Concurring 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


                          CONCURRING OPINION

      When evaluating the sufficiency of an affidavit to support a search warrant,

the well-established general rule precludes reliance upon extraneous evidence to

support the warrant. Following that rule, I would find the four corners of the
affidavit in this case sufficient to support the search warrant. Accordingly, I concur

in the judgment.

      When a challenge is made to the legal sufficiency of a search warrant in

Texas, the trial court is limited to looking within the “four corners” of the affidavit.

Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App. 2003). The general rule

is that “an otherwise insufficient [warrant] affidavit cannot be rehabilitated by

testimony concerning information possessed by the affiant when he sought the

warrant but not disclosed to the issuing magistrate. . . . A contrary rule would, of

course, render the warrant requirements of the Fourth Amendment meaningless.”

Whiteley v. Warden, 401 U.S. 560, 565 n.8, 91 S. Ct. 1031, 1035 (1971). Article

18.01(b) of the Code of Criminal Procedure requires that information leading to a

probable cause determination be recorded precisely so “that the search will not be

later justified by information that was never called to the attention of the

constitutionally mandated neutral magistrate.” Clay v. State, 391 S.W.3d 94, 100

n.21 (Tex. Crim. App. 2013). The only exception is when there is a challenge

based on a known falsehood within the affidavit, which allows consideration of

evidence outside the four corners of the affidavit. Cates, 120 S.W.3d at 355 n.3.

Here, Somoza does not challenge the affidavit based on a known falsehood; rather,

he accepts it at face value and argues that it defeats probable cause.




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      Both the Court of Criminal Appeals and the U.S. Supreme Court thus have

cautioned against using extrinsic testimony to supplement or rehabilitate a

defective affidavit. Allowing oral testimony to supplement the affidavit at a

suppression hearing opens the door to further testimonial correction of affidavits

beyond clerical errors. Such a procedure could be prone to abuse. See WAYNE R.

LAFAVE,    2    SEARCH    AND     SEIZURE:    A   TREATISE     ON    THE   FOURTH

AMENDMENT § 4.3(a), at 640 (5th ed. 2012).

      In this case, the court relies upon cases referring to defects in a search

warrant for the proposition that purely technical defects can be remedied by sworn

testimony. See, e.g., Green v. State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990).

While these authorities permit testimony to explain a defect in a warrant, they do

not justify similar testimony to explain substantive defects in an affidavit used to

obtain the warrant.

      This case can be resolved under the guidelines of McLain v. State, 337

S.W.3d 268 (Tex. Crim. App. 2011), in which the Court of Criminal Appeals

instructed us to interpret affidavits “in a commonsensical and realistic manner,

recognizing that the magistrate may draw reasonable inferences.” McLain, 337

S.W.3d at 271 (quoting Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App.

2007)). Appellate courts are required to defer to all reasonable inferences that

magistrate could have made and give “great deference” to the magistrate’s finding



                                         3
of probable cause. Id. A highly deferential reading of the facts on the face of the

affidavit here is sufficient to affirm the trial court.

       Officer Rodriguez stated in his affidavit that he had reason to believe

Somoza was driving while intoxicated “on or about July 31, 2013 at 11:59 AM.”

Officer Rodrgiuez further stated that he was “on patrol” at the time he observed

this. Somoza admitted that he drank two beers. Officer Rodriguez was trained and

had experience with drawing blood to determine a person’s level of intoxication.

His affidavit stated a belief, based on all his observations, that a blood sample

would provide evidence of Somoza’s state of intoxication, as well as the type of

substance consumed. The affidavit was sworn and subscribed on August 1, 2013 at

1:38 a.m.

       Taken at face value, the affidavit establishes that 13.5 hours passed between

the observation of intoxicated driving and the execution of the affidavit. If the

affidavit were correct in this regard, it would mean that Officer Rodriguez

implausibly worked a minimum of 13 hours before swearing out his affidavit. That

literal reading also would significantly undercut Officer Rodriguez’s stated belief

that a blood draw would lead to evidence of intoxication, contrary to the common

sense that magistrates are expected to use in evaluating the affidavit. Taking the

affidavit literally also would mean that Somoza had admitted to drinking two beers




                                             4
in the morning. While not entirely unheard-of, * most people don’t drink beer

before noon.

      Drawing all of these observations from within the four corners of the

affidavit supports the reasonable inference that the stated time was a single-

character typographical error and “PM” was intended instead of “AM.” Reading

“11:59 AM” to have meant “11:59 PM” resolves the inconsistencies arising from a

literal reading. The magistrate could have made these reasonable inferences in the

course of making his probable cause determination, and we are required to defer to

such inferences. The information within the four corners of the affidavit is

sufficient to conclude that probable cause existed to support the warrant.

      I would affirm the trial court’s ruling without considering the extrinsic

evidence adduced at the suppression hearing.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Justice Massengale, concurring.

Publish. TEX. R. APP. P. 47.2(b).


*
      See, e.g., ALAN JACKSON & JIMMY BUFFETT, IT’S FIVE O’CLOCK
      SOMEWHERE (Arista Nashville 2003).

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