Opinion issued October 28, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00476-CR
COIWIN REVETT SAMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 919159
MEMORANDUM OPINION
Appellant, Coiwin Revett Sampson, waived his right to trial by jury and pleaded guilty to the felony offense of possession with intent to deliver a controlled substance. The trial court found appellant guilty and sentenced him to 10 years in prison. The trial court suspended the sentence, placed appellant on community supervision for 10 years, and assessed a $1,000 fine. In one point of error, appellant complains that the trial court erred in denying his motion to suppress evidence seized pursuant to an allegedly stale search warrant. We affirm.
BACKGROUND
On March 19, 2002, Officer J. Williamson (“the officer”) of the LaPorte Police Department received information from a confidential informant that the informant had seen a quantity of cocaine in appellant’s residence. On March 19, 2002, the officer appeared before Magistrate Howard R. Dixon (“the magistrate”). The officer signed a supporting affidavit for a search warrant, stating that he had “received [the] information from said confidential informant on March 19, 2002 . . . .” The magistrate executed the jurat attesting to the officer’s signature on the affidavit and issued the search warrant. Although it was March 19, 2002, the magistrate filled in the date blanks on both instruments with the number “13” as the date on which he signed. The search warrant was executed the next day, March 20, 2002. The incorrect dating of the instruments was not noticed until after the search warrant had been executed and the evidence had been seized.
In his motion to suppress, appellant asserted that the search warrant was stale on the day of its execution. The State presented an affidavit from the officer in which he explained that the magistrate had executed the instruments on March 19, 2002 and that the March 13, 2002 dates were clerical errors made by the magistrate. Appellant presented his own affidavit, which merely recited the fact that the instruments had the March 13, 2002 date and that the warrant had been executed on March 20, 2002. Appellant’s motion to suppress was denied.
DISCUSSION
A search warrant must be executed within three days of its issuance unless the period is shortened by the magistrate. Tex. Crim. Proc. Code Ann. art. 18.06(a) (Vernon 1977). The time allowed for the execution of a search warrant shall be three whole days, exclusive of the day of its issuance and the day of its execution. Tex. Crim. Proc. Code Ann. art. 18.07 (Vernon 1977). When a search warrant is not executed within the time period allowed, it becomes “functus officio,” having no further official force or effect. Green v. State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990). If the legality of a search depends on a warrant that has become functus officio, that search is unauthorized. Id.
When the validity of a search warrant is questioned, “[t]he warrant and supporting affidavit must be read together and a determination of validity is made according to the totality of the circumstances, the yardstick of measurement with the question of probable cause.” Id. at 760. Purely technical discrepancies in dates or times do not automatically vitiate the validity of the search. Id. at 759. Due to the nature of such technical errors, a trial court is allowed to hear explanatory testimony, which may cure the defect. Id. at 760.
Appellant argues that, due to the magistrate’s writing an incorrect date “not once – but twice[,]” it would be “sheer folly to suggest” that the magistrate’s error was not substantive error. Appellant’s argument is without merit.
Case law is replete with instances in which the same types of facial discrepancies as those found in this case have been cured through explanatory testimony. See, e.g., Lyons v. State, 503 S.W.2d 254, 256 (Tex. Crim. App. 1973) (affirming trial court’s judgment that facial discrepancy due to incorrectly dated search warrant was cured by explanatory testimony of police officer requesting warrant); Martinez v. State, 285 S.W.2d 221, 222 (Tex. Crim. App. 1955) (holding that incorrectly dated jurat to supporting affidavit would not “vitiate the warrant” based on explanatory testimony heard by trial court). Because there was a discrepancy on the face of the instruments, which were due to asserted technical errors, the trial court properly considered evidence outside the instruments themselves to explain the discrepancy.
Appellant argues in the alternative that the officer’s affidavit, which was presented by the State at the hearing on appellant’s motion to suppress, was insufficient for the trial court to determine that the magistrate executed the instruments on March 19, 2002. Appellant argues that the officer was necessarily a biased witness and that only the magistrate could credibly testify as to the date he signed the instruments. Generally, a trial court’s ruling on a motion to suppress lies within the sound discretion of that court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). A deferential review is proper even when the trial court makes its determination based solely upon affidavits. Manzi v. State, 88 S.W.3d 240, 242–44 (Tex. Crim. App. 2002) (extending the holding of Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999)). In this case, the affidavit of the officer is uncontroverted and clearly supports the trial court’s finding of inadvertent technical error on the part of the magistrate.
Appellant’s contention that the testimony of the officer was insufficient because only the magistrate could explain his error in dating the instruments is also without merit. See, e.g., Turner v. State, 886 S.W.2d 859 (Tex. App.—Beaumont 1994) (affirming judgment of trial court that testimony of police officer requesting warrant was sufficient to explain that magistrate’s filling in date blank on supporting affidavit with incorrect date was technical error).
We find that the trial court did not err in denying appellant’s motion to suppress. We overrule appellant’s sole point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).