                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-11-00053-CR

ROBERT ROMERO,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 09-04686-CRF-361


                         MEMORANDUM OPINION


      A grand jury indicted Appellant Robert Romero for the offenses of possession

with intent to deliver over 400 grams of cocaine (count 1) and possession of less than

five pounds but more than four ounces of marijuana (count 2). The indictment alleged

two prior felony convictions for purposes of enhancement of punishment.

      A jury found Romero guilty and also found that he committed the offense within

1,000 feet of a school and used or exhibited a deadly weapon. Punishment was to the

trial court, which found the enhancement paragraphs true and assessed punishment on
each count at 62 years (to run concurrently) and a $25,000 fine on count 1. The trial

court entered separate judgments on each count. Asserting two issues, Romero appeals.

                                         Suppression

       College Station Police Detective Robert Wilson, who had been investigating

Romero, obtained a search warrant for Romero’s home on September 10, 2009.1 The

warrant was executed the next day, and the cocaine and marijuana were seized.

       In his first issue, Romero asserts that the trial court abused its discretion in

denying his motion to suppress that sought suppression of the evidence seized at

Romero’s home under the search warrant. Romero’s motion asserted that Detective

Wilson’s search-warrant affidavit did not set forth probable cause because it contained

stale information.

       Detective Wilson’s search-warrant affidavit, which he signed and swore to on

September 10, 2009, provides in pertinent part:

               On 06/18/09, Affiant spoke to a Confidential Informant (CI). The
       CI has given the Affiant information in the past that has been proven true
       and correct through independent investigation. The CI has given the
       Affiant information that has led to two felony narcotic arrests and has led
       to the seizure of cocaine and methamphetamine. The CI has proven the
       ability to recognize Cocaine and Methamphetamine by sight to the Affiant
       in the past. The CI advised the Affiant that the CI personally observed
       said suspected party #1 [Romero] in possession of cocaine within the
       past 72 hours. The CI advised that said suspected Party #1 commonly
       transports cocaine in different vehicles located at the Said Suspected Place.
       The CI advised that the Said Suspected Party hides money and
       contraband in the out buildings located on the Said Suspected Place.
       [Emphasis added.]

       At the suppression hearing, Detective Wilson testified, over Romero’s objection,

1At the same time, another detective obtained a second search warrant from the same magistrate for
another residence owned by Romero. That warrant and its supporting affidavit are not at issue.

Romero v. State                                                                            Page 2
that the affidavit’s June date was from a previous drug buy involving Romero and that

he had not obtained a search warrant and executed it in June because of a staffing

shortage at the time. He kept the June affidavit on a portable storage device, and in

September, when he sought the warrant, he created the September affidavit but

mistakenly submitted the June affidavit to the magistrate.                       The trial court issued

findings of fact and conclusions of law on the motion to suppress and found that

Detective Wilson’s affidavit with the June date was a clerical error. As part of his

complaint that the trial court erred in denying the motion to suppress, Romero asserts

that the trial court erred in allowing Detective Wilson to testify about this alleged

clerical error, arguing that it is not a clerical error and that Detective Wilson’s testimony

thus ran afoul of the “four-corners rule” in the determination of whether the search-

warrant affidavit alleged facts showing probable cause.2

        In a supplemental brief, the State presents an alternative theory for upholding

the magistrate’s issuance of the search warrant:3 Based on the four corners of the

affidavit, the magistrate could have reasonably inferred that the informant observed

Romero in possession of cocaine at his residence within 72 hours of the date the

affidavit was sworn to—September 10. See State v. McLain, 337 S.W.3d 268, 273 (Tex.


2 “[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). Because of the nature of
these technical defects, parol evidence, in the form of explanatory testimony, may be used to cure the
defect. Id. at 760.

3 See, e.g., Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App. 2010) (“The State … switched gears on
appeal and argued that the trial court’s ruling was correct under the theory that ‘a movement right or left
on a roadway is a turn.’ That switch was perfectly permissible because an appellate court will uphold the
trial court’s ruling if that ruling is ‘reasonably supported by the record and is correct on any theory of law
applicable to the case.’”).

Romero v. State                                                                                        Page 3
Crim. App. 2011). Also, the magistrate could have inferred that Romero was operating

an ongoing narcotics operation in his residence. See Jones v. State, 364 S.W.3d 854, 860-

63 (Tex. Crim. App. 2012). Thus, the State concludes, the magistrate had a substantial

basis for concluding that probable cause existed, and the trial court did not err in

denying the motion to suppress.

        Romero responds that we should reject the State’s alternative theory and address

only the trial court’s findings of fact and conclusions of law.4 A trial court’s ruling will

be upheld, however, if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. Amador v. State, 275 S.W.3d 872, 878-79 (Tex. Crim.

App. 2009); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At least twice

recently, the Court of Criminal Appeals has invoked this principle when the trial court

had made findings of fact and conclusions of law. See, e.g., State v. Weaver, 349 S.W.3d

521, 525 (Tex. Crim. App. 2011); Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App.

2010). And it is applicable here with our highly deferential review of the issuing

magistrate’s probable-cause decision and our sole focus on the four corners of the

affidavit:


4 None of the trial court’s findings and conclusions pertains to the State’s alternative theory. Because our
sole focus is on the four corners of the affidavit under the State’s alternative theory, abatement of the
appeal and a remand for further findings by the trial court is unnecessary. Cf. Elias v State, 339 S.W.3d
667, 676-77 (Tex. Crim. App. 2011). There are no credibility determinations to be made because our sole
focus is on the affidavit, McLain, 337 S.W.3d at 271, and there are no potentially dispositive historical
factual findings to be made. See generally State v. Mendoza, 365 S.W.3d 666, 669-70 & n.12 (Tex. Crim. App.
2012) (discussing nature of historical factual findings). Rather, an appellate court, applying a highly
deferential review of the issuing magistrate’s probable-cause decision and focusing solely on the
affidavit, can interpret the affidavit and render the legal conclusion on what reasonable inferences the
magistrate could have made without pertinent factual findings. See McLain, 337 S.W.3d at 273 (“we
believe that the magistrate could have reasonably inferred that the informant observed Appellee with the
methamphetamine within the past 72 hours”).

Romero v. State                                                                                      Page 4
       [W]hen the trial court is determining probable cause to support the
       issuance of a search warrant, there are no credibility determinations,
       rather the trial court is constrained to the four corners of the affidavit.
       Accordingly, when we review the magistrate’s decision to issue a warrant,
       we apply a highly deferential standard because of the constitutional
       preference for searches to be conducted pursuant to a warrant as opposed
       to a warrantless search. As long as the magistrate had a substantial basis
       for concluding that probable cause existed, we will uphold the
       magistrate’s probable cause determination.

               We are instructed not to analyze the affidavit in a hyper-technical
       manner. When “reviewing a magistrate’s decision to issue a warrant,
       trial and appellate courts apply a highly deferential standard in keeping
       with the constitutional preference for a warrant. Thus, when an appellate
       court reviews an issuing magistrate’s determination, that court should
       interpret the affidavit in a commonsensical and realistic manner,
       recognizing that the magistrate may draw reasonable inferences. When in
       doubt, we defer to all reasonable inferences that the magistrate could have
       made.”

              Since the Fourth Amendment strongly prefers searches to be
       conducted pursuant to search warrants, the United States Supreme Court
       has provided incentives for law-enforcement officials to obtain warrants
       instead of conducting warrantless searches. One incentive is a less-strict
       standard for reviewing the propriety of a search conducted pursuant to a
       warrant. In this situation, courts must give great deference to the
       magistrate’s probable-cause determination. Both appellate courts and trial
       courts alike must give great deference to a magistrate’s implicit finding of
       probable cause.

              An evaluation of the constitutionality of a search warrant should
       begin with the rule “the informed and deliberate determinations of
       magistrates empowered to issue warrants are to be preferred over the
       hurried action of officers who may happen to make arrests.” Reviewing
       courts should not “invalidate the warrant by interpreting the affidavit in a
       hypertechnical, rather than commonsense, manner.” When in doubt, the
       appellate court should defer to all reasonable inferences that the
       magistrate could have made.

               A magistrate shall not issue a search warrant without first finding
       probable cause that a particular item will be found in a particular location.
       Probable cause exists when, under the totality of the circumstances, there
       is a fair probability that contraband or evidence of a crime will be found at

Romero v. State                                                                        Page 5
       the specified location. It is a flexible and non-demanding standard. The
       facts stated in a search affidavit “must be so closely related to the time of
       the issuance of the warrant that a finding of probable cause is justified.”

McLain, 337 S.W.3d at 271-72 (footnoted citations omitted).         But, “time is a less

important consideration when an affidavit recites observations that are consistent with

ongoing drug activity at a defendant’s residence.” Jones, 364 S.W.3d at 860 (citing

McLain, 337 S.W.3d at 273-74).

       Applying this highly deferential review of the issuing magistrate’s probable-

cause decision, we agree with the State that the magistrate could have reasonably

inferred that the informant observed Romero in possession of cocaine at his residence

within 72 hours of the date of Detective Wilson’s affidavit and that Romero was

operating an ongoing narcotics operation in his residence. See McLain, 337 S.W.3d at

273; see also Jones, 364 S.W.3d at 862-63. With these reasonable inferences, the magistrate

had a substantial basis for concluding that probable cause existed. Accordingly, the

trial court did not err in denying Romero’s motion to suppress because the ruling is

correct under the State’s alternative theory, which is reasonably supported by the

record. We overrule issue one.

                                           Fine

       Romero’s second issue asserts that the trial court improperly imposed a $25,000

fine on count 1. The State agrees with Romero.

       The State sought and obtained punishment of Romero as a habitual offender, and

the applicable punishment range—25 to 99 years’ imprisonment or life—is set out in




Romero v. State                                                                        Page 6
section 12.42(d) of the Penal Code. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp.

2012). Section 12.42(d) does not authorize a fine.

       The State submits that a proper remedy is for the Court to delete the fine on

count 1 and to affirm the judgment on that count as modified. See TEX. R. APP. P.

43.2(b). We agree.

       We sustain issue two and delete the $25,000 fine in the trial court’s judgment on

count 1. We affirm that judgment as modified, and we affirm the judgment on count 2.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not
       issue.)
Affirmed as modified
Opinion delivered and filed December 20, 2012
Do not publish
[CRPM]




Romero v. State                                                                   Page 7
