Opinion
No. 07-17-00193-CR No. 07-17-00194-CR
01-30-2018
THE STATE OF TEXAS, APPELLANT v. CRUZ ANTHONY DELEON, APPELLEE
On Appeal from the 242nd District Court Hale County, Texas
Trial Court Nos. B20177-1604 , B20178-1604, Honorable Kregg Hukill, Presiding
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
The State of Texas appeals the trial court's order granting appellee Cruz Anthony Deleon's motion to suppress the results of a blood draw performed pursuant to a warrant. In its sole issue, the State contends that the trial court misapplied Texas search and seizure law when it suppressed the evidence. We will reverse and remand.
Factual and Procedural Background
On the afternoon of December 20, 2015, Deleon was clocked driving more than 90 miles per hour on Interstate 27 in Hale County. Texas State Trooper Malcolm White stopped Deleon's vehicle. When the officer approached the vehicle, he detected a strong odor of alcohol and observed that Deleon's eyes were red, glassy, and bloodshot. The officer also observed that Deleon had one adult passenger and three child passengers in the vehicle.
The officer conducted standard field sobriety tests, concluded that Deleon was intoxicated, and placed him under arrest. After Deleon declined to provide a sample of breath or blood, the officer prepared a search warrant affidavit seeking a blood draw. The affidavit stated, in part, "It is the belief of Affiant, and he hereby charges and accuses that on or about the 20 day of December, 2015 at [ ] 12:00 AM, that the above described suspected party did then and there operate a motor vehicle in a public place while intoxicated." Elsewhere, the affidavit read, "On the 20 day of December, 2015, at 12:00 AM I came into contact with the suspected party at IH-27 MM 48. . . ." A Hale County justice of the peace issued a search warrant based on Trooper White's affidavit at 5:04 p.m. on December 20, 2015. A blood specimen was then withdrawn.
Deleon was charged with two counts of driving while intoxicated with a passenger younger than 15 years old. He filed a pretrial motion to suppress the evidence from the blood draw. The trial court granted Deleon's motion, and the State filed this appeal.
TEX. PEN. CODE ANN. § 49.045 (West 2011).
Standard of Review
When reviewing a trial court's ruling on a motion to suppress evidence, we generally use a bifurcated standard of review, affording deference to the trial court's determination of historical facts and reviewing de novo the application of law to the facts. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). However, when the question before the trial court is whether probable cause supported the issuance of a search warrant, the trial court does not make credibility determinations but is instead limited 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)). When we review a magistrate's decision to issue a warrant, we apply a highly deferential standard; we will uphold the magistrate's probable cause determination as long as the magistrate had a substantial basis for determining that probable cause existed. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004).
Analysis
In his motion to suppress, Deleon asserted that the affidavit in support of the warrant was insufficient to establish probable cause that evidence of intoxication would be found in his blood at the time the search warrant was issued. Deleon argued that, since the affidavit stated Trooper White encountered Deleon at 12:00 a.m. on December 20 and the warrant was issued at 5:04 p.m. later that day, it appeared that a full 17 hours had elapsed since the officer observed signs of intoxication. Because of this apparent lapse of time, Deleon contended, the magistrate could not have had a substantial basis for determining that evidence of intoxication would be in Deleon's blood at the time the warrant was issued.
At the evidentiary hearing on the motion to suppress, Trooper White testified without objection that he encountered and stopped Deleon around 4:09 p.m., not at 12:00 a.m., on December 20, 2015. The officer testified that the "12:00 a.m." notation on the search warrant affidavit was a typographical error that occurred when he created the document. Trooper White further stated that he corrected the error in his later report. There was no controverting evidence suggesting that the traffic stop actually occurred at 12:00 a.m. or that the "12:00 a.m." entry on the affidavit was not erroneous.
Following the hearing, the trial court issued findings of fact and conclusions of law. The trial court found, "There is no contradictory information or evidence in the affidavit regarding the time of the contact or stop at 12:00 a.m. on December 20, 2015." It further found, "Within the four (4) corners of the affidavit in support of the warrant for the blood of defendant, 17 hours and 4 minutes elapsed from the stated time of the stop to the signing of the warrant." The court made the following conclusion of law: "Because there is no contradictory information or evidence that the traffic stop or contact occurred at any time other than 12:00 a.m. on December 20, 2017 [sic], extrinsic evidence is not admissible to explain any typographical or other clerical error in the preparation of the affidavit."
In reviewing the sufficiency of an affidavit to support a search warrant, the trial court is generally limited to considering only what is contained within the four corners of the affidavit. McLain, 337 S.W.3d at 271. However, courts are "instructed not to analyze the affidavit in a hyper-technical manner." Id. (noting deferential standard consistent with constitutional preference for a warrant).
The Court of Criminal Appeals has held that technical defects in a warrant may be cured by explanatory testimony that shows the error was typographical. Green v. State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990) ("purely technical discrepancies in dates or times do not automatically vitiate the validity of search or arrest warrants"). In Salzido v. State, we applied the reasoning in Green to permit testimony showing that the probable cause affidavit supporting the warrant contained typographical errors. Salzido v. State, No. 07-10-00031-CR, 2011 Tex. App. LEXIS 3549 (Tex. App.—Amarillo May 11, 2011, pet. ref'd) (mem. op., not designated for publication). In Salzido, the search warrant affidavit identified the suspected person as both "John A. Hoover" and "Dionisio Salzido," and recited two different encounter dates, June 7 and August 7. Id. at *4-5. At the suppression hearing, the trial court heard testimony from the officer who prepared the affidavit that the name and date errors occurred because he inadvertently failed to delete a previously-used name and date from his document template. Id. The trial court determined that the errors were clerical and denied the motion to suppress. Id. at *5-6. We affirmed, holding that the court properly considered the officer's testimony explaining that the errors in the affidavit were clerical or typographical. Id. at *14-15.
Other courts have likewise extended the rationale of Green to apply to typographical errors in supporting affidavits. See Somoza v. State, 481 S.W.3d 693, 703 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (trial court properly allowed officer's testimony to explain typographical error reflecting time of stop at 11:59 a.m. instead of 11:59 p.m. on probable cause affidavit); State v. Welborn, No. 02-14-00464-CR, 2015 Tex. App. LEXIS 8001, at *8 (Tex. App.—Fort Worth July 30, 2015, pet. ref'd), cert. denied, Welborn v. Texas, 136 S.Ct. 1672, 194 L.Ed.2d 768 (U.S. 2016) (mem. op., not designated for publication) (holding that trial court should have concluded that the clerical error in the date of the alleged offense listed in the probable cause affidavit did not vitiate the search warrant).
Deleon urges that explanatory testimony may only be allowed in cases where there are discrepancies within the affidavit or warrant, e.g., the use of differing names, dates, or times on the face of the document. However, the cases addressing this issue have not established such a limitation.
Therefore, we hold that the trial court erred in concluding that extrinsic evidence could not be considered in determining whether the time reflected on the probable cause affidavit was a typographical error.
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.
Per Curiam Do not publish.