PD-1058-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/28/2015 7:27:02 PM
Accepted 9/30/2015 2:49:57 PM
ABEL ACOSTA
COURT OF CRIMINAL APPEALS CLERK
PD-1058-15
State of Texas, Appellant
v.
Casey Welborn, Appellee
On Discretionary Review from No. 02-14-00464-CR
Second Court of Appeals
On Appeal from No. CR-2013-07913-D
County Criminal Court No. 4, Denton County
Petition for Discretionary Review
Mark T. Lassiter
3500 Maple Ave Suite 400
Dallas, TX 75219
Phone: 214-845-7007
Fax: 214-845-7006
mark@lassiterlawoffice.com
Texas Bar No. 24055821
Michael Mowla
September 30, 2015
P.O. Box 868
Cedar Hill, TX 75106
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
If the Petition is granted, oral argument is requested
1
I. Identity of Parties, Counsel, and Judges
Casey Welborn, Appellee
Mark T. Lassiter, attorney for Appellee at trial and on discretionary review
Michael Mowla, attorney for Appellee on discretionary review
State of Texas, Appellant
Paul Johnson, Denton County District Attorney, Attorney for Appellee
Emily Chilivetis, Denton County Assistant District Attorney
Britney Tomberlin, Denton County Assistant District Attorney
Catherine Luft, Denton County Assistant District Attorney
Lara Tomlin, Denton County Assistant District Attorney
Lisa McMinn, State Prosecuting Attorney
John Messinger, Assistant State Prosecuting Attorney
Hon. Joe Bridges, Presiding Judge of County Criminal Court No. 4, Denton
County
2
II. Table of Contents
I. Identity of Parties, Counsel, and Judges ..........................................................2
II. Table of Contents .............................................................................................3
III. Table of Authorities .........................................................................................5
IV. Appendix Index ...............................................................................................6
V. Statement Regarding Oral Argument ..............................................................7
VI. Statement of the Case and Procedural History ................................................8
VII. Grounds for Review.......................................................................................10
VIII. Argument .......................................................................................................11
1. Ground for Review: The court of appeals erred by effectively
creating a bright-line rule that all errors in warrants and
probable cause affidavits supporting a warrant may be
explained later using parol evidence. This bright-line rule: (1)
violates the Fourth Amendment; and (2) allows the adequacy of
an affidavit supporting a search warrant to no longer be
governed by the rule that probable cause must be determined
from the four corners of the affidavit alone, but may instead be
explained later using parol evidence. Thus, this Court should
hold that parol evidence may not be used to supplement
information contained within the “four corners” of a probable
cause affidavit if the parol evidence allows the State to justify a
Fourth Amendment seizure after-the-fact. ....................................................11
i. Introduction .........................................................................................11
ii. The “four-corners rule” prohibits going outside the “four
corners” of an affidavit supporting a search warrant, and
the court of appeals clearly violated this rule......................................11
iii. Review of probable cause affidavits supporting a search
warrant require a commonsense, and not a hypertechnical
analysis ................................................................................................13
iv. The incorrect information in the affidavit (the date) is not
something within the “common knowledge” of the
officer or magistrate ............................................................................14
v. The Court of Appeals misinterpreted this Court’s ruling
in Green ...............................................................................................15
3
vi. The opinion of the Court of Appeals circumvents Crider ..................17
IX. Conclusion and Prayer ...................................................................................18
X. Certificate of Service .....................................................................................20
XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................21
4
III. Table of Authorities
Cases
Cardona v. State, 134 S.W.3d 854 (Tex. App. Amarillo, pet. ref.)
(mem. op.) ......................................................................................................14
Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003) ........................................12
Crider v. State, 352 S.W.3d 704 (Tex. Crim. App. 2011) ................................ 12, 17
Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006) ........................................13
Doescher v. State, 578 S.W.2d 385 (Tex. Crim. App. 1978) ..................................12
Elardo v. State, 163 S.W.3d 760 (Tex. App. Texarkana 2005, pet. ref.) ................12
Flores v. State, 888 S.W.2d 193 (Tex. App. Houston [1st Dist.] 1994,
pet. ref.) ..........................................................................................................12
Green v. State, 799 S.W.2d 756 (Tex. Crim. App. 1990)........................................15
Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004) ....................................13
Harris v. State, 784 S.W.2d 5 (Tex. Crim. App. 1989) ...........................................17
Illinois v. Gates, 462 U.S. 213 (1983) .....................................................................14
Lowery v. State, 99 S.W.3d 398 (Tex. App. Amarillo 2003, no pet.) .....................12
Rougeau v. State, 738 S.W.2d 651 (Tex. Crim. App. 1987) ...................................17
Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. 2006) ................................. 12, 13
Statutes
Tex. Pen. Code § 49.04 (2013) ..................................................................................9
Rules
Tex. Rule App. Proc. 66.3 (2015) ............................................................................20
Tex. Rule App. Proc. 68.4 (2015) ....................................................................... 7, 11
Tex. Rule App. Proc. 9.4 (2015) ..............................................................................22
5
IV. Appendix Index
State v. Welborn, 02-14-00464-CR, 2015 Tex. App. LEXIS 8001 (Tex. App. Fort
Worth, July 30, 2015) (memorandum opinion)
6
V. Statement Regarding Oral Argument
Should the Court grant this petition, Appellee requests oral argument. See
Tex. Rule App. Proc. 68.4(c) (2015). The issue presented in this case involves one
of first impression in which the court of appeals effectively created a bright-line
rule that all errors in warrants and probable cause affidavits supporting a warrant
may be explained later using parol evidence. Therefore, should this Court
determine that its decisional process will be significantly aided by oral argument,
Appellee will be honored to present oral argument.
7
To The Honorable Judges of the Court of Criminal Appeals:
Appellee Casey Welborn respectfully submits this petition for discretionary
review:
VI. Statement of the Case and Procedural History
This petition requests that this Court review the Memorandum Opinion and
judgment of the Second Court of Appeals in State v. Welborn, 02-14-00464-CR,
2015 Tex. App. LEXIS 8001 (Tex. App. Fort Worth, July 30, 2015) (memorandum
opinion), in which the court of appeals reversed the order of the trial court
contained in the Findings of Fact and Conclusions of Law (“FFCL”) by holding
that the trial court erred by granting Appellee’s motion to suppress the results of a
blood draw performed under a warrant because the erroneous date in the affidavit
supporting the warrant was a clerical error that did not affect the validity of the
warrant under Texas Code Criminal Procedure Article 18.01 (2015).
Appellee was charged by information with Driving While Intoxicated
(“DWI”) under Texas Penal Code § 49.04. (CR, 5-6)1; see Tex. Pen. Code § 49.04
(2013). Appellee filed a motion to suppress the blood test results, specifically
attacking the affidavit supporting the blood warrant and the blood warrant itself.
1
The Record on Appeal consists of the Clerk’s Record and a Supplemental Clerk’s Record, and
the Reporter’s Record, which is three volumes. The Clerk’s Record is cited as “CR” or “CR-
Supp” and followed by the page number, and the Reporter’s Record is cited as “RR” followed by
the volume number, page number, or exhibit number.
8
(RR2; RR3, SX-1, SX-2; CR, 33-35). On November 3, 2014, hearing was held on
the motion to suppress the blood test results of Appellee. (RR2). The trial court
granted the motion to suppress, and entered the FFCL. (CR, 36-37, 40-41). Prior
to the disposition of the case, the State filed a notice of appeal. (CR, 42-43).
On July 30, 2015, the Court of Appeals reversed the order of the trial court.
See State v. Welborn, 02-14-00464-CR, 2015 Tex. App. LEXIS 8001 (Tex. App.
Fort Worth, July 30, 2015) (memorandum opinion). This petition for discretionary
review follows.
9
VII. Grounds for Review
Ground for Review: The court of appeals erred by effectively creating a
bright-line rule that all errors in warrants and probable cause affidavits
supporting a warrant may be explained later using parol evidence. This
bright-line rule: (1) violates the Fourth Amendment; and (2) allows the
adequacy of an affidavit supporting a search warrant to no longer be
governed by the rule that probable cause must be determined from the four
corners of the affidavit alone, but may instead be explained later using parol
evidence. Thus, this Court should hold that parol evidence may not be used to
supplement information contained within the “four corners” of a probable
cause affidavit if the parol evidence allows the State to justify a Fourth
Amendment seizure after-the-fact.
Appellee directs this Court’s attention to the following parts of the record on
appeal:
Reporter’s Record, Volumes 2 and 3
Clerk’s record pages 40-41.
See Tex. Rule App. Proc. 68.4(f) (2015).
10
VIII. Argument
1. Ground for Review: The court of appeals erred by effectively creating a
bright-line rule that all errors in warrants and probable cause affidavits
supporting a warrant may be explained later using parol evidence. This
bright-line rule: (1) violates the Fourth Amendment; and (2) allows the
adequacy of an affidavit supporting a search warrant to no longer be
governed by the rule that probable cause must be determined from the
four corners of the affidavit alone, but may instead be explained later
using parol evidence. Thus, this Court should hold that parol evidence
may not be used to supplement information contained within the “four
corners” of a probable cause affidavit if the parol evidence allows the
State to justify a Fourth Amendment seizure after-the-fact.
i. Introduction
There is a difference between using parol evidence to explain deficiencies in
a probable cause affidavit that occurs before a Fourth Amendment seizure versus
using parole evidence to explain a deficiency that occurs after a Fourth
Amendment seizure. In this case, the State used parol evidence to explain a
deficiency in a probable cause affidavit that allowed the police to obtain a search
warrant (for blood) in the first instance. As the following analysis will show, this
is very different than the situation in Green (see below), in which 25 years ago, this
Court held that the State’s failure to get the warrant executed after a Fourth
Amendment search was conducted could be explained by parol evidence.
ii. The “four-corners rule” prohibits going outside the “four
corners” of an affidavit supporting a search warrant, and the
court of appeals clearly violated this rule.
Whether information contained in an affidavit in support of a search warrant
is legally adequate must be reviewed by considering only the “four corners” of the
11
affidavit. Doescher v. State, 578 S.W.2d 385, 387 (Tex. Crim. App. 1978); Cates
v. State, 120 S.W.3d 352, 359 (Tex. Crim. App. 2003); Smith v. State, 207 S.W.3d
787, 794 (Tex. Crim. App. 2006); Crider v. State, 352 S.W.3d 704, 710 (Tex.
Crim. App. 2011) (emphasis added). Even if officers are aware of additional
information that would be sufficient to establish probable cause, the warrant is
invalid if the critical facts are not included within the four corners of the affidavit
for the search warrant presented to the magistrate. Lowery v. State, 99 S.W.3d 398,
400 (Tex. App. Amarillo 2003, no pet.) (Reviewing court must restrict its review
of probable cause to the four corners of affidavit supporting the search warrant);
see Flores v. State, 888 S.W.2d 193, 197 (Tex. App. Houston [1st Dist.] 1994, pet.
ref.) (Although the officer testified during the hearing on the defendant’s motion to
suppress that he observed the defendant drive a vehicle to the location of a drug
transaction, such fact did not authorize the search of the defendant’s car because
the surveillance facts were not included in the affidavit supporting the search
warrant); see also Elardo v. State, 163 S.W.3d 760, 771 (Tex. App. Texarkana
2005, pet. ref.) (State cannot supplement the probable cause affidavit with
additional information not contained in the affidavit and testimony at a hearing on
the defendant’s motion to suppress).
12
Finally, the “four corners rule” applies only to the assessment of probable
cause, and does not apply to the issue of whether the affiant swore to the affidavit's
truthfulness. Smith, 207 S.W.3d at 794.
In the case before this court, it is undisputed that the State supplied a correct
date through parol evidence. Therefore, the “four-corners rule” rule was violated.
In the next section, Appellee will discuss whether Davis applies.
iii. Review of probable cause affidavits supporting a search warrant
require a commonsense, and not a hypertechnical analysis
In Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006), the Court of
Criminal Appeals held that the review of probable cause affidavits supporting a
search warrant require a commonsense, and not a hypertechnical analysis. As the
Court held, the “best practice” for affidavits supporting a search warrant is for the
affiant to include an officer’s experience, background information, and previous
associations with contraband so that “little is left to inference” and the magistrate
has specifically articulated facts to evaluate in determining if there is probable
cause. Id. Reasonable inferences, the Court held, may be drawn from the facts and
circumstances contained within the “four corners of the affidavit.” Id. (emphasis
supplied). See also Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004).
Davis clearly does not apply in Appellee’s case. A date has nothing to do
with an officer’s experience, background information, and previous associations
with contraband. Thus, with an incorrect date, there is nothing left “to inference” in
13
order to determine probable cause. Nor can the State, within the four corners of the
affidavit supporting the search warrant, show that although the affidavit supporting
the search warrant fails to show that the source of information was reliable, it
shows “a strong demonstration of basis of knowledge” that may “remedy a weak
showing of reliability.” Illinois v. Gates, 462 U.S. 213, 231-232 (1983).
iv. The incorrect information in the affidavit (the date) is not
something within the “common knowledge” of the officer or
magistrate
Nor can the State claim here that the mistaken fact (incorrect date) could be
within “common knowledge,” thus excusing the mistaken fact. It is not as though
the affidavit recited something to the effect of “it is within the knowledge of the
affiant that many people exit Lichas Cantina on 8th Street in Austin, Texas, while
apparently inebriated.” It is within the common knowledge of any person who
covets Mexican food or margaritas (or both), and who is familiar with the 6th Street
area in Austin that Lichas Cantina is actually on 6th Street. Therefore, a reviewing
court would be correct if it excused this mistake because it clearly was a clerical
error pertaining to a fact of “common knowledge.”
The mistaken date in this case is more closely aligned with the facts of
Cardona v. State, 134 S.W.3d 854, 859 (Tex. App. Amarillo, pet. ref.) (mem. op.),
because like the situation regarding a date, a magistrate would have to engage in
speculation when determining what materials are used in the manufacture of drugs.
14
In Cardona, the affidavit in support of the search warrant application referred to
the presence of anhydrous ammonia, psuedophed, baggies, coolers, a thermos,
latex gloves, and black nylon bags. Although none of these items were specifically
tied to the presence or manufacture of methamphetamine, the State argued that it is
‘‘common knowledge’’ that these items are often used in the manufacture of
methamphetamine. Id. The Court of Appeals rejected this argument and held the
State to the four-corners rule, holding that ‘‘common knowledge’’ consists of
matters ‘‘so well known to the community as to be beyond dispute’’ and that the
formula for or the ingredients of the manufacture of a controlled substance does
not fall within this category. Id. Thus, because any such information regarding the
manufacturing of methamphetamine fell outside the “realm” of the four corners of
the affidavit, the defendant’s conviction was reversed. Id. at 860.
v. The Court of Appeals misinterpreted this Court’s ruling in Green
The Court of Appeals referred to the incorrect date as one that is a
“purely technical” discrepancy “in dates or times” that “do not automatically
vitiate the validity of search or arrest warrants.” Welborn, id. at *5; citing Green v.
State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990). In Green, the search warrant
indicated that it was signed and issued by the magistrate on March 20, 1987. Id. at
757. The return on the warrant indicates that it was executed on March 25, 1987.
Id. Facially, the warrant violated Article 18.07(c), which requires a warrant to be
15
executed within three days, exclusive of the day of issuance and day of
execution. Id. This Court affirmed the judgment of the court of appeals, holding
that the warrant was stale when executed and the subsequent seizure invalid, and
there was no evidence presented showing a clerical error. Id. at 760-761.
And even if in Green had the State presented evidence showing a clerical
error, in Green, the issue was the State’s failure to get the warrant executed after a
Fourth Amendment search was conducted. In the case before this Court, the
officer wrote an affidavit for a search warrant for blood in which two different
dates appear for the stop: in the first paragraph, the officer wrote that Appellee
committed DWI “on or about the 02 day of September, 2013, but then in paragraph
five, the officer wrote that the stop occurred “[O]n, Sunday, September 1, 2013, at
approximately 0352 hours.” (RR3, SX-1; CR, 40). At the end of the affidavit, the
officer signed that he swore to the facts alleged “on this the 2 day of September,
2013.” (RR3, SX-1; CR, 40). The officer presents the affidavit to a magistrate,
who issues a “Search Warrant for Blood,” which incorporated the officer’s
affidavit, commanded the seizure of Appellee, and authorized a compelled blood
draw from Appellee. (RR3, SX-2). The warrant states that it was “[I]ssued at 5:30
o’clock a.m. on this the 2nd day of September, 2013.” (RR3, SX-2; CR, 41).
Appellee correctly argued that because the affidavit stated that the stop of
the vehicle occurred on “Sunday, September 1, 2013, at approximately 0352
16
hours,” and the warrant was signed by the magistrate “at 5:30 o’clock a.m. on this
the 2nd day of September, 2013,” there was a twenty-six hour period between
Appellee’s detention and the issuance of the warrant. (RR2, 31-35). This clearly
was in violation of Article 18.01 and Crider, 352 S.W.3d at 707-708. (CR, 41).
Thus, a critical difference between the facts of Green and the facts of this
case exist: in Green, the “clerical error” occurred after the Fourth Amendment
seizure took place. In the case before this Court, the so-called “clerical error”
occurred before the Fourth Amendment seizure took place, and the State used parol
evidence to “supplement” the information contained with the “four corners” of the
affidavit. This Court should not let this result stand.
vi. The opinion of the Court of Appeals circumvents Crider
Further, in the case before this Court, because there was a 26-hour time gap,
the trial court ruled correctly that the request for a blood search warrant was stale.
The opinion of the Court of Appeals circumvents Crider by creatively suggesting
that because the specific date listed in the affidavit for search warrant is incorrect,
can be explained after the fact by parole evidence. Clear typographical errors will
not vitiate either an arrest or search warrant. See Rougeau v. State, 738 S.W.2d
651, 663 (Tex. Crim. App. 1987), overruled on other grounds by Harris v. State,
784 S.W.2d 5 (Tex. Crim. App. 1989). If this Court were to let the opinion of the
Court of Appeals stand, a Pandora’s Box would open for a litany of questions for
17
the trial courts, and the four-corners rule would be rendered a legal fiction. Thus,
the trial court was correct in relying on Crider. (CR, 41).
It is of particular note that in this case, the error was not “clear” or “purely
technical.” A magistrate judge looking at the information within the “four corners”
of the affidavit could not know that the specific date listed of September 1, 2013
was incorrect. This is shown by the officer’s admission that the dates within his
affidavit are not in conflict, and the trial court’s finding of fact that the dates were
not in conflict. Thus, the trial court correctly ruled that a magistrate would have no
way of knowing if there was a clerical error or not.
IX. Conclusion and Prayer
The court of appeals erred by effectively creating a bright-line rule that all
errors in warrants and probable cause affidavits supporting a warrant may be
explained later using parol evidence. This bright-line rule: (1) violates the Fourth
Amendment; and (2) allows the adequacy of an affidavit supporting a
search warrant to no longer be governed by the rule that probable cause must be
determined from the four corners of the affidavit alone, but may instead be
explained later using parol evidence. Thus, this Court should hold that parol
evidence may not be used to supplement information contained within the “four
corners” of a probable cause affidavit if the parol evidence allows the State to
justify a Fourth Amendment seizure after-the-fact.
18
As a result, the Court of Appeals has: (1) decided an important question of
state and federal law that has not been, but should be, settled by the Court of
Criminal Appeals; and (2) decided an important question of state or federal law in
a way that conflicts with the applicable decisions of the Court of Criminal Appeals
and the Supreme Court of the United States. See Tex. Rule App. Proc. 66.3
(2015). Appellee respectfully prays that this Court grant discretionary review,
reverse the judgment of the court of appeals, and reinstate the order contained in
the Findings of Fact and Conclusions of Law that suppresses the results of the
illegal blood warrant.
Respectfully submitted,
Mark T. Lassiter
3500 Maple Ave Suite 400
Dallas, TX 75219
Phone: 214-845-7007
Fax: 214-845-7006
mark@lassiterlawoffice.com
Texas Bar No. 24055821
Attorney for Appellee
/s/ Mark T. Lassiter
By: Mark T. Lassiter
19
Michael Mowla
P.O. Box 868
Cedar Hill, TX 75106
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Appellee
/s/ Michael Mowla
By: Michael Mowla
X. Certificate of Service
I certify that on September 28, 2015, a true and correct copy of this
document was served by email on the District Attorney’s Office, Denton County,
Appellate Division, to Catherine Luft at catherine.luft@dentoncounty.com and
Lara Tomlin at lara.tomlin@dentoncounty.com, and on the State Prosecuting
Attorney to Lisa McMinn at Lisa.McMinn@spa.texas.gov, and John Messinger at
john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and 68.11
(2015).
/s/ Michael Mowla
By: Michael Mowla
20
XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4
This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 4,500 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 2,345 words in the document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented
(grounds for review section), statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix. This document also complies with the typeface requirements because it
has been prepared in a proportionally-spaced typeface using 14-point font. See
Tex. Rule App. Proc. 9.4 (2015).
/s/ Michael Mowla
By: Michael Mowla
21
APPENDIX
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00464-CR
THE STATE OF TEXAS STATE
V.
CASEY WELBORN APPELLEE
----------
FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY
TRIAL COURT NO. CR-2013-07913-D
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
The State of Texas appeals the trial court’s order granting appellee Casey
Welborn’s motion to suppress the results of a blood draw performed pursuant to
a warrant. In one issue, the State argues that the trial court abused its discretion
by suppressing the evidence “because the one instance of the incorrect date in
1
See Tex. R. App. P. 47.4.
the affidavit supporting the search warrant for blood was a clerical error that was
explained by . . . parol evidence.” Because we conclude that the trial court
erroneously applied the law, we will reverse and remand.
II. BACKGROUND
During his 7:00 p.m. to 7:00 a.m. shift that spanned the dates of
September 1, 2013, to September 2, 2013, Carrollton Police Officer William Trim
wrote an affidavit for a search warrant to draw blood from Welborn. Trim’s
pursuit of a search warrant stemmed from him having pulled over Welborn’s
vehicle, allegedly because Trim had witnessed it swerving in and out of a single
lane of traffic. By Trim’s account, further field-sobriety tests led him to believe
that Welborn was driving while intoxicated.
In his “Affidavit for Search Warrant for Blood,” there appear two different
dates for the stop. In the first paragraph, Trim wrote that Welborn committed the
offense of DWI “on or about the 02 day of September, 2013.” Later, in paragraph
five of the affidavit, Trim wrote that the stop occurred “[o]n, Sunday,
September 1, 2013, at approximately 0352 hours.” Yet again, at the end of the
affidavit, Trim signed that he swore to the facts alleged “on this the 2 day of
September, 2013.” Trim also had this page notarized.
After presenting the affidavit to a magistrate, the magistrate issued a
“Search Warrant for Blood.” The warrant incorporated Trim’s affidavit,
commanded the seizure of Welborn, and authorized a compelled blood draw
2
from her person. The warrant states that it was “[i]ssued at 5:30 o’clock A.M. on
this the 2nd day of September, 2013” and was signed by the magistrate.
Later, Welborn filed a motion to suppress the results of the blood draw. In
her motion and at the suppression hearing, Welborn argued that because Trim’s
affidavit stated that his stop of her vehicle occurred on “Sunday, September 1,
2013, at approximately 0352 hours,” and that because the warrant was signed by
the magistrate “at 5:30 o’clock A.M. on this the 2nd day of September, 2013,”
there was a twenty-six hour period between her detention and the issuance of
the warrant. Thus, Welborn argued, under the court of criminal appeals’s
decision in Crider v. State, the results of the blood draw should be suppressed.
352 S.W.3d 704, 707–08 (Tex. Crim. App. 2011) (holding that, due to alcohol’s
dissipation from bloodstream, the lack of specific time in search-warrant affidavit,
which left possible twenty-five hour period between arrest and issuance of
warrant, vitiated probable cause to uphold warrant).
At the suppression hearing, Trim testified that the September 1, 2013 date
was a “clerical error” and that he stopped Welborn’s vehicle at 3:52 a.m. on
September 2, 2013. The trial court granted Welborn’s motion to suppress. In its
findings of fact, the trial court found that Trim’s testimony was “credible and
truthful” and that the “September 1, 2013” date found in his affidavit was a
“clerical error.” In its conclusions of law, however, the trial court stated that it
“relied on Crider” in making its determination to suppress the results of the blood
draw. The State now appeals.
3
III. DISCUSSION
In the determinative part of its sole point, the State argues that the trial
court erred by granting Welborn’s motion to suppress because the “one instance
of the incorrect date in the [warrant’s] supporting . . . affidavit . . . was a clerical
error.” And, the State argues, because the clerical error was explained through
parol evidence and because the trial court found the parol evidence to be true,
the trial court should not have concluded that the results of the blood draw
performed on Welborn should be suppressed. We agree with the State.2
A. Standard of Review and Applicable Law
The police may obtain a defendant’s blood for a DWI investigation through
a search warrant. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002);
see Tex. Code Crim. Proc. Ann. art. 18.01(j) (West 2015); State v. Johnston, 305
S.W.3d 746, 750–51 (Tex. App.—Fort Worth 2009, pet. struck). A search
warrant cannot issue unless it is based on probable cause as determined from
the four corners of an affidavit. U.S. Const. amend. IV; Tex. Const. art. I, § 9;
Tex. Code Crim. Proc. Ann. art. 18.01(b) (West 2015) (“A sworn
affidavit . . . establishing probable cause shall be filed in every instance in which
a search warrant is requested.”); Nichols v. State, 877 S.W.2d 494, 497–98 (Tex.
App.—Fort Worth 1994, pet. ref’d).
2
Welborn did not submit briefing in this case.
4
When reviewing a magistrate’s decision to issue a warrant, we apply the
deferential standard of review articulated by the United States Supreme Court in
Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983). Rodriguez v.
State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007); Swearingen v. State, 143
S.W.3d 808, 810–11 (Tex. Crim. App. 2004). Under that standard, we uphold the
probable cause determination “so long as the magistrate had a ‘substantial basis
for . . . conclud[ing]’ that a search would uncover evidence of wrongdoing.”
Gates, 462 U.S. at 236, 103 S. Ct. at 2331 (citing Jones v. United States, 362
U.S. 257, 271, 80 S. Ct. 725, 736, (1960), overruled on other grounds by U.S. v.
Salvucci, 448 U.S. 83, 100 S. Ct. 2547, (1980)); see Swearingen, 143 S.W.3d at
810.
When reviewing the trial court’s ruling on a motion to suppress when the
trial court made explicit fact findings, as here, we determine whether the
evidence, when viewed in the light most favorable to the trial court’s ruling,
supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim.
App. 2006). We then review the trial court’s legal ruling de novo unless its
explicit fact findings that are supported by the record are also dispositive of the
legal ruling. Id. at 818.
“[T]he Fourth Amendment strongly prefers searches to be conducted
pursuant to search warrants.” State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.
App. 2011). Therefore, “purely technical discrepancies in dates or times do not
automatically vitiate the validity of search or arrest warrants.” Green v. State,
5
799 S.W.2d 756, 759 (Tex. Crim. App. 1990). The two objectives of the law
concerning search warrants are to ensure there is adequate probable cause to
search and to prevent a mistaken execution against an innocent third party. Id.
at 757. These objectives are not furthered by rigid application of the rules
concerning search warrants. Id. at 759. To avoid providing protection to those
whose appeals are based not on substantive issues of probable cause, but
rather, on technical default by the State, we review technical discrepancies under
the totality of the circumstances test enunciated by United States Supreme Court
in Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Green, 799 S.W.2d at 758. Due to
the nature of these technical defects, parol evidence, in the form of explanatory
testimony, may be used to cure the defect. Id. at 760.
B. The Clerical Error Did Not Vitiate Search Warrant’s Validity
In one part of Trim’s affidavit, he wrote that that the stop and the events
giving rise to the stop and arrest of Welborn occurred on September 1, 2013.
Nevertheless, Trim explained at the suppression hearing that the September 1,
2013 date was an error and that the stop actually occurred on September 2,
2013. The trial court found this testimony to be true and specifically found that
the September 1, 2013 date was a “clerical error.” Viewing the evidence in the
light most favorable to the trial court’s findings, these findings of fact are
supported by the record. See Kelly, 204 S.W.3d at 818–19.
The trial court, however, relied on the court of criminal appeals’s decision
in Crider in reaching its legal conclusion that this clerical error vitiated the
6
magistrate’s search warrant. In Crider, the court held that an affidavit in support
of a search warrant that left a possible twenty-five hour gap between the officer’s
stop of Crider and the magistrate’s signing of the search warrant for blood failed
to contain “sufficient facts within its four corners to establish probable cause that
evidence of intoxication would be found in appellant’s blood at the time the
search warrant was issued.” Crider, 352 S.W.3d at 711.
Crider, however, is distinguishable from the facts of the present case
because here “there exists a discrepancy in dates” instead of containing no date
at all. Green, 799 S.W.2d at 760; Crider, 352 S.W.3d at 711. 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. Green, 799 S.W.2d at 761; see Rougeau
v. State, 738 S.W.2d 651, 663 (Tex. Crim. App. 1987) (upholding warrant
because evidence showed affidavit dated January 6, 1977, instead of January 6,
1978, was clearly typographical error), cert. denied, 485 U.S. 1029 (1988),
overruled on other grounds by Harris v. State, 784 S.W.2d 5, 19 (Tex. Crim. App.
1989); Lyons v. State, 503 S.W.2d 254, 256 (Tex. Crim. App. 1973) (upholding
warrant when evidence was introduced to show that the police officer mistakenly
typed “March” instead of “July” on the affidavit); Martinez v. State, 285 S.W.2d
221, 222 (Tex. Crim. App. 1955) (upholding warrant when testimony was offered
that “December” was mistakenly written on warrant affidavit instead of “January”).
7
We hold that because the trial court found, through parol evidence, that the
September 1, 2013 date was a “clerical error” and because it found that the
correct date was September 2, 2013, the trial court should have legally
concluded that the clerical error did not vitiate the search warrant. See 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) (holding that
trial court did not err by denying motion to suppress when trooper testified that
erroneous date on affidavit was a clerical error). Accordingly, we sustain the
State’s sole issue.
IV. CONCLUSION
Having sustained the State’s sole issue, we reverse the trial court’s order
and remand this case to the trial court for further proceedings consistent with this
opinion.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 30, 2015
8