                                  NO. 07-09-00334-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                     JUNE 28, 2010


                         THE STATE OF TEXAS, APPELLANT

                                            v.

                       MEREDITH JOLENE LOZANO, APPELLEE


                 FROM THE COUNTY COURT OF YOAKUM COUNTY;

                    NO. 10624; HONORABLE JIM BARRON, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      The State of Texas, by interlocutory appeal, appeals the granting of a motion to

suppress by the trial court.1 Finding that the trial court erred by granting the motion to

suppress, we reverse.


                           Factual and Procedural Background


      Because the facts that resulted in the issuance of a search warrant to collect a

specimen of blood from appellee, Meredith Jolene Lozano (Lozano), are not contested


      1
          See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (Vernon Supp. 2009).
in this appeal, we will refer to only so much of the background facts as necessary for

this opinion. On May 25, 2008, Denver City, Texas, police officer, Ryan Taylor, initiated

a traffic stop on Lozano.    After initiating the traffic stop, Taylor began investigating

Lozano for driving while intoxicated. As part of the investigation, Taylor requested a

specimen of Lozano’s breath for analysis. Lozano declined to give a breath specimen.

Taylor then prepared an affidavit in support of a search warrant to obtain a specimen of

Lozano’s blood. The affidavit was presented to a Justice of the Peace, acting as a

magistrate, in Yoakum County, Texas. The magistrate issued the search warrant, and

the blood specimen was collected.


      After the State filed an information and complaint alleging that Lozano had

operated a motor vehicle while intoxicated, Lozano filed a motion to suppress the

results of the search warrant. The motion to suppress alleged two grounds in support of

suppression of the blood test results. First, the motion alleged that the officer lacked

reasonable suspicion or probable cause to stop Lozano. Second, the motion alleged

that there was a discrepancy between the date of birth for Lozano stated in the affidavit

in support of the warrant and the date listed in the actual warrant. The trial court

conducted a hearing on Lozano’s motion to suppress and, after hearing the evidence,

denied the motion to suppress as to the reasonable suspicion or probable cause to

initiate the traffic stop but granted the motion because of the discrepancy between the

affidavit and warrant as to Lozano’s date of birth. By one issue, the State contends that

the ruling of the trial court was in error and asks this Court to reverse the trial court’s

ruling. We reverse.


                                            2
                                   Standard of Review


      As a reviewing court, we review the granting or denial of a motion to suppress

under a bifurcated standard of review. See St. George v. State, 237 S.W.3d 720, 725

(Tex.Crim.App. 2007).    The trial court is the sole trier of fact and the judge of the

credibility of the witnesses and the weight to be given their testimony. Id. Almost total

deference is given to the trial court’s determination of historical facts. Id. However,

application of the law to the facts that does not turn on credibility and demeanor are

reviewed de novo. See Keehn v. State, 279 S.W.3d 330, 334 (Tex.Crim.App. 2009).


                                        Analysis


      The trial court’s order granting the motion to suppress concluded that there was

reasonable suspicion and probable cause to support the detention of Lozano for

suspicion of driving while intoxicated. However, the trial court found that the search

warrant was insufficient because the warrant gave a different date of birth for Lozano

than that reflected in the affidavit. Based upon this finding, the trial court suppressed

the evidence that was procured by means of the search warrant.


      With this factual basis, we are squarely presented with the issue of how we

interpret the information provided in this search warrant. The State frames the question

as being one of using a commonsensical, rather than hyper-technical, interpretation of

the warrant. See Serrano v. State, 123 S.W.3d 53, 58 (Tex.App.—Austin 2003, pet.

ref’d) (citing Illinois v. Gates, 462 U.S. 213, 236, 76 L.Ed.2d 527, 103 S.Ct. 2317

(1983)). Appellant, however, contends that the mistake on the warrant is much more

than a technical mistake. The mistake in question goes directly to the issue of the
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identification of appellant and, as such, is part of the protection provided by the Fourth

Amendment to minimize the search of innocent parties. See Long v. State, 132 S.W.3d

443, 447 (Tex.Crim.App. 2004).


       The record reveals that the affidavit in support of the search warrant was

attached to the actual warrant and incorporated by reference in the warrant. See id. at

448. This is an important consideration when there is a discrepancy in a description

contained in the two documents. As stated by the Texas Court of Criminal Appeals in

Green v. State, the affidavit given to secure a search warrant controls over the search

warrant.   799 S.W.2d 756, 760 (Tex.Crim.App. 1990).           The affidavit in question

contained the correct date of birth for Lozano. Only in the warrant was there a mistake

on the date of birth. It is upon the basis of the affidavit that the magistrate must decide

whether there is probable cause for the issuance of a warrant and against whom the

warrant should be issued. See id.


       Therefore, when we return to one of the basic principles behind the requirement

of a warrant, minimizing the danger of searching the person of an innocent bystander,

we find that the affidavit correctly describes the person to be searched. See Long, 132

S.W.3d at 447 (citing Berger v. New York, 388 U.S.41, 58, 18 L.Ed.2d 1040, 87 S.Ct

1873 (1967)). Appellant concedes that the affidavit contains the correct date of birth.

And both the affidavit and warrant correctly identify appellant as the person whose

blood was to be taken, by name as “Meredith Jolene Lozano.” The other identifying

information in the affidavit, including appellant’s description as a “white female” and her

approximate height and weight, also was correctly stated in the warrant. According to

                                            4
both the affidavit and the warrant, appellant was in custody in the Denver City police

department at the time. The erroneous date of birth contained in the warrant is no more

or less than a typographical mistake and, as such, does not vitiate the validity of the

warrant. See Jones v. State, 914 S.W.2d 675, 678 (Tex.App.—Amarillo 1996, no pet.);

Rios v. State, 901 S.W.2d 704, 708 (Tex.App.—San Antonio 1995, no pet.).

Accordingly, we hold that the trial court erred by granting the motion to suppress. The

State’s issue is sustained.


                                       Conclusion


       Having determined that the trial court erred by granting the motion to suppress,

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

this opinion.




                                                       Mackey K. Hancock
                                                            Justice




Do not publish.




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