Opinion
No. 13-07-00328-CR
Opinion delivered and filed December 18, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 130th District Court of Matagorda County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and BENAVIDES. Memorandum Opinion by Chief Justice VALDEZ.
MEMORANDUM OPINION
A jury convicted appellant, Harry Murphy, of possession of a controlled substance with intent to deliver and assessed punishment at sixty years' imprisonment and a $10,000 fine. See Tex. Health Safety Code Ann. § 481.112 (Vernon 2003). By three issues, Murphy challenges the trial court's denial of his motion to suppress and the legal and factual sufficiency of the evidence supporting his conviction. We affirm.
I. Background
In June 2006, Matagorda County Sheriff's deputies received reports that Murphy sold cocaine. Sergeant Richard Morales, a narcotics investigator, set up a sting operation with the help of a "cooperating individual" (hereinafter "the C.I."). On June 20, 2006, the C.I. called Murphy and arranged to purchase an ounce of cocaine for $550; the transaction was to take place later that day at a carwash in Bay City. After the C.I. spoke to Murphy, Sergeant Robbie Galvan, a narcotics investigator, began surveillance on Murphy. Sergeant Galvan witnessed Murphy drive to his home, exit his car, enter his home, and return to his car three to four minutes later. When Murphy left his home, another sheriff's department officer followed him. Deputy Kurtis Brown witnessed Murphy commit a rolling stop and turn without using his blinker; Deputy Brown pulled Murphy over for the traffic violations, and he asked Murphy to exit the vehicle for a search. When Murphy exited, two plastic bags containing a powder substance fell from his shorts. Murphy was arrested and transported to jail. After Murphy was arrested, Sergeant Morales signed an affidavit and presented it to a justice of the peace, who signed a warrant to search Murphy's home at 2:25 p.m. Sheriff's deputies searched Murphy's home, and they discovered drug paraphernalia and a white substance in a bag within an oven mitt. The record contains Sergeant Morales's report, which states that "[a]t about 02:24P.M., reporting officer located a pyrex measuring cup, coffee cup containing a white substance residue, a fork containing a white substance residue, a spoon containing a white substance residue, and a digital scale (used to measure weight) inside a kitchen." Murphy was indicted for possession of a controlled substance with intent to deliver. Id. Before trial, Murphy filed a motion to suppress the items found at his home, alleging they were the result of an illegal search. In his motion, Murphy argued that the search was conducted before the search warrant was signed. To support this argument, Murphy pointed to time discrepancies between Sergeant Morales's affidavit and the search warrant. The trial court denied Murphy's motion. A jury found him guilty and assessed punishment at sixty years' imprisonment and a $10,000 fine. The trial court entered a judgment of conviction and sentence according to the jury's verdict. This appeal ensued.II. Suppression
By Murphy's third issue, he contends that the trial court erred in denying his motion to suppress because the search was conducted before the search warrant was signed. The State argues that the time discrepancies are "typos" and technicalities that do not vitiate the search warrant. It points to Sergeant Morales's testimony at trial, where the following exchange occurred between him and the State:Q: How did that — how did you determine when to start the search of the residence of Harry Murphy?
A: After the search warrant was signed.
Q: And how is it that you know that it was after the search warrant was signed?
A: I made a clerical error on the report.
Q: Okay. So the time was 2:24 —
A: Yes, sir.
Q: — on your report; is that an error?
A: Yes, sir, it is.
Q: And how is it that you know that's an error?
A: Because on the evidence itself that I had logged the time on, it says 2:45.We review a trial court's decision on a motion to suppress evidence for abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006); Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). In reviewing the trial court's decision, we view the record in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). We afford almost total deference to the trial court's determination of the historical facts that the record supports. Id. A typographical error will not vitiate an arrest or search warrant. Rougeau v. State, 738 S.W.2d 651, 663 (Tex.Crim.App. 1987). A search warrant may be valid despite discrepancies if there is testimony in the record that shows that a discrepancy in time or date is merely a matter of technical or clerical error. See Green v. State, 799 S.W.2d 756, 760 (Tex.Crim.App. 1990). That is the case here. The trial court heard testimony from Sergeant Morales explaining that the discrepancy was a typographical error and that the search did not begin until after the justice of the peace executed the search warrant. The trial court, as the sole trier of fact and judge of Sergeant Morales's credibility at the suppression hearing, was entitled to believe Sergeant Morales's testimony. See Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App. 2007). Murphy's third issue is overruled.