                          NUMBER 13-17-00268-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                      Appellant,

                                       v.

CESAR RAMIRO ARELLANO,                                                    Appellee.


              On appeal from the County Court at Law No. 2
                       of Victoria County, Texas.


                                    OPINION
           Before Justices Benavides, Longoria, and Hinojosa
                      Opinion by Justice Longoria

      Appellant the State of Texas charged appellee Cesar Ramiro Arellano with a

driving while intoxicated Class A Misdemeanor because he had previously been

convicted of the same offense. See TEX. PENAL CODE ANN. § 49.09(a) (West, Westlaw

through 2017 1st C.S.).   Arellano filed a motion to suppress.    After the trial court

conducted a hearing on the matter, it granted Arellano’s motion. By four issues, which
we have reorganized, the State contends the trial court erred in: (1) concluding the

warrant was “facially invalid”; (2) concluding the State was barred from invoking the good

faith exception; (3) refusing to consider documentary evidence presented by the State;

and (4) failing to provide adequate findings of fact and conclusions of law. 1 We affirm.

                                            I.      BACKGROUND

        Arellano was arrested for the offense of driving while intoxicated. See id. § 49.04

(West, Westlaw through 2017 1st C.S.). Officer Phillip Garcia of the Victoria Police

Department obtained a specimen of Arellano’s blood after applying for a search warrant.

Arellano filed a motion to suppress, alleging that the warrant was facially invalid because

it failed to meet the statutory requirements of Article 18.04 of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 18.04 (West, Westlaw through 2017 1st

C.S.). At the motion to suppress hearing, Arellano offered an eleven-page document

entitled “Affidavit for Search Warrant” into evidence without objection.                         The State

responded to Arellano’s argument by invoking the good faith exception contained within

Article 38.23(b) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 38.23 (West, Westlaw through 2017 1st C.S.).

        The trial court expressed concern about whose signature was on the warrant. The

State indicated a willingness to resolve that issue and offered to call in a witness. Instead,

the trial court instructed both parties to submit a brief summarizing their arguments. The

State submitted several documentary exhibits attached to their brief including a separate

affidavit from Officer Garcia where he attested to the identity of the magistrate and the



        1  After filing Arellano’s brief, on January 28, 2019, Arellano’s counsel filed her motion to withdraw,
stating that she was sworn in as the Criminal District Attorney of Victoria County, Texas, and is thereby
disqualified from representing Arellano in this matter. After considering her motion, we hereby GRANT
counsel’s motion to withdraw.
                                                      2
offense report. 2 Thereafter, the trial court granted Arellano’s motion to suppress. In

response to the State’s request, the trial court made the following findings of fact and

conclusions of law to support its ruling:

   I.          Findings of Fact

         ....

                   g.       The Trial Court reviewed [Arellano’s] Exhibit 1 and found that
                            the signature above the line indicating ‘Magistrate, Victoria
                            County’ was not in legible handwriting, nor was it
                            accompanied by any name identifying the magistrate in either
                            clearly legible handwriting or in typewritten form.

                   h.       During the hearing, neither the Trial Court nor the State could
                            identify the magistrate by the signature on the warrant in this
                            matter. The State offered no evidence on this issue.

                   i.       During the hearing, the State called no witnesses. More
                            specifically, the State did not elicit any testimony from Officer
                            Garcia during the hearing . . .

   II.         Conclusions of Law

         ....

                   d.       The Court finds that the signature on the search warrant
                            seeking Defendant’s blood is not legible and is not
                            accompanied by the magistrate’s name in either clearly
                            legible handwriting or in typewritten form.

                   e.       The warrant in this case obtained by Officer Garcia is not
                            facially valid because it fails to comply with the requisites of
                            Tex. Code of Crim. Proc. 18.04.

                   f.       In order to rely on the “good faith exception” to the
                            exclusionary rule codified in Tex. Code of Crim. Proc.
                            38.23(b), an officer must rely on a facially valid warrant. see
                            [sic] Miller v. State, 703 S.W.3d 352 (Tex. App.—Corpus
                            Christi, 1985); McClintock v. State, 2017 WL 1076289 (Tex.
                            Crim. App., March 22, 2017).

         ...


         2   This affidavit is separate from the probable cause affidavit attached to the search warrant.
                                                        3
              h.     Officer Garcia did not testify during the hearing, and thus
                     presented no evidence to show whether he relied in “good
                     faith” upon the warrant in this case.

              i.     Although Officer Garcia did not testify at the hearing, the State
                     attached Officer Garcia’s affidavit to their brief to the Court.

              j.     Even if the Trial Court wished to consider the affidavit, as
                     within its discretion, the statements in the affidavits provide a
                     recitation of the statutory requirements for the “good faith
                     exception” with respect to a warrant.

This appeal followed.

                               II.    MOTION TO SUPPRESS

A.     Standard of Review

       A trial court’s ruling on a motion to suppress, like any ruling on the admission of

evidence, is subject to review for abuse of discretion. State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006). “We view the record in the light most favorable to the trial

court’s conclusion and reverse the judgment only if it is outside the zone of reasonable

disagreement.” Id. Its ruling will be upheld if it is reasonably supported by the record and

is correct under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d

410, 417–18 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s

express or implied determination of historical facts and review de novo the court’s

application of the law of search and seizure to those facts. State v. Ross, 32 S.W.3d 853,

856 (Tex. Crim. App. 2000)

B.     Warrant Requirements

       By its first issue, the State argues that the trial court erroneously concluded that

the warrant was facially invalid in violation of Article 18.04(5) of the Texas Code of

Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 18.04.

       1.     Applicable Law

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        In September 2015, the Legislature amended Article 18.04 of the Texas Code of

Criminal Procedure by adding a fifth element to the list of requisites for a valid search

warrant. This additional requirement requires the warrant to contain the name of the

issuing magistrate in clearly legible handwriting or in typewritten form along with the

magistrate’s signature.         HOUSE COMM. ON CRIMINAL JURISPRUDENCE, Bill

Analysis, Tex. H.B. 644, 84th Leg. R.S. (2015). 3

        A search warrant shall be sufficient under article 18.04 of the code of criminal

procedure if it contains the following requisites:

        1.      that it run in the name of “The State of Texas”;

        2.      that it identify, as near as may be, that which is to be seized and
                name or describe, as near as may be, the person, place, or thing to
                be searched;

        3.      that it command any peace officer of the proper county to search
                forthwith the person, place, or thing named;

        4.      that it be dated and signed by the magistrate; and

        5.      that the magistrate’s name appear in clearly legible handwriting or in
                typewritten form with the magistrate’s signature

TEX. CODE CRIM. PROC. ANN. art. 18.04 (emphasis added). A search warrant must be

“clearly sufficiently specific to meet the mandates of the Fourth Amendment, the Texas

Constitution, and article 18.04 of the Code.” Ramirez v. State, 345 S.W.3d 631, Tex.

App.—San Antonio 2011, no pet.); Miller v. State, 703 S.W.2d 352, 353 (Tex. App.—

Corpus Christi 1985, pet. ref’d) (holding that a search warrant lacking any of the required

elements of article 18.04 is facially invalid). However, “[a] warrant that does not contain



         3 The amendment “would add to existing search warrant requirements that the name of the

magistrate issuing the warrant appear in clearly legible handwriting or in typewritten form on the warrant”
because “[a] magistrate’s signature on such warrants may not always be clearly legible, which can increase
the risk of forgery or inadequately informing individuals of who has authorized the search warrant.” HOUSE
COMM. ON CRIMINAL JURISPRUDENCE, Bill Analysis, Tex. H.B. 644, 84th Leg. R.S. (2015).
                                                    5
the basic information required by art. 18.04 can nevertheless be valid so long as the

warrant incorporates by reference [an] affidavit and said affidavit does contain all of the

information required by art. 18.04.” Turner v. State, 886 S.W.2d 859, 864 (Tex. App.—

Beaumont 1994, pet ref’d).

       2.      Discussion

       Here, the search warrant was signed by a magistrate; however, the magistrate’s

name does not appear in clearly legible handwriting or in typewritten form with the

magistrate’s signature as required by article 18.04(5). See TEX. CODE CRIM. PROC. ANN.

art. 18.04(5). Moreover, the attached affidavit incorporated in the warrant also lacks the

magistrate’s name in clearly legible handwriting or typewritten form. Because article

18.04(5) requires that the “magistrate’s name appear in clearly legible handwriting or in

typewritten form with the magistrate’s signature,” and the search warrant before us does

not meet this requirement, we conclude the warrant does not comply with the

requirements of 18.04 and is therefore facially invalid. See Turner, 886 S.W.2d at 864;

Miller, 703 S.W.2d at 353. Accordingly, we overrule the State’s first issue.

C.     Good Faith Exception

       By its second issue, the State claims that the trial court erred by concluding the

State was prevented from invoking the good faith exception of article 38.28 of the code

of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.23.

       The Texas good faith statutory exception provides an exception to the exclusion

of unlawfully obtained evidence only if the law enforcement officer was acting in good

faith reliance upon a warrant. State v. Molden, 484 S.W.3d 602, 610 (Tex. App.—Austin

2016, pet ref’d). In executing a warrant, that officer “act[s] in objective good faith reliance

upon” the warrant, “as long as the warrant is facially valid.” McClintock v. State, 541

                                              6
S.W.3d 63, 73 (Tex. Crim. App. 2017). In this case, Arellano’s blood was obtained as a

result of a facially invalid warrant in violation of article 18.04 of the code of criminal

procedure. See Molden, 484 S.W.3d at 610. Because the “good faith exception” requires

a facially valid warrant, and here, by contrast, no valid search warrant existed, the “good

faith exception” is inapplicable to this case. See id.; TEX. CODE CRIM. PROC. ANN. art.

38.23. Accordingly, we conclude that the trial court did not err in applying the exclusionary

rule in this case. We overrule the State’s second point of error.

D.      State’s Documentary Evidence

        By its third issue, the State contends that it was plain error for the trial court to fail

to consider “any of the documentary evidence offered by the State” following the motion

to suppress hearing. According to the State, “if [Arellano] is allowed to submit

documentary evidence then the State must be allowed to do so as well.”

        Here, the trial court made it clear that it did not consider the State’s documentary

evidence when it concluded that the warrant was facially invalid. However, because the

warrant was facially invalid, it was unnecessary for the trial court to consider any of the

State’s evidence. See TEX. CODE CRIM. PROC. ANN. art. 18.04(5). Nonetheless, “a trial

judge may use its discretion in deciding what type of information he considers appropriate

and reliable in making his pre-trial ruling.” Ford v. State, 305 S.W.3d 530, 539 (Tex. Crim.

App. 2009). Accordingly, we cannot say that the trial court abused its discretion when it

rejected the State’s documentary evidence. Id. We therefore overrule the State’s third

issue. 4


         4 Additionally, in its fourth issue, the State complains that the trial court’s findings of fact and

conclusions of law are “wholly inadequate on the potentially dispositive issue in this case” as the trial court
failed to address: (1) whether it believed Officer Garcia’s testimony through his affidavit; (2) the offense
report; (3) whether it believed the magistrate was a neutral and detached magistrate, or (4) whether the
warrant was issued on probable cause. Because we determined that the warrant was facially invalid, this
issue is not dispositive. See TEX. R. APP. P. 47.4.
                                                      7
                                   III.   CONCLUSION

       Having overruled the State’s issues, we affirm the trial court’s judgment.



                                                NORA L. LONGORIA
                                                Justice


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

Delivered and filed the
21st day of February, 2019.




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