                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                                     No. 07-11-0192-CR
                                ________________________


                               CHARLES BIBLE, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 364th District Court
                                    Lubbock County, Texas
                 Trial Court No. 2010-429098, Honorable Blair Cherry, Presiding


                                         April 8, 2013

                              MEMORANDUM OPINION
                         Before Quinn, C.J., and Campbell and Pirtle, JJ.

          Appellant Charles Bible appeals from his jury conviction of the offense of

possession of a controlled substance with intent to deliver, in the amount of four grams

or more but less than two hundred grams and the resulting sentence of forty-five years

of imprisonment. Through three issues, appellant contends the trial court erred. We will

affirm.
                                      Background


      On February 5, 2010, Lubbock police officers obtained a search warrant for an

apartment. A narcotics officer with the department wrote the affidavit requesting the

warrant and signed it in front of a Lubbock County Court-at-Law judge. As presented to

the judge, the jurat on the affidavit read, “SWORN AND SUBSCRIBED to before me,

the undersigned authority, on this ___ day of ___, 2009.” Likewise, the signature block

on the warrant contained a line reading, “ISSUED AT ____ o’clock,__.M. on this___ day

of ___ 2009, to certify which witness my hand.” The judge completed the jurat on the

affidavit by writing in the day and month, 1 and completed the signature block on the

warrant by writing in the time, day and month, 2 then signed the jurat and the warrant.

Neither the officer nor the judge noticed, however, that the year printed on the jurat and

warrant was 2009, not 2010. Consequently, the jurat and warrant contained the

incorrect date of February 5, 2009 rather than the dates of their actual signing, February

5, 2010. No other dates appear in either document.


      Officers executed the warrant at the apartment on February 9, 2010. Officers

encountered, and apprehended, an individual named Rochelle Green as she was

leaving the apartment. Inside, they found appellant in the bedroom, and arrested him

as well. In the apartment they also found large amounts of cash, digital scales, drug


      1
        As completed, the jurat reads, “SWORN AND SUBSCRIBED to [sic] before me,
the undersigned authority, on this 5th day of Feb., 2009.”
      2
       As completed, the line on the search warrant reads, “ISSUED AT 3:37 o’clock,
P.M. on this 5th day of Feb., 2009, to certify which witness my hand.”




                                            2
paraphernalia, fifty grams of cocaine in three locations, and marijuana. The officers also

seized a letter from appellant, addressed to Green at the apartment, in which appellant

referred to himself as “Rat Dog” and said he had “the best dope around.”


       Appellant plead not guilty and opted to be tried by a jury. 3 Prior to trial, appellant

filed a motion to suppress the evidence found during the search, pointing to the

discrepancy in the dates. The trial court denied his motion. Before closing arguments,

appellant requested a jury instruction requiring the jury to make a factual determination

about the validity of the search warrant, again pointing out the discrepancy in the dates.

The trial court denied the request.


       The letter from appellant to Green was admitted into evidence.              Appellant

objected to its admission and the trial court overruled several of his objections. The

letter was admitted with redactions. The redactions are not at issue on appeal.


                                             Analysis


Denial of Motion to Suppress


       In appellant’s first issue, he asserts that the affidavit and search warrant were

dated February 5, 2009 but the warrant was not executed until February 9, 2010. He

contends that from the face of the documents, it appears 371 days elapsed from the

date the warrant was signed to the date it was executed, a period of time well outside

the statutory limit. Appellant argues that because the court did not hear testimony or



       3
         Appellant’s indictment included two enhancement paragraphs to which he plead
true at the punishment stage of trial.


                                              3
receive evidence other than the affidavit and search warrant at the hearing on his

motion to suppress, it abused its discretion in denying his motion.


       We review a trial court’s ruling on a motion to suppress using an abuse of

discretion standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006). The

trial court’s ruling will be sustained if it is reasonably supported by the record and is

correct on any theory of law applicable to the case. Id. Almost total deference is given

to a trial court’s express or implied determinations of historical facts, and the trial court’s

application of the law of search and seizure to those facts is reviewed de novo. State v.

Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 88

n.3; 90-91 (Tex.Crim.App. 1997).


       A search warrant must be executed within three days “from the time of its

issuance” unless the period is shortened by the magistrate. Tex. Code Crim. Proc. Ann.

art 18.06(a) (West 2011). The time allowed for execution of the warrant, however, is

“three whole days,” exclusive of the day of its issuance and the day of its

execution. Tex. Code Crim. Proc. Ann. art. 18.07 (West 2011). When a search warrant

is not executed within the time period allowed, it becomes "functus officio," having no

further official force or effect. Green v. State, 799 S.W.2d 756, 759 (Tex.Crim.App.

1990). If the legality of a search depends on a warrant that has become functus officio,

that search is unauthorized. Id.


       When the validity of a search warrant is questioned, "the warrant and supporting

affidavit must be read together and a determination of validity is made according to the

totality of the circumstances, the yardstick of measurement with the question of



                                              4
probable cause." Id. at 760. Purely technical discrepancies in dates or times do not

automatically vitiate the validity of the search. Id. at 759; Salzido v. State, No. 07-10-

0031-CR, 2011 Tex.App. LEXIS 3549 (Tex.App.—Amarillo May 11, 2011, no pet.)

(mem. op., not designated for publication). Due to the nature of such technical errors, a

trial court is allowed to hear explanatory testimony, which may cure the defect. Id. at

760.


       Courts have found the same types of facial discrepancies as those in this case to

be cured through explanatory testimony. See, e.g., Rougeau v. State, 738 S.W.2d 51,

663 (Tex.Crim.App. 1987) (upholding warrant because evidence showed affidavit dated

January 6, 1977, instead of January 6, 1978, was clearly a typographical error),

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) (affirming trial court's

judgment that facial discrepancy due to incorrectly dated search warrant was cured by

explanatory testimony of police officer requesting warrant); Martinez v. State, 162 Tex.

Crim. 356, 285 S.W.2d 221, 222 (Tex.Crim.App. 1955) (holding that incorrectly dated

jurat to supporting affidavit would not "vitiate the warrant" based on explanatory

testimony heard by trial court).


       A trial court’s ruling on a suppression issue is not a final judgment and does not

necessarily involve an ultimate issue in a criminal prosecution. State v. Rodriguez, 11

S.W.3d 314, 322 (Tex.App.—Eastland 1999, no pet.); McKown v. State, 915 S.W.2d

160 (Tex.App.—Fort Worth 1996, no pet.). A trial court may reconsider its pretrial

suppression hearing ruling if it appears necessary to the due administration of justice.

Montalvo v. State, 846 S.W.2d 133, 137 (Tex.App.—Austin 1993, no pet.).

                                            5
      At the hearing on appellant’s motion to suppress, appellant asked the trial court

to look at the date on the search warrant and affidavit. The court examined the

documents and inquired of the State the date of the execution of the search warrant.

The prosecutor responded it was executed on February 9, 2010. The court asked if the

warrant was executed “[f]our days after it was issued” and the State answered

affirmatively. The court did not hear any evidence at that time and denied the motion

after considering the documents and the State’s answers to its questions.


      At trial, the parties revisited the issue of the discrepancy in the dates. The officer

who prepared the affidavit and search warrant told the court, “[t]he search warrant was

executed on February the 9th of 2010.” The officer further testified the 2009 year on the

search warrant was an “error” that “was something that wasn’t caught by myself or the

judge who signed it.”


      Here, even if the trial court had erred by denying appellant’s pre-trial motion to

suppress without hearing more formal and direct evidence concerning the dates, the

trial court was free to reconsider its ruling when additional evidence was introduced at

trial. Testimony was offered at trial to explain the discrepancy. The incorrect dates on

the affidavit and warrant were the type of purely technical errors that may be explained

and the explanation may be considered among the totality of the circumstances

determining the validity of the warrant. Green, 799 S.W.2d at 760. The court properly

heard evidence outside the instruments themselves to explain the discrepancy. Id. The

officer’s testimony that the warrant was issued and executed in 2010, not a year earlier,

and that the conflicting date was a typographical error, was undisputed. Because the



                                            6
court thus did not err by overruling the motion to suppress, we overrule appellant’s first

issue.


Denial of Requested Jury Instruction


         In addition to raising the issue pre-trial, however, appellant requested an

instruction pursuant to article 38.23(a), to permit the jury to resolve the issue of the date

of the warrant’s issuance. Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2011). The

trial court denied appellant’s request, stating that the 2009 date on the warrant “boils

down to the typographical error.” In appellant’s second issue on appeal, he argues the

trial court erred in denying his request.


         In our review of alleged jury charge error, we first determine whether the charge

contains error. Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App. 2009); Ngo v.

State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). If it does, then we must determine

whether the appellant suffered harm. Barrios, 283 S.W.3d at 350; Almanza v. State,

686 S.W.2d 157, 171 (Tex.Crim.App. 1985). If there was error and appellant objected to

the error at trial, reversal is required if the error "is calculated to injure the rights of the

defendant," which courts have defined to mean that there is "some harm." Almanza, 686

S.W.2d at 171. Harm from a charge error consisting of the failure to include an article

38.23 instruction is evaluated under the Almanza analysis.            Atkinson v. State, 923

S.W.2d 21, 27 (Tex.Crim.App. 1996). When considering the actual degree of harm, we

examine (1) the entire jury charge, (2) the state of the evidence, including the contested

issues and weight of probative evidence, (3) the argument of counsel and (4) any other




                                               7
relevant information revealed by the record of the trial as a whole.           Almanza, 686

S.W.2d at 171.


      A trial court must give an article 38.23 instruction if the evidence raises a

disputed fact issue about whether evidence was lawfully obtained. Tex. Code Crim.

Proc. Ann. art. 38.23 (West 2011); Madden v. State, 242 S.W.3d 504, 510

(Tex.Crim.App. 2007). A defendant is entitled to the submission of a jury instruction

under article 38.23 if: (1) the evidence heard by the jury raises a fact issue; (2) the

evidence on that fact is affirmatively contested; and (3) that contested factual issue is

material   to    the   lawfulness   of   the       challenged   conduct   in   obtaining   the

evidence. Madden, 242 S.W.3d at 510. "[I]f other facts, not in dispute, are sufficient to

support the lawfulness of the challenged conduct, then the disputed fact issue is not

submitted to the jury because it is not material to the ultimate admissibility of the

evidence." Id. Thus, the disputed fact must be essential to determining the lawfulness of

the challenged conduct. Id. at 511. A court considers only the evidence heard by the

jury to determine whether an article 38.23 instruction should be given. Madden, 242

S.W.3d at 510.


      During cross-examination of a State’s witness, appellant’s counsel introduced the

search warrant affidavit and search warrant into evidence. The warrant and affidavit

were admitted and published to the jury. So, before the jury were arrayed the 2009

dates on the affidavit and warrant, as against the undisputed testimony of the person

who prepared the affidavit that those dates were typographical errors and the

documents actually were signed four days before the warrant was executed, and

appellant arrested, in 2010.

                                               8
       Assuming, without deciding, that the 2009 date appearing on the affidavit and

warrant are, in this context, the type of affirmative evidence required to raise a disputed

fact issue under article 38.23, see Madden, 242 S.W.3d at 513, and further assuming,

without deciding, that the trial court erred by not instructing the jury pursuant to article

38.23, we would be unable to agree with appellant he suffered any harm from the error.

As noted, assessment of harm requires, inter alia, consideration of the entire record of

evidence before the jury. The record is abundantly clear that the search occurred in

February 2010, not a year earlier. Indeed, some items seized during the search,

including a letter postmarked in July 2009, establish that fact conclusively. And nothing

in the record, except for the printed year 2009 appearing on the affidavit and warrant,

even suggests that the events described in the affidavit occurred a year before the

search. As noted, no evidence disputed the testimony of the officer who prepared and

presented the affidavit that the 2009 date was a typographical error. Taking the record

as a whole, we see no harm to appellant flowing from the omission of an article 38.23

instruction asking the jury to determine whether the affidavit and warrant were signed in

2009. We resolve appellant’s second issue against him.


Admission of Letter


       In appellant’s last issue, he argues the trial court’s admission of appellant’s letter

to Green was error. The letter is dated in July 2009, some seven months before the

search.   In response to objections raised by appellant, the letter was redacted to

remove some information, including the return address indicating appellant was

incarcerated when he wrote it. After the redactions, the letter the jury saw still contained

appellant’s reference to himself as “Rat Dog” and his statement that, at an unspecified

                                             9
time, he had the “best dope around.” Appellant argues the letter was not relevant, and

that it should have been excluded under Rule of Evidence 403.


      Appellate courts review a trial court’s ruling on the admission of evidence using

an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153 (Tex.Crim.App.

2001). The trial court’s evidentiary ruling must be upheld if it is within the “zone of

reasonable disagreement.”      Id.; Montgomery v. State, 810 S.W.2d 372, 386-87

(Tex.Crim.App. 1991) (op. on reh’g).


      Under the Texas Rules of Evidence, evidence is relevant if it makes the

existence of a fact that is of consequence to the determination of the action more

probable than it would be without the evidence. See Tex. R. Evid. 401; Watterson v.

State, No. 07-07-0153-CR, 2009 Tex.App. LEXIS 2938, at *7 (Tex.App.--Amarillo April

29, 2009, no pet.) (mem. op. not designated for publication) (citing Moses v. State, 105

S.W.3d 622, 625 (Tex.Crim.App. 2003)).


      Addressing an objection under Rule 403, the court determines whether the

probative value of the complained-of evidence is substantially outweighed by the danger

of unfair prejudice. Tex. R. Evid. 403. The balancing test involves these factors: 1) the

inherent probative force of the proffered item of evidence along with 2) the proponent's

need for that evidence against 3) any tendency of the evidence to suggest decision on

an improper basis, 4) any tendency of the evidence to confuse or distract the jury from

the main issue, 5) any tendency of the evidence to be given undue weight by a jury that

has not been equipped to evaluate the probative force of the evidence, and 6) the

likelihood that presentation of the evidence will consume an inordinate amount of time



                                           10
or repeat evidence already admitted. See Casey v. State, 215 S.W.3d 870, 880

(Tex.Crim.App. 2007).


       Appellant was tried for the offense of possession of a controlled substance with

intent to deliver. Although appellant was present in the apartment at the time of the

search, the one-bedroom apartment was leased in Green’s name, and two other men

were listed in the search warrant as the subjects of the search. As is apparent from his

cross-examination of State’s witnesses, appellant attempted at trial to distance himself

from Green and the drugs and paraphernalia found in the apartment, and to suggest

their greater connection with Green and perhaps others. The letter, in which appellant

expressed his love for Green, had probative value to link appellant with Green, and by

extension, with her apartment and its contents.         In the context of the letter, his

statement he had the “best dope around” can be seen as indicative of a willingness to

provide Green and perhaps others with “dope,” further connecting him with Green and

suggesting an intent to deliver. The trial court did not abuse its discretion by determining

the evidence was relevant. Tex. R. Evid. 401; Salazar, 38 S.W.3d at 153.


       Nor can we accept appellant’s contention the trial court committed an abuse of

discretion by concluding the letter’s probative value was not substantially outweighed by

the danger of unfair prejudice. Tex. R. Evid. 403. Containing appellant’s own words

describing his love for Green and his great desire to be with her, the letter is strongly

probative to rebut any contention his presence in the one-bedroom apartment was

merely fortuitous. In addition to its probative value as an indicator of a willingness to




                                            11
deliver “dope,” 4 appellant’s description of the “dope” he possessed as the “best around”

tends to show his knowledge of illegal drugs. The letter thereby assisted the State with

its proof appellant’s possession of these drugs was “knowing,” as the indictment

alleged. The evidence thus addressed main issues in the case, and did not distract the

jury from the main issues, nor do we see any tendency of the letter to suggest the jury

decided appellant’s guilt on an improper basis. Finally, the presentation of the letter

took a minimal amount of time when it was read aloud and involved only the additional

testimony of an officer explaining the meaning of “dope” and other terms relevant to

dealing contraband. Having considered all the factors, we see no merit in appellant’s

Rule 403 objection.    Casey, 215 S.W.3d at 880; Montgomery, 810 S.W.2d at 391.

Accordingly, we overrule appellant’s third issue.


                                       Conclusion


       Having resolved each of appellant’s issues against him, we affirm the judgment

of the trial court.




                                                 James T. Campbell
                                                     Justice


Do not publish.




       4
        Evidence of intent is generally shown by circumstantial evidence. Gaither v.
State, 383 S.W.3d 550, 553 (Tex.App.—Amarillo 2012, no pet.).


                                            12
