream
was stale by the time the magistrate issued the search warrant at 2:00 a.m. on
August 1, 2013, fourteen hours later.
In response, the State argued that “11:59 a.m.” in the probable cause
affidavit was a typographical error and that Officer Rodriguez actually came into
contact with appellant at 11:59 p.m. on July 31, 2013, only two hours before the
magistrate issued the search warrant. At the suppression hearing, the State sought
to corroborate this contention with the testimony of Officer Rodriguez and Barbara
16
Benton, the notary who witnessed Rodriguez’s signature on the affidavit. The trial
court allowed this testimony over appellant’s objection. Officer Rodriguez
testified that he came into contact with appellant at 11:50 p.m. on July 31, 2013,
that the recitation in the affidavit that the offense occurred at 11:59 a.m. on July
31, 2013, was a typo, that he worked the evening shift and thus was not on duty at
11:59 a.m. on July 31, and that he signed the affidavit before a notary at 1:38 a.m.
on August 1, 2013, “a few hours after the stop.” Benton likewise testified that she
worked the evening shift from 8:00 p.m. to 6:00 a.m., that she had worked that
shift for approximately eleven years, that she was not on duty at 11:59 a.m. on July
31, and that she notarized the affidavit as soon as Officer Rodriguez brought it to
her. Appellant cross-examined both witnesses, but he did not put on any
controverting evidence suggesting that the traffic stop actually occurred at 11:59
a.m. on July 31, 2013, and thus the “a.m.” indication on the affidavit was not
erroneous.
Although the general rule is that when reviewing a magistrate’s probable
cause determination the trial court is constrained to the four corners of the probable
cause affidavit, the Court of Criminal Appeals has consistently allowed the State to
present testimony at a suppression hearing to support a contention that the search
warrant contains typographical errors. See, e.g., Green, 799 S.W.2d at 760
(“[T]his Court has held that such [technical] defects may be cured by explanatory
17
testimony.”). Two of our sister courts have extended this rationale to allow the
State to present testimony at a suppression hearing to support a contention that the
supporting probable cause affidavit contains a typographical error. See, e.g.,
Welborn, 2015 WL 4599379, at *3; Salzido, 2011 WL 1796431, at *5. We adopt
the rationale of our sister courts and conclude that the trial court properly allowed
testimony from Officer Rodriguez and Benton at the suppression hearing to explain
why the “11:59 a.m.” notation on the probable cause affidavit was a typographical
error.
Appellant cites to two Court of Criminal Appeals cases specifically in the
DWI context, Crider v. State, 352 S.W.3d 704 (Tex. Crim. App. 2011), and State
v. Jordan, 342 S.W.3d 565 (Tex. Crim. App. 2011), for the proposition that the
trial court should not have considered extrinsic testimony at the suppression
hearing. Crider and Jordan are factually distinguishable from this case because, in
both of those cases, the probable cause affidavit did not state a time for when the
officer encountered the DWI suspect at all. See Crider, 352 S.W.3d at 706 (noting
that officer did not state in affidavit time that he observed defendant driving while
intoxicated); Jordan, 342 S.W.3d at 568 (noting that probable cause affidavit did
not specifically state time officer made his observations of defendant). Neither
case involved a situation in which the probable cause affidavit stated a time that
the officer encountered the defendant that the State asserted was a typographical
18
error, allowing to present extrinsic testimony to establish the typographical error.
Thus, neither case justifies holding that the State was not entitled to demonstrate
the typographical error through extrinsic testimony. 2
The trial court considered Officer Rodriguez’s and Benton’s testimony and
explicitly stated on the record that the “11:59 a.m.” notation in the probable cause
affidavit was a “technical mistake.” The testimony presented at the suppression
hearing supports this conclusion, and appellant presented no evidence that the
traffic stop actually occurred at 11:59 a.m. on July 31, 2013, such that the notation
on the affidavit was not erroneous. Thus, the evidence, when viewed in the light
most favorable to the trial court’s ruling, supports the trial court’s fact finding that
the notation of “11:59 a.m.” was a typographical error or technical defect and that
Officer Rodriguez came into contact with appellant at 11:59 p.m. on July 31, 2013.
See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) (“When a trial
court makes explicit fact findings, the appellate court determines whether the
2
The Fort Worth Court of Appeals distinguished Crider on this same basis in
Welborn, noting that the case currently before the court involved “‘a discrepancy
in dates’ instead of containing no date at all.” State v. Welborn, No. 02-14-00464-
CR, 2015 WL 4599379, at *3 (Tex. App.—Fort Worth July 30, 2015, pet. filed)
(quoting Green v. State, 799 S.W.2d 756, 760 (Tex. Crim. App. 1990)). The Fort
Worth court then stated, “In instances such as this case, ‘parol evidence to explain
the error on the face of the instrument’ may be considered in determining whether
the issuing magistrate had a substantial basis in issuing its warrant.” Id. (quoting
Green, 799 S.W.2d at 761). The court ultimately concluded that because the trial
court explicitly found that an error in the date of the alleged offense listed in the
probable cause affidavit was a clerical error, the trial court “should have legally
concluded that the clerical error did not vitiate the search warrant.” Id.
19
evidence (viewed in the light most favorable to the trial court’s ruling) supports
these fact findings.”). The trial court thus properly concluded that the
typographical error contained within the probable cause affidavit did not vitiate the
subsequently-issued search warrant.
Officer Rodriguez’s testimony at the suppression hearing that the traffic stop
occurred at 11:59 p.m. on July 31, 2013, combined with the information in the
probable cause affidavit that Rodriguez could smell a strong odor of alcohol when
he encountered appellant, that appellant was speeding, that appellant had red,
glassy, and bloodshot eyes, that appellant was slurring his speech, that appellant
was moving slowing, and that appellant performed poorly on the standardized field
sobriety tests, sufficiently demonstrates that the magistrate had a substantial basis
for determining that probable cause existed to believe that evidence of intoxication
was present in appellant’s bloodstream at the time the warrant issued two hours
after the traffic stop. See McLain, 337 S.W.3d at 271 (stating standard for
determining whether probable cause supported search warrant); Hogan v. State,
329 S.W.3d 90, 96 (Tex. App.—Fort Worth 2010, no pet.) (holding that affidavit
sufficiently set forth probable cause to support issuance of search warrant in DWI
case when affidavit set out defendant’s performance on field sobriety tests, stated
that defendant had recklessly driven vehicle, that strong odor of alcohol was
present, that defendant had bloodshot and watery eyes, that defendant had swayed
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and was unsteady on his feet, and that appellant had a “staggered walk”). We hold
that the trial court properly denied appellant’s motion to suppress.
We overrule appellant’s first and second issues.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Massengale, and Lloyd.
Justice Massengale, concurring.
Publish. TEX. R. APP. P. 47.2(b).
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