                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-10-00183-CR


MICHAEL CURTIS SCHORNICK                                            APPELLANT

                                          V.

THE STATE OF TEXAS                                                        STATE


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            FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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                           MEMORANDUM OPINION1
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                                  I. INTRODUCTION

      Appellant Michael Curtis Schornick appeals his conviction for felony driving

while intoxicated (DWI). In a single point, Schornick argues that the trial court

erred by denying his motion to suppress the results of a blood test. We will

affirm.



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          See Tex. R. App. P. 47.4.
                    II. FACTUAL & PROCEDURAL BACKGROUND

        At 2:04 a.m. on January 31, 2009, Schornick was arrested for DWI. That

same day, the arresting officer, Texas Department of Public Safety Trooper Juan

Flores, filled out an affidavit for a search warrant for Schornick‘s blood, had it

notarized, and faxed it to the magistrate. The magistrate issued the warrant that

day, and the phlebotomist drew Schornick‘s blood that day. In the supporting

affidavit, Trooper Flores described the events substantiating probable cause, but

he wrote that the stop occurred on January 31, 2008, rather than January 31,

2009.

        This discrepancy between the year Trooper Flores wrote in the affidavit

and the year the magistrate was presented with that affidavit became the subject

of a hearing on Schornick‘s motion to suppress. At the hearing, the State called

Trooper Flores to testify about the discrepancy. Trooper Flores testified that he

arrested Schornick in the early morning hours of January 31, 2009 and that he

simply made a clerical error in writing ―2008‖ as the year. Trooper Flores testified

that, on the morning that he faxed the affidavit for the search warrant to the

magistrate, he first called the magistrate and informed him that a suspect had

refused to give a blood sample and that he was faxing over a ―search warrant

packet.‖

        The trial court denied the motion to suppress and made the following

findings of fact and conclusions of law:




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                                 FINDINGS OF FACT

               The court finds as a matter of fact that all of the events
               described in the search warrant affidavit occurred on
               January 31, 2009, and that the error in the date on the
               affidavit was a clerical error made by Trooper Flores in
               completing his paperwork.

                               CONCLUSIONS OF LAW

               In light of the totality of the circumstances, including the
               dates on the fax time stamps on both the affidavit and
               warrant, the date listed by the notary on the affidavit as
               the date sworn, the date on the warrant itself, the nature
               of the Parker County felony DWI search warrant
               program in which Judge Akers was a participant, and
               the explanatory testimony of Trooper Flores revealing
               that the discrepancy here was a clerical or typographical
               error, the Court concludes as a matter of law that the
               incorrect dates placed on the affidavit by Trooper Flores
               were sufficiently explained to be mere clerical or
               typographical errors and that the totality of the
               circumstances supports the sufficiency of the probable
               cause determination of Judge Akers, the issuing
               magistrate. Therefore the present search warrant was
               validly issued based on probable cause not
               withstanding the above-described discrepancy in dates.

      Schornick entered a plea of ―guilty‖ pursuant to a plea bargain and a plea

of ―true‖ to the enhancement allegations. The trial court sentenced Schornick to

thirty years‘ confinement. Schornick now appeals the denial of his pretrial motion

to suppress.




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                            III. MOTION TO SUPPRESS

      In his sole point, Schornick argues the trial court erred by denying his

motion to suppress because the information contained within the four corners of

the underlying affidavit failed to establish the requisite probable cause necessary

for the issuance of a search warrant. Specifically, Schornick argues that the

information contained in the supporting affidavit was ―stale‖ because the date on

the affidavit was January 31, 2008, rather than January 31, 2009.

                     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) (Vernon Supp. 2010); State v.

Johnston, 305 S.W.3d 746, 750 (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) (―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 (Tex. App.—Fort Worth

1994, pet. ref‘d).

      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


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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 (quoting 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.

       ―[P]urely technical discrepancies in dates or times do not automatically

vitiate the validity of search or arrest warrants.‖ Green v. State, 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.   These

objectives are not furthered by rigid application of the rules concerning search

warrants. Id. To avoid providing protection to those whose appeals are based

not on substantive issues of probable cause, but rather, on technical default by


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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

      The affidavit prepared in this case stated that the stop, and the events

giving rise to the stop and subsequent arrest, of Schornick occurred on January

31, 2008. Nevertheless, Trooper Flores explained this error at the suppression

hearing; he testified that the events leading up to Schornick‘s arrest occurred on

January 31, 2009, rather than one year earlier as stated in the affidavit, and that

the discrepancy in the year in the affidavit was a clerical error.        He further

testified that he had never met or arrested Schornick in January 2008.           The

affidavit was notarized and faxed to the magistrate on January 31, 2009, and the

warrant was signed by the magistrate and faxed back to the officer on January

31, 2009. Every page of the affidavit and subsequent warrant bore a date stamp

from the fax machine of January 31, 2009, on the top of each page.

      We hold that the trial court properly considered Trooper Flores‘s testimony

explaining why the conflicting date was a clerical error and that the evidence,

viewed in the light most favorable to the trial court‘s fact findings, supports the

trial court‘s finding that the error in the date on the affidavit was a clerical error

made by Trooper Flores in completing his paperwork. See Kelly, 204 S.W.3d at


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818–19; Green, 799 S.W.2d at 760. Because this clerical error is not the type of

mistake that would invalidate the search warrant, we therefore hold that the trial

court did not err by denying Schornick‘s motion to suppress. 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. 1020 (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‖); cf.

Green, 799 S.W.2d at 757 (holding warrant was not supported by probable cause

because State failed to demonstrate why affidavit dated five days prior to search

warrant‘s execution was clerical error).    Accordingly, we overrule Schornick‘s

sole point.




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                                   IV. CONCLUSION

      Having overruled Schornick‘s sole point, we affirm the trial court‘s order

denying his motion to suppress.


                                                 SUE WALKER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 4, 2010




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