                                                                             PD-1058-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 9/28/2015 7:27:02 PM
                                                             Accepted 9/30/2015 2:49:57 PM
                                                                             ABEL ACOSTA
           COURT OF CRIMINAL APPEALS                                                 CLERK



                             PD-1058-15

                   State of Texas, Appellant
                               v.
                   Casey Welborn, Appellee
            On Discretionary Review from No. 02-14-00464-CR
                         Second Court of Appeals

                On Appeal from No. CR-2013-07913-D
              County Criminal Court No. 4, Denton County


             Petition for Discretionary Review
Mark T. Lassiter
3500 Maple Ave Suite 400
Dallas, TX 75219
Phone: 214-845-7007
Fax: 214-845-7006
mark@lassiterlawoffice.com
Texas Bar No. 24055821

Michael Mowla
                                                September 30, 2015
P.O. Box 868
Cedar Hill, TX 75106
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680




  If the Petition is granted, oral argument is requested
                                   1
I. Identity of Parties, Counsel, and Judges

Casey Welborn, Appellee

Mark T. Lassiter, attorney for Appellee at trial and on discretionary review

Michael Mowla, attorney for Appellee on discretionary review

State of Texas, Appellant

Paul Johnson, Denton County District Attorney, Attorney for Appellee

Emily Chilivetis, Denton County Assistant District Attorney

Britney Tomberlin, Denton County Assistant District Attorney

Catherine Luft, Denton County Assistant District Attorney

Lara Tomlin, Denton County Assistant District Attorney

Lisa McMinn, State Prosecuting Attorney

John Messinger, Assistant State Prosecuting Attorney

Hon. Joe Bridges, Presiding Judge of County Criminal Court No. 4, Denton
County




                                         2
II. Table of Contents

I.        Identity of Parties, Counsel, and Judges ..........................................................2 
II.       Table of Contents .............................................................................................3 
III.      Table of Authorities .........................................................................................5 
IV.       Appendix Index ...............................................................................................6 
V.        Statement Regarding Oral Argument ..............................................................7 
VI.       Statement of the Case and Procedural History ................................................8 
VII.  Grounds for Review.......................................................................................10 
VIII.  Argument .......................................................................................................11 
       1.  Ground for Review: The court of appeals erred by effectively
           creating a bright-line rule that all errors in warrants and
           probable cause affidavits supporting a warrant may be
           explained later using parol evidence. This bright-line rule: (1)
           violates the Fourth Amendment; and (2) allows the adequacy of
           an affidavit supporting a search warrant to no longer be
           governed by the rule that probable cause must be determined
           from the four corners of the affidavit alone, but may instead be
           explained later using parol evidence. Thus, this Court should
           hold that parol evidence may not be used to supplement
           information contained within the “four corners” of a probable
           cause affidavit if the parol evidence allows the State to justify a
           Fourth Amendment seizure after-the-fact. ....................................................11 
          i.       Introduction .........................................................................................11 
          ii.      The “four-corners rule” prohibits going outside the “four
                   corners” of an affidavit supporting a search warrant, and
                   the court of appeals clearly violated this rule......................................11 
          iii.     Review of probable cause affidavits supporting a search
                   warrant require a commonsense, and not a hypertechnical
                   analysis ................................................................................................13 
          iv.      The incorrect information in the affidavit (the date) is not
                   something within the “common knowledge” of the
                   officer or magistrate ............................................................................14 
          v.       The Court of Appeals misinterpreted this Court’s ruling
                   in Green ...............................................................................................15 

                                                              3
       vi.      The opinion of the Court of Appeals circumvents Crider ..................17 
IX.    Conclusion and Prayer ...................................................................................18 
X.     Certificate of Service .....................................................................................20 
XI.    Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................21 




                                                        4
III. Table of Authorities

Cases 
Cardona v. State, 134 S.W.3d 854 (Tex. App. Amarillo, pet. ref.)
     (mem. op.) ......................................................................................................14
Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003) ........................................12
Crider v. State, 352 S.W.3d 704 (Tex. Crim. App. 2011) ................................ 12, 17
Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006) ........................................13
Doescher v. State, 578 S.W.2d 385 (Tex. Crim. App. 1978) ..................................12
Elardo v. State, 163 S.W.3d 760 (Tex. App. Texarkana 2005, pet. ref.) ................12
Flores v. State, 888 S.W.2d 193 (Tex. App. Houston [1st Dist.] 1994,
      pet. ref.) ..........................................................................................................12
Green v. State, 799 S.W.2d 756 (Tex. Crim. App. 1990)........................................15
Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004) ....................................13
Harris v. State, 784 S.W.2d 5 (Tex. Crim. App. 1989) ...........................................17
Illinois v. Gates, 462 U.S. 213 (1983) .....................................................................14
Lowery v. State, 99 S.W.3d 398 (Tex. App. Amarillo 2003, no pet.) .....................12
Rougeau v. State, 738 S.W.2d 651 (Tex. Crim. App. 1987) ...................................17
Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. 2006) ................................. 12, 13
Statutes 
Tex. Pen. Code § 49.04 (2013) ..................................................................................9
Rules 
Tex. Rule App. Proc. 66.3 (2015) ............................................................................20
Tex. Rule App. Proc. 68.4 (2015) ....................................................................... 7, 11
Tex. Rule App. Proc. 9.4 (2015) ..............................................................................22




                                                             5
IV. Appendix Index

State v. Welborn, 02-14-00464-CR, 2015 Tex. App. LEXIS 8001 (Tex. App. Fort
Worth, July 30, 2015) (memorandum opinion)




                                     6
V. Statement Regarding Oral Argument

      Should the Court grant this petition, Appellee requests oral argument. See

Tex. Rule App. Proc. 68.4(c) (2015). The issue presented in this case involves one

of first impression in which the court of appeals effectively created a bright-line

rule that all errors in warrants and probable cause affidavits supporting a warrant

may be explained later using parol evidence. Therefore, should this Court

determine that its decisional process will be significantly aided by oral argument,

Appellee will be honored to present oral argument.




                                        7
To The Honorable Judges of the Court of Criminal Appeals:

       Appellee Casey Welborn respectfully submits this petition for discretionary

review:


VI. Statement of the Case and Procedural History

       This petition requests that this Court review the Memorandum Opinion and

judgment of the Second Court of Appeals in State v. Welborn, 02-14-00464-CR,

2015 Tex. App. LEXIS 8001 (Tex. App. Fort Worth, July 30, 2015) (memorandum

opinion), in which the court of appeals reversed the order of the trial court

contained in the Findings of Fact and Conclusions of Law (“FFCL”) by holding

that the trial court erred by granting Appellee’s motion to suppress the results of a

blood draw performed under a warrant because the erroneous date in the affidavit

supporting the warrant was a clerical error that did not affect the validity of the

warrant under Texas Code Criminal Procedure Article 18.01 (2015).

       Appellee was charged by information with Driving While Intoxicated

(“DWI”) under Texas Penal Code § 49.04. (CR, 5-6)1; see Tex. Pen. Code § 49.04

(2013). Appellee filed a motion to suppress the blood test results, specifically

attacking the affidavit supporting the blood warrant and the blood warrant itself.


1
  The Record on Appeal consists of the Clerk’s Record and a Supplemental Clerk’s Record, and
the Reporter’s Record, which is three volumes. The Clerk’s Record is cited as “CR” or “CR-
Supp” and followed by the page number, and the Reporter’s Record is cited as “RR” followed by
the volume number, page number, or exhibit number.


                                             8
(RR2; RR3, SX-1, SX-2; CR, 33-35). On November 3, 2014, hearing was held on

the motion to suppress the blood test results of Appellee. (RR2). The trial court

granted the motion to suppress, and entered the FFCL. (CR, 36-37, 40-41). Prior

to the disposition of the case, the State filed a notice of appeal. (CR, 42-43).

      On July 30, 2015, the Court of Appeals reversed the order of the trial court.

See State v. Welborn, 02-14-00464-CR, 2015 Tex. App. LEXIS 8001 (Tex. App.

Fort Worth, July 30, 2015) (memorandum opinion). This petition for discretionary

review follows.




                                           9
VII. Grounds for Review

Ground for Review: The court of appeals erred by effectively creating a
bright-line rule that all errors in warrants and probable cause affidavits
supporting a warrant may be explained later using parol evidence. This
bright-line rule: (1) violates the Fourth Amendment; and (2) allows the
adequacy of an affidavit supporting a search warrant to no longer be
governed by the rule that probable cause must be determined from the four
corners of the affidavit alone, but may instead be explained later using parol
evidence. Thus, this Court should hold that parol evidence may not be used to
supplement information contained within the “four corners” of a probable
cause affidavit if the parol evidence allows the State to justify a Fourth
Amendment seizure after-the-fact.

      Appellee directs this Court’s attention to the following parts of the record on

appeal:

Reporter’s Record, Volumes 2 and 3

Clerk’s record pages 40-41.

See Tex. Rule App. Proc. 68.4(f) (2015).




                                         10
VIII. Argument

   1. Ground for Review: The court of appeals erred by effectively creating a
      bright-line rule that all errors in warrants and probable cause affidavits
      supporting a warrant may be explained later using parol evidence. This
      bright-line rule: (1) violates the Fourth Amendment; and (2) allows the
      adequacy of an affidavit supporting a search warrant to no longer be
      governed by the rule that probable cause must be determined from the
      four corners of the affidavit alone, but may instead be explained later
      using parol evidence. Thus, this Court should hold that parol evidence
      may not be used to supplement information contained within the “four
      corners” of a probable cause affidavit if the parol evidence allows the
      State to justify a Fourth Amendment seizure after-the-fact.
         i. Introduction
      There is a difference between using parol evidence to explain deficiencies in

a probable cause affidavit that occurs before a Fourth Amendment seizure versus

using parole evidence to explain a deficiency that occurs after a Fourth

Amendment seizure. In this case, the State used parol evidence to explain a

deficiency in a probable cause affidavit that allowed the police to obtain a search

warrant (for blood) in the first instance. As the following analysis will show, this

is very different than the situation in Green (see below), in which 25 years ago, this

Court held that the State’s failure to get the warrant executed after a Fourth

Amendment search was conducted could be explained by parol evidence.

         ii. The “four-corners rule” prohibits going outside the “four
             corners” of an affidavit supporting a search warrant, and the
             court of appeals clearly violated this rule.
      Whether information contained in an affidavit in support of a search warrant

is legally adequate must be reviewed by considering only the “four corners” of the

                                         11
affidavit. Doescher v. State, 578 S.W.2d 385, 387 (Tex. Crim. App. 1978); Cates

v. State, 120 S.W.3d 352, 359 (Tex. Crim. App. 2003); Smith v. State, 207 S.W.3d

787, 794 (Tex. Crim. App. 2006); Crider v. State, 352 S.W.3d 704, 710 (Tex.

Crim. App. 2011) (emphasis added). Even if officers are aware of additional

information that would be sufficient to establish probable cause, the warrant is

invalid if the critical facts are not included within the four corners of the affidavit

for the search warrant presented to the magistrate. Lowery v. State, 99 S.W.3d 398,

400 (Tex. App. Amarillo 2003, no pet.) (Reviewing court must restrict its review

of probable cause to the four corners of affidavit supporting the search warrant);

see Flores v. State, 888 S.W.2d 193, 197 (Tex. App. Houston [1st Dist.] 1994, pet.

ref.) (Although the officer testified during the hearing on the defendant’s motion to

suppress that he observed the defendant drive a vehicle to the location of a drug

transaction, such fact did not authorize the search of the defendant’s car because

the surveillance facts were not included in the affidavit supporting the search

warrant); see also Elardo v. State, 163 S.W.3d 760, 771 (Tex. App. Texarkana

2005, pet. ref.) (State cannot supplement the probable cause affidavit with

additional information not contained in the affidavit and testimony at a hearing on

the defendant’s motion to suppress).




                                          12
      Finally, the “four corners rule” applies only to the assessment of probable

cause, and does not apply to the issue of whether the affiant swore to the affidavit's

truthfulness. Smith, 207 S.W.3d at 794.

      In the case before this court, it is undisputed that the State supplied a correct

date through parol evidence. Therefore, the “four-corners rule” rule was violated.

In the next section, Appellee will discuss whether Davis applies.

         iii. Review of probable cause affidavits supporting a search warrant
              require a commonsense, and not a hypertechnical analysis
      In Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006), the Court of

Criminal Appeals held that the review of probable cause affidavits supporting a

search warrant require a commonsense, and not a hypertechnical analysis. As the

Court held, the “best practice” for affidavits supporting a search warrant is for the

affiant to include an officer’s experience, background information, and previous

associations with contraband so that “little is left to inference” and the magistrate

has specifically articulated facts to evaluate in determining if there is probable

cause. Id. Reasonable inferences, the Court held, may be drawn from the facts and

circumstances contained within the “four corners of the affidavit.” Id. (emphasis

supplied). See also Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004).

      Davis clearly does not apply in Appellee’s case. A date has nothing to do

with an officer’s experience, background information, and previous associations

with contraband. Thus, with an incorrect date, there is nothing left “to inference” in

                                          13
order to determine probable cause. Nor can the State, within the four corners of the

affidavit supporting the search warrant, show that although the affidavit supporting

the search warrant fails to show that the source of information was reliable, it

shows “a strong demonstration of basis of knowledge” that may “remedy a weak

showing of reliability.” Illinois v. Gates, 462 U.S. 213, 231-232 (1983).

         iv. The incorrect information in the affidavit (the date) is not
             something within the “common knowledge” of the officer or
             magistrate
      Nor can the State claim here that the mistaken fact (incorrect date) could be

within “common knowledge,” thus excusing the mistaken fact. It is not as though

the affidavit recited something to the effect of “it is within the knowledge of the

affiant that many people exit Lichas Cantina on 8th Street in Austin, Texas, while

apparently inebriated.” It is within the common knowledge of any person who

covets Mexican food or margaritas (or both), and who is familiar with the 6th Street

area in Austin that Lichas Cantina is actually on 6th Street. Therefore, a reviewing

court would be correct if it excused this mistake because it clearly was a clerical

error pertaining to a fact of “common knowledge.”

      The mistaken date in this case is more closely aligned with the facts of

Cardona v. State, 134 S.W.3d 854, 859 (Tex. App. Amarillo, pet. ref.) (mem. op.),

because like the situation regarding a date, a magistrate would have to engage in

speculation when determining what materials are used in the manufacture of drugs.


                                         14
In Cardona, the affidavit in support of the search warrant application referred to

the presence of anhydrous ammonia, psuedophed, baggies, coolers, a thermos,

latex gloves, and black nylon bags. Although none of these items were specifically

tied to the presence or manufacture of methamphetamine, the State argued that it is

‘‘common knowledge’’ that these items are often used in the manufacture of

methamphetamine. Id. The Court of Appeals rejected this argument and held the

State to the four-corners rule, holding that ‘‘common knowledge’’ consists of

matters ‘‘so well known to the community as to be beyond dispute’’ and that the

formula for or the ingredients of the manufacture of a controlled substance does

not fall within this category. Id. Thus, because any such information regarding the

manufacturing of methamphetamine fell outside the “realm” of the four corners of

the affidavit, the defendant’s conviction was reversed. Id. at 860.

          v. The Court of Appeals misinterpreted this Court’s ruling in Green
      The Court of Appeals referred to the incorrect date as one that is a

“purely technical” discrepancy “in dates or times” that “do not automatically

vitiate the validity of search or arrest warrants.” Welborn, id. at *5; citing Green v.

State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990). In Green, the search warrant

indicated that it was signed and issued by the magistrate on March 20, 1987. Id. at

757. The return on the warrant indicates that it was executed on March 25, 1987.

Id. Facially, the warrant violated Article 18.07(c), which requires a warrant to be


                                          15
executed within three days, exclusive of the day of issuance and day of

execution. Id. This Court affirmed the judgment of the court of appeals, holding

that the warrant was stale when executed and the subsequent seizure invalid, and

there was no evidence presented showing a clerical error. Id. at 760-761.

      And even if in Green had the State presented evidence showing a clerical

error, in Green, the issue was the State’s failure to get the warrant executed after a

Fourth Amendment search was conducted. In the case before this Court, the

officer wrote an affidavit for a search warrant for blood in which two different

dates appear for the stop: in the first paragraph, the officer wrote that Appellee

committed DWI “on or about the 02 day of September, 2013, but then in paragraph

five, the officer wrote that the stop occurred “[O]n, Sunday, September 1, 2013, at

approximately 0352 hours.” (RR3, SX-1; CR, 40). At the end of the affidavit, the

officer signed that he swore to the facts alleged “on this the 2 day of September,

2013.” (RR3, SX-1; CR, 40). The officer presents the affidavit to a magistrate,

who issues a “Search Warrant for Blood,” which incorporated the officer’s

affidavit, commanded the seizure of Appellee, and authorized a compelled blood

draw from Appellee. (RR3, SX-2). The warrant states that it was “[I]ssued at 5:30

o’clock a.m. on this the 2nd day of September, 2013.” (RR3, SX-2; CR, 41).

      Appellee correctly argued that because the affidavit stated that the stop of

the vehicle occurred on “Sunday, September 1, 2013, at approximately 0352


                                         16
hours,” and the warrant was signed by the magistrate “at 5:30 o’clock a.m. on this

the 2nd day of September, 2013,” there was a twenty-six hour period between

Appellee’s detention and the issuance of the warrant. (RR2, 31-35). This clearly

was in violation of Article 18.01 and Crider, 352 S.W.3d at 707-708. (CR, 41).

      Thus, a critical difference between the facts of Green and the facts of this

case exist: in Green, the “clerical error” occurred after the Fourth Amendment

seizure took place. In the case before this Court, the so-called “clerical error”

occurred before the Fourth Amendment seizure took place, and the State used parol

evidence to “supplement” the information contained with the “four corners” of the

affidavit. This Court should not let this result stand.

          vi. The opinion of the Court of Appeals circumvents Crider
      Further, in the case before this Court, because there was a 26-hour time gap,

the trial court ruled correctly that the request for a blood search warrant was stale.

The opinion of the Court of Appeals circumvents Crider by creatively suggesting

that because the specific date listed in the affidavit for search warrant is incorrect,

can be explained after the fact by parole evidence. Clear typographical errors will

not vitiate either an arrest or search warrant. See Rougeau v. State, 738 S.W.2d

651, 663 (Tex. Crim. App. 1987), overruled on other grounds by Harris v. State,

784 S.W.2d 5 (Tex. Crim. App. 1989). If this Court were to let the opinion of the

Court of Appeals stand, a Pandora’s Box would open for a litany of questions for


                                          17
the trial courts, and the four-corners rule would be rendered a legal fiction. Thus,

the trial court was correct in relying on Crider. (CR, 41).

      It is of particular note that in this case, the error was not “clear” or “purely

technical.” A magistrate judge looking at the information within the “four corners”

of the affidavit could not know that the specific date listed of September 1, 2013

was incorrect. This is shown by the officer’s admission that the dates within his

affidavit are not in conflict, and the trial court’s finding of fact that the dates were

not in conflict. Thus, the trial court correctly ruled that a magistrate would have no

way of knowing if there was a clerical error or not.


IX. Conclusion and Prayer

      The court of appeals erred by effectively creating a bright-line rule that all

errors in warrants and probable cause affidavits supporting a warrant may be

explained later using parol evidence. This bright-line rule: (1) violates the Fourth

Amendment; and (2) allows the adequacy of an affidavit supporting a

search warrant to no longer be governed by the rule that probable cause must be

determined from the four corners of the affidavit alone, but may instead be

explained later using parol evidence. Thus, this Court should hold that parol

evidence may not be used to supplement information contained within the “four

corners” of a probable cause affidavit if the parol evidence allows the State to

justify a Fourth Amendment seizure after-the-fact.

                                          18
      As a result, the Court of Appeals has: (1) decided an important question of

state and federal law that has not been, but should be, settled by the Court of

Criminal Appeals; and (2) decided an important question of state or federal law in

a way that conflicts with the applicable decisions of the Court of Criminal Appeals

and the Supreme Court of the United States. See Tex. Rule App. Proc. 66.3

(2015). Appellee respectfully prays that this Court grant discretionary review,

reverse the judgment of the court of appeals, and reinstate the order contained in

the Findings of Fact and Conclusions of Law that suppresses the results of the

illegal blood warrant.

                                      Respectfully submitted,

                                      Mark T. Lassiter
                                      3500 Maple Ave Suite 400
                                      Dallas, TX 75219
                                      Phone: 214-845-7007
                                      Fax: 214-845-7006
                                      mark@lassiterlawoffice.com
                                      Texas Bar No. 24055821
                                      Attorney for Appellee

                                      /s/ Mark T. Lassiter
                                      By: Mark T. Lassiter




                                        19
                                   Michael Mowla
                                   P.O. Box 868
                                   Cedar Hill, TX 75106
                                   Phone: 972-795-2401
                                   Fax: 972-692-6636
                                   michael@mowlalaw.com
                                   Texas Bar No. 24048680
                                   Attorney for Appellee




                                   /s/ Michael Mowla
                                   By: Michael Mowla

X. Certificate of Service

      I certify that on September 28, 2015, a true and correct copy of this
document was served by email on the District Attorney’s Office, Denton County,
Appellate Division, to Catherine Luft at catherine.luft@dentoncounty.com and
Lara Tomlin at lara.tomlin@dentoncounty.com, and on the State Prosecuting
Attorney to Lisa McMinn at Lisa.McMinn@spa.texas.gov, and John Messinger at
john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and 68.11
(2015).




                                   /s/ Michael Mowla
                                   By: Michael Mowla




                                     20
XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4

       This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 4,500 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 2,345 words in the document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented
(grounds for review section), statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix. This document also complies with the typeface requirements because it
has been prepared in a proportionally-spaced typeface using 14-point font. See
Tex. Rule App. Proc. 9.4 (2015).




                                       /s/ Michael Mowla
                                       By: Michael Mowla




                                         21
APPENDIX
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00464-CR


THE STATE OF TEXAS                                                          STATE

                                         V.

CASEY WELBORN                                                           APPELLEE


                                      ----------

       FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY
                TRIAL COURT NO. CR-2013-07913-D

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                 I. INTRODUCTION

      The State of Texas appeals the trial court’s order granting appellee Casey

Welborn’s motion to suppress the results of a blood draw performed pursuant to

a warrant. In one issue, the State argues that the trial court abused its discretion

by suppressing the evidence “because the one instance of the incorrect date in


      1
       See Tex. R. App. P. 47.4.
the affidavit supporting the search warrant for blood was a clerical error that was

explained by . . . parol evidence.”    Because we conclude that the trial court

erroneously applied the law, we will reverse and remand.

                                 II. BACKGROUND

      During his 7:00 p.m. to 7:00 a.m. shift that spanned the dates of

September 1, 2013, to September 2, 2013, Carrollton Police Officer William Trim

wrote an affidavit for a search warrant to draw blood from Welborn.         Trim’s

pursuit of a search warrant stemmed from him having pulled over Welborn’s

vehicle, allegedly because Trim had witnessed it swerving in and out of a single

lane of traffic. By Trim’s account, further field-sobriety tests led him to believe

that Welborn was driving while intoxicated.

      In his “Affidavit for Search Warrant for Blood,” there appear two different

dates for the stop. In the first paragraph, Trim wrote that Welborn committed the

offense of DWI “on or about the 02 day of September, 2013.” Later, in paragraph

five of the affidavit, Trim wrote that the stop occurred “[o]n, Sunday,

September 1, 2013, at approximately 0352 hours.” Yet again, at the end of the

affidavit, Trim signed that he swore to the facts alleged “on this the 2 day of

September, 2013.” Trim also had this page notarized.

      After presenting the affidavit to a magistrate, the magistrate issued a

“Search Warrant for Blood.”           The warrant incorporated Trim’s affidavit,

commanded the seizure of Welborn, and authorized a compelled blood draw




                                          2
from her person. The warrant states that it was “[i]ssued at 5:30 o’clock A.M. on

this the 2nd day of September, 2013” and was signed by the magistrate.

      Later, Welborn filed a motion to suppress the results of the blood draw. In

her motion and at the suppression hearing, Welborn argued that because Trim’s

affidavit stated that his stop of her vehicle occurred on “Sunday, September 1,

2013, at approximately 0352 hours,” and that because the warrant was signed by

the magistrate “at 5:30 o’clock A.M. on this the 2nd day of September, 2013,”

there was a twenty-six hour period between her detention and the issuance of

the warrant.   Thus, Welborn argued, under the court of criminal appeals’s

decision in Crider v. State, the results of the blood draw should be suppressed.

352 S.W.3d 704, 707–08 (Tex. Crim. App. 2011) (holding that, due to alcohol’s

dissipation from bloodstream, the lack of specific time in search-warrant affidavit,

which left possible twenty-five hour period between arrest and issuance of

warrant, vitiated probable cause to uphold warrant).

      At the suppression hearing, Trim testified that the September 1, 2013 date

was a “clerical error” and that he stopped Welborn’s vehicle at 3:52 a.m. on

September 2, 2013. The trial court granted Welborn’s motion to suppress. In its

findings of fact, the trial court found that Trim’s testimony was “credible and

truthful” and that the “September 1, 2013” date found in his affidavit was a

“clerical error.” In its conclusions of law, however, the trial court stated that it

“relied on Crider” in making its determination to suppress the results of the blood

draw. The State now appeals.


                                         3
                                   III. DISCUSSION

       In the determinative part of its sole point, the State argues that the trial

court erred by granting Welborn’s motion to suppress because the “one instance

of the incorrect date in the [warrant’s] supporting . . . affidavit . . . was a clerical

error.” And, the State argues, because the clerical error was explained through

parol evidence and because the trial court found the parol evidence to be true,

the trial court should not have concluded that the results of the blood draw

performed on Welborn should be suppressed. We agree with the State.2

       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) (West 2015); State v. Johnston, 305

S.W.3d 746, 750–51 (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)   (West   2015)    (“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, 497–98 (Tex.

App.—Fort Worth 1994, pet. ref’d).




       2
       Welborn did not submit briefing in this case.


                                           4
       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 (citing 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.

       “[T]he Fourth Amendment strongly prefers searches to be conducted

pursuant to search warrants.” State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.

App. 2011). Therefore, “purely technical discrepancies in dates or times do not

automatically vitiate the validity of search or arrest warrants.” Green v. State,


                                        5
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.

at 757.    These objectives are not furthered by rigid application of the rules

concerning search warrants. Id. at 759. 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

      In one part of Trim’s affidavit, he wrote that that the stop and the events

giving rise to the stop and arrest of Welborn occurred on September 1, 2013.

Nevertheless, Trim explained at the suppression hearing that the September 1,

2013 date was an error and that the stop actually occurred on September 2,

2013. The trial court found this testimony to be true and specifically found that

the September 1, 2013 date was a “clerical error.” Viewing the evidence in the

light most favorable to the trial court’s findings, these findings of fact are

supported by the record. See Kelly, 204 S.W.3d at 818–19.

      The trial court, however, relied on the court of criminal appeals’s decision

in Crider in reaching its legal conclusion that this clerical error vitiated the


                                        6
magistrate’s search warrant. In Crider, the court held that an affidavit in support

of a search warrant that left a possible twenty-five hour gap between the officer’s

stop of Crider and the magistrate’s signing of the search warrant for blood failed

to contain “sufficient facts within its four corners to establish probable cause that

evidence of intoxication would be found in appellant’s blood at the time the

search warrant was issued.” Crider, 352 S.W.3d at 711.

      Crider, however, is distinguishable from the facts of the present case

because here “there exists a discrepancy in dates” instead of containing no date

at all. Green, 799 S.W.2d at 760; Crider, 352 S.W.3d at 711. In instances such

as this case, “parol evidence to explain the error on the face of the instrument”

may be considered in determining whether the issuing magistrate had a

substantial basis in issuing its warrant. Green, 799 S.W.2d at 761; 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. 1029 (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”).




                                         7
      We hold that because the trial court found, through parol evidence, that the

September 1, 2013 date was a “clerical error” and because it found that the

correct date was September 2, 2013, the trial court should have legally

concluded that the clerical error did not vitiate the search warrant. See Schornick

v. State, No. 02-10-00183-CR, 2010 WL 4570047, at *3 (Tex. App.—Fort Worth

Nov. 4, 2010, no pet.) (mem. op., not designated for publication) (holding that

trial court did not err by denying motion to suppress when trooper testified that

erroneous date on affidavit was a clerical error). Accordingly, we sustain the

State’s sole issue.

                                 IV. CONCLUSION

      Having sustained the State’s sole issue, we reverse the trial court’s order

and remand this case to the trial court for further proceedings consistent with this

opinion.



                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

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

DELIVERED: July 30, 2015




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