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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 02-10-00183-CR 
 
 



Michael Curtis Schornick


 


APPELLANT




 
V.
 




The State of Texas


 


STATE 



 
 
------------
 
FROM THE
43rd District Court OF Parker
COUNTY
------------
MEMORANDUM
OPINION[1]
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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.
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:
 
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.
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 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 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 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. 
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




[1]See Tex. R. App. P. 47.4.


