Affirmed and Memorandum Opinion filed November 17, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00634-CR

                       COLIN M. DEMPSEY, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 9
                          Harris County, Texas
                      Trial Court Cause No. 1931495


                  MEMORANDUM OPINION

      Appellant, Colin Dempsey, was arrested for driving while intoxicated.
Shortly thereafter, the police obtained a search warrant to take a specimen of
appellant’s blood. The State charged appellant with the offense and alleged the
blood analysis showed an alcohol concentration of at least 0.15. See Texas Penal
Code Ann. §§ 49.01(1)(B), (2)(B) (West 2011), 49.04(a) (West Supp. 2014)
(providing person commits offense if he operates a motor vehicle in a public place
with blood-alcohol concentration of 0.08 or higher).
       Appellant filed a pre-trial motion to suppress the results of the analysis,
contending his constitutional and statutory rights were violated because the search
warrant was not properly based on a probable-cause affidavit. After a hearing, the
trial court denied the motion. Appellant then pleaded guilty subject to his right to
appeal the pre-trial ruling. The trial court sentenced appellant to 180 days in jail,
probated for one year. In his sole appellate issue, appellant contends the trial court
erred by denying the motion to suppress. We affirm.

                                   MOTION TO SUPPRESS

       Both the Fourth Amendment to the United States Constitution and the Texas
Constitution protect against an unreasonable search and seizure and provide that no
search warrant shall issue except upon a warrant based on probable cause as
supported by an oath or affirmation. See U.S. Const. amend. IV; Tex. Const. art.
I, § 9. The ultimate touchstone of the Fourth Amendment is reasonableness. Riley
v. California, ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014).1
Reasonableness generally requires obtaining a judicial warrant issued upon
probable cause subject to a few established exceptions. See id. Further, the Texas
Code of Criminal Procedure provides that no search warrant shall issue “unless
sufficient facts are first presented to satisfy the issuing magistrate that probable
cause does in fact exist for its issuance.” Tex. Code. Crim. Proc. Ann. art 18.01(b)
(West 2015).       “A sworn affidavit setting forth substantial facts establishing
probable cause shall be filed in every instance in which a search warrant is
requested.” Id.



       1
        Appellant does not argue his state constitutional claim separately from his federal claim
or contend the state constitution affords greater protections than the federal constitution.
Consequently, we will analyze the constitutional claim solely under Fourth Amendment law.
See Manns v. State, 122 S.W.3d 171, 192 n.97 (Tex. Crim. App. 2003).

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         Consistent with his contention in the trial court, appellant argues that the
search warrant authorizing his blood draw was invalid on its face because the
documents reflect the warrant was signed before the probable-cause affidavit was
executed. The warrant and the affidavit were presented at the motion-to-suppress
hearing. The affidavit was executed by Houston police officer N.J. Correia, who
explained the facts required to establish probable cause.2 In the search warrant, the
magistrate made the following recital:

         WHEREAS, Complaint in writing, under oath, has been made by N.
         J. CORREIA, a peace officer employed by the Houston Police
         Department, in reference to incident # 147028913-C, which
         complaint is attached hereto and expressly made a part hereof for all
         purposes and said complaint having stated facts and information in my
         opinion sufficient to establish probable cause for the issuance of this
         warrant
(emphasis in original). The incident number referenced in the magistrate’s recital
matched the incident number on the officer’s affidavit. As appellant asserts, the
notarization on the affidavit showed that it was “Sworn to and Subscribed” by the
officer at 1:10 a.m. on a particular day, but the search warrant had a notation of
1:06 a.m. that same day for the magistrate’s signature—which preceded the time
on the affidavit by four minutes.

         The trial court did not issue written findings of fact and conclusions of law
but orally announced the reason for its ruling. See State v. Cullen, 195 S.W.3d
696, 699 (Tex. Crim. App. 2006) (recognizing that in criminal case, appellate court
may consider findings orally articulated on the record by trial court). The trial
court remarked that (1) the magistrate recited an affidavit had been presented to
him, and (2) “Unfortunately we don’t live in a world with synchronized watches.”

         2
             Appellant does not challenge whether those facts were sufficient to establish probable
cause.

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Therefore, the trial court essentially concluded that the search warrant was valid
because it was based on a probable-cause affidavit and the time notation on the
warrant preceded the time on the affidavit because one of the officials viewed a
clock with an inaccurate time.

      We may review de novo the trial court’s denial of the motion to suppress
because it turned solely on a review of the relevant documents as opposed to any
factual disputes or evaluation of witness credibility and demeanor and thus the trial
court was in no better position than our court to decide the motion. See Amador v.
State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d
85, 87 (Tex. Crim. App. 1997); State v. Garcia, 25 S.W.3d 908, 911 (Tex. App.—
Houston [14th Dist.] 2000, no pet.).

      The State relies on Green v. State, 799 S.W.2d 756, 757–60 (Tex. Crim.
App. 1990), in which the Texas Court of Criminal Appeals recognized that “purely
technical discrepancies” do not automatically vitiate the validity of a search
warrant and must be reviewed “with a judicious eye for the procedural aspects
surrounding issuance and execution of the warrant” and under “the totality of the
circumstances.” Appellant relies on further statements in Green indicating there
must be extraneous evidence in the record explaining that an error on the face of an
instrument is merely clerical or technical, see id. at 759–61, and asserts the State
failed to present such evidence in this case.

      Appellant’s contention that the warrant was invalid on its face because of
the time notation is somewhat inconsistent with his argument that both documents
together demonstrate there was a “discrepancy.” Regardless, we disagree that the
warrant was invalid or that there was any material “discrepancy.”

      The version of Texas Code of Criminal Procedure article 18.04 in effect
when this search warrant was issued provided:
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      A search warrant issued under this chapter shall be sufficient 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; and
      (4) that it be dated and signed by the magistrate.

Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 2(E), 1973 Tex. Gen Laws 983
(amended by Act of May 26, 2015, 84th Leg., R.S., ch. 690, § 1, 2015 Tex. Gen.
Laws 2165). There was not, nor is there currently, any requirement that a warrant
show the time of the magistrate’s signature. See id.         Thus, we view the time
notation on this warrant as surplusage, and the fact that the noted time preceded the
time on the affidavit did not render the warrant invalid. The warrant contained all
the requirements of article 18.04 and reflected it was based on a probable-cause
affidavit as required under the Fourth Amendment and article 18.01(b). See U.S.
Const. amend. IV; Tex. Code. Crim. Proc. Ann. art. 18.01(b).

      However, even if we consider the time notation, we conclude the warrant
was valid. The magistrate recited that he based his probable-cause determination
on an already-executed affidavit and the magistrate’s time notation preceded the
time on the affidavit by only four minutes. Consequently, it is a reasonable
inference that one of the instruments contained the wrong time, whether the official
mistakenly wrote the incorrect time or viewed a clock that was inaccurate.

      In this regard, we disagree with appellant’s argument that Green is
controlling. In Green, the court held that the trial court erred by denying the
defendant’s motion to suppress the results of a search because the search warrant
was stale when executed. See 799 S.W.2d at 759–61. The warrant twice showed
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an issuance date of March 20 and showed an execution date of March 25. Id. at
757, 760–61. At that time, there was a requirement that a warrant be executed
within three days exclusive of the date of issuance and execution, and thus the face
of the instrument showed it was stale when executed. See id. at 757. The court
held that extraneous evidence was required to show the March 20th notation was
merely an error, but the State failed to present such evidence. See id. at 759–61.
The court also rejected the State’s attempt to rely on the probable-cause affidavit to
correct the error. See id. at 760–61. The State contended that because the police
officer swore he obtained his information on March 25 and the warrant recited it
was issued the same day as execution of the affidavit, the March 20 date was an
error and the warrant was issued March 25. See id. at 760. The court held that the
defect was not curable solely by reference to the officer’s affidavit which was
“itself a part of the controversy” and extraneous evidence was required to show
March 20 was a clerical or technical error. See id. at 760–61.

      Green is distinguishable from the present case for several reasons. In Green,
(1) the dispositive issue was a stale warrant; (2) the defect existed on the face of
the warrant because it included both the issuance and execution dates, which
negated timely execution; (3) the defect involved the issuance date, a statutory
requirement for a warrant; and (4) the alleged error in the recorded issuance date
was a mistake of being five days before the actual issuance date. See id. at 757–61.
In contrast, in the present case (1) the issue is whether a warrant was properly
based on a probable-cause affidavit; (2) there was no defect on the face of the
warrant negating that requirement was satisfied, but rather appellant relies on
reading both instruments together to assert the warrant was invalid; (3) the alleged
defect concerned a discrepancy in noted times, which was not a requirement for the
warrant; and (4) the alleged discrepancy involved only four minutes. We conclude


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that we may also read the instruments together to determine that, based on the
totality of the circumstances, the affidavit was signed before the warrant and the
preceding time on the warrant resulted from a clerical or technical error.

      In summary, the trial court did not err by denying appellant’s motion to
suppress. Accordingly, we overrule appellant’s sole issue and affirm the trial
court’s judgment.




                                       /s/       John Donovan
                                                 Justice

Panel consists of Justices Boyce, McCally, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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