
                                          NO. 07-10-0031-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                             MAY 11, 2011








                                      DENNIS SALZIDO, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE





                           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY;

                           NO. 1123446D; HONORABLE GEORGE GALLAGHER, JUDGE





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


                                          MEMORANDUM OPINION


      Appellant, Dennis Salzido, was convicted  following  a  jury  trial  of  felony  driving  while
intoxicated,[1] enhanced by two prior felony convictions,[2] and was sentenced to  twenty-five  years
confinement.  In two points of error, Appellant asserts the trial court erred by denying  his  motion
to suppress because (1) reasonable suspicion did not exist  for his initial  detention  and  (2)  the
search warrant issued for a sample of his blood was not supported by adequate  probable  cause.    We
affirm.

                                              Background

      On December 3, 2008, a Tarrant County Grand Jury  returned  an  indictment  alleging  that,  on
August 7, 2008, Appellant operated a  motor  vehicle  in  a  public  place  while  intoxicated.   The
indictment also contained a felony repetition paragraph for two earlier DWI convictions  in  February
2005 and June 1997, and a habitual offender notice for two felony  convictions  for  assault  causing
bodily injury to a family member in June 2006, and aggravated robbery causing serious  bodily  injury
in December 1986.

      On May 11, 2009, Appellant filed a motion to suppress all tangible  evidence  seized  from  him
and his vehicle on August 7, 2008, including an open twelve-pack of beer,  all  statements,  and  the
results of any analysis of Appellant's breath and/or blood due to an illegal stop or  detention.   On
November 16, 2009, Appellant amended his motion  to  suppress  to  further  allege  that  the  search
warrant issued for a sample of Appellant's blood was defective.

      The trial court held a suppression hearing on December 2.  Corporal Pat McGrail  of  the  Hurst
City Police Department testified that, on August 7,  2008,  he  was  working  an  accident  on  State
Highway 10 when he observed Appellant's pickup drive through  an  intersection  before  coming  to  a
complete stop in the middle of the roadway and obstructing traffic.  He approached the  pickup  truck
and observed Appellant in the driver's seat, passed-out with his head slumped back on  the  headrest.
His right hand was on the steering wheel and an open can of beer was in his lap.  There was  an  open
twelve-pack of beer on the passenger-side floorboard.  The pickup was in  "Drive,"  Appellant's  foot
was on the brake and he was unresponsive.  Corporal McGrail reached in the cab, placed the pickup  in
"Park" and turned off the ignition.  He detected a moderate to heavy  odor  of  alcohol  coming  from
Appellant's person and the pickup's interior.

      After Corporal McGrail gave Appellant  several  verbal  commands  and  grabbed  his  wrist,  he
awakened.  Appellant appeared disoriented, unsteady, and slow to respond.  His  eyes  were  bloodshot
and watery while his speech was heavy and slurred.  He was unable to walk without assistance  and  he
smelled of alcohol.  At that time, Corporal McGrail believed Appellant to be a danger to himself  and
others.

      Officer Miguel Jimenez then administered field  sobriety  drills  which  corroborated  Corporal
McGrail's  account  of  Appellant's  behavior  and  physical  condition.    Officer   Jimenez   first
administered the horizontal gaze nystagmus drill and Appellant exhibited six, out of a possible  six,
clues.  Due to Appellant's complaints of a back injury, Officer Jimenez did not  perform  either  the
walk and turn drill or the one-legged stand drill.  Instead, he  administered  the  nose-touch  drill
and Appellant was unable to touch the tip of his nose.  When Appellant was given the alphabet  drill,
he was unable to complete the sequence as instructed and was  confused.   Given  the  drill  results,
Appellant's bloodshot eyes, his instability, slurred speech, and the odor of alcohol coming from  his
person, when combined with the other officer's observations,  Officer  Jimenez  determined  Appellant
was intoxicated and placed him under  arrest  for  DWI.   After  placing  Appellant  in  custody  and
learning of his two prior DWI convictions, the officers requested  a  blood  sample  which  Appellant
refused.  The officers then decided to seek a search warrant for a blood specimen.

      Corporal McGrail prepared the search  warrant.   The  warrant  recounted  the  previous  events
observed by the officers as well as the results of Officer  Jimenez's  field  sobriety  drills.   The
warrant was prepared by using, as a template, a warrant previously issued on June 7, 2008, where  the
suspected person was a John A. Hoover.  During the  warrant  preparation  process,  Corporal  McGrail
inadvertently left some of the information from the earlier warrant  in  the  text  of  new  warrant.
These errors included leaving the date June 7, 2008 in the first paragraph even  though  the  correct
date of August 7, 2008 was used throughout the remainder of the warrant.   Also,  the  name  "Hoover"
was left remaining  in  a  single  sentence,  although  Appellant's  correct  legal  name,  "Dionisio
Salzido," was utilized throughout the remainder of the warrant.  Further, in several instances  where
Appellant's name appeared, it was prefaced by "John" or "John A."--Hoover's  first  name  and  middle
initial.

      Judge Ken Whiteley, Municipal Judge for the City of Hurst, Texas,  testified  that  he  visited
with Officer Jimenez at 2:00 a.m. on August 8, 2008, at his  house.   Judge  Whiteley  discussed  the
warrant with Officer Jimenez and determined sufficient probable cause had been  established  for  the
warrant to issue.

      At the hearing's conclusion, the trial court denied Appellant's  motion  to  suppress.   In  so
doing, the trial court determined that, after Corporal McGrail observed  Appellant's  pickup  stopped
in the middle of the roadway, Corporal McGrail had a reasonable suspicion  to  approach  the  pickup.
The trial court found that Corporal McGrail had a  reasonable  suspicion  to  believe  Appellant  was
operating a motor vehicle in a public place while intoxicated when he observed Appellant  unconscious
in the driver's seat, with an open can of beer in his lap, the pickup in "Drive," his right  hand  on
the steering wheel and his foot on the brake, coupled  with  the  smell  of  alcohol  on  Appellant's
person and inside the pickup.  When this was further confirmed by Officer  Jimenez's  field  sobriety
drill results, he held the officers had probable  cause  to  arrest  Appellant  and  seek  his  blood
sample.  Despite the technical errors in  the  warrant,  the  trial  court  ruled  that  the  warrant
contained sufficient facts to establish probable cause that a DWI offense had occurred.

      Following a two day jury trial, the jury convicted Appellant  of  DWI,  enhanced.   Thereafter,
the trial court sentenced Appellant to twenty-five years confinement.

                                              Discussion

      Appellant asserts that his detention and  subsequent  investigation  were  unsupported  by  any
reasonable suspicion on behalf of the officers because he had committed no traffic violation and  was
not driving erratically.  He asserts the search warrant for his blood sample  was  defective  because
an erroneous date, June 7, 2008, was listed in the warrant's first paragraph and  the  name  "Hoover"
was used once.  In addition, he contends the warrant was defective because it states  Appellant  "was
asked to perform standard field sobriety drills" when he was  only  asked  to  perform  one  standard
field sobriety drill, i.e., the horizontal gaze nystagmus drill.


                                          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 on appeal for abuse  of  discretion.   State  v.  Dixon,  206  S.W.3d  587,  590
(Tex.Crim.App. 2006).  The trial court's ruling will be upheld if it is reasonably supported  by  the
record and is correct under any theory of law applicable to the case.  Amador v.  State,  275  S.W.3d
872, 878-79 (Tex.Crim.App. 2009) (citing Ramos  v.  State,  245  S.W.3d  410,  417-18  (Tex.Crim.App.
2008)).  The trial court is the sole fact finder at a suppression  hearing  and  it  may  believe  or
disbelieve all  or  any  part  of  a  witness's  testimony.   State  v.  Ross,  32  S.W.3d  853,  855
(Tex.Crim.App. 2000).  Moreover, at a suppression hearing, the trial court,  like  any  fact  finder,
may make reasonable inferences from the evidence presented.  State v. Garcia-Cantu, 253  S.W.3d  236,
241 (Tex.Crim.App. 2008).

      When reviewing a decision by a judge or magistrate to issue a  search  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, 76 L.Ed.2d 527 (1983). See Rodriguez v. State, 232 S.W.2d  55,  61
(Tex.Crim.App. 2007).  That  is,  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.  See Swearingen v. State, 143 S.W.3d  808,  810  (Tex.Crim.App.
2004).

      Finally, 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 a light  most
favorable to the trial court's ruling, supports those fact findings.   State  v.  Kelly,  204  S.W.3d
808, 818 (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 819.

                                     Detention and Investigation

      There are three distinct categories of  interactions  between  police  officers  and  citizens:
encounters, investigative detentions, and arrests.  Partee v.  Tex.  Dep't.  of  Public  Safety,  249
S.W.3d 495, 500 (Tex.App.--Amarillo 2007, no pet.)  (citing  State  v.  Perez,  85  S.W.3d  817,  819
(Tex.Crim.App. 2002)). Encounters occur when police officers approach an individual in public to  ask
questions, and do not require any justification whatsoever on the part of  the  officer.   Harper  v.
State, 217 S.W.3d 672, 674 (Tex.App.--Amarillo 2007, no pet.).  Police officers do  not  violate  the
Fourth Amendment by merely approaching an individual in a public  place,  by  asking  him  if  he  is
willing to answer some questions, by putting questions to him if the person is willing to listen,  or
by offering in evidence in a criminal prosecution his voluntary answers to  such  questions.   Perez,
85 S.W.3d at 819.


      An investigative detention occurs when a police officer detains a person  reasonably  suspected
of criminal activity to determine his identity or momentarily maintain the status quo  while  seeking
additional information.  Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App. 1987).  A law  enforcement
officer need not have probable cause to detain an individual for investigative  purposes.   See  Hall
v. State, 74 S.W.3d 521, 525 (Tex.App.--Amarillo 2002, no pet.).  Rather, the officer may  conduct  a
temporary lawful detention when he has a reasonable suspicion to believe a person  is  violating  the
law.  Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005).


      Reasonable suspicion exists if the officer has specific, articulable facts that, when  combined
with rational inferences from those facts, would lead him to reasonably conclude  that  a  particular
person actually is, has been, or soon will be engaged in a criminal activity.  Castro v.  State,  227
S.W.3d 737, 741 (Tex.Crim.App. 2007); Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001).   The
acts or circumstances need not be criminal in themselves to create reasonable  suspicion.   Woods  v.
State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997).  Thus, we examine the totality  of  the  circumstances
to determine whether Appellant’s detention and  the  subsequent  investigation  were  reasonable  and
justified.  See Curtis v. State, 238 S.W.3d 376, 381 (Tex.Crim.App.  2007);  Castro,  227  S.W.3d  at
741.

      After observing Appellant's pickup come to a complete  stop  in  the  middle  of  the  roadway,
Corporal McGrail approached the pickup.   When  he  looked  inside,  he  observed  Appellant  in  the
driver's seat, unconscious with his head slumped back on the headrest.  Appellant had an open can  of
beer on his lap and there was an open cardboard container containing eleven beers in  the  passenger-
side floorboard.  The pickup  was  in  "Drive,"  Appellant's  foot  was  on  the  brake  and  he  was
unresponsive.  Corporal McGrail placed the pickup in "Park" and turned off the ignition.  Up to  this
point, Corporal McGrail was engaged in an encounter.  See Harper, 217  S.W.3d  at  674-75  (collected
cases cited therein).

      When Corporal McGrail gave Appellant  several  verbal  commands  and  grabbed  his  wrist,  the
encounter  became  an  investigative  detention.   At  this  point,  Corporal  McGrail  had  specific
articulable facts which, when combined with rational inferences therefrom, allowed him to  reasonably
suspect Appellant had been, and was, operating a motor vehicle in a public place  while  intoxicated,
i.e., Appellant's truck was running while parked in the middle of  the  roadway  obstructing  traffic
with his foot on the brake; he was unconscious and unresponsive with an open can of beer in his  lap;
an open twelve-pack of beer was on the passenger-side floorboard; and a moderate  to  heavy  odor  of
alcohol emanated from his person  and  the  interior  of  the  pickup.[3]   Accordingly,  Appellant's
initial detention and the officer's subsequent DWI investigation were reasonable and justified.   See
Partee, 249 S.W.3d at 501.  Appellant's first point of error is overruled.

                                            Search Warrant

      Generally, taking a blood sample is a search and seizure  within  the  meaning  of  the  Fourth
Amendment to the United States Constitution; Schmerber v. California, 384 U.S.  757,  767,  86  S.Ct.
1826, 16 L.Ed.2d 908 (1966), and Article 1, Section  9  of  the  Texas  Constitution.   Escamilla  v.
State, 556 S.W.2d 796, 799 (Tex.Crim.App. 1977).    If a person refuses to consent to the  taking  of
a blood sample, the police may obtain a defendant's blood for  DWI  investigation  through  a  search
warrant.  Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App. 2002); Muniz v. State, 264  S.W.3d  392,
396 (Tex.App.--Houston [1st Dist.] 2008, no pet.).  See Tex. Code  Crim.  Proc.  Ann.  art.  18.10(j)
(West Supp. 2010).

      A search warrant may not issue unless it is based on probable cause as  determined  within  the
four corners of a sworn affidavit.  Tex. Code Crim. Proc. Ann. art. 18.01(b) (West  Supp.  2010)  ("A
sworn affidavit . . . establishing probable cause shall be filed in every instance in which a  search
warrant is requested.")  See Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App. 1992), cert.  denied,
507 U.S. 921, 113 S.Ct. 1285, 122  L.E.2d  678  (1993).   "Probable  cause  exists  when,  under  the
totality of circumstances, there is a 'fair probability' that contraband or evidence of a crime  will
be found at a specified location."  Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App.  2007).   In
making our evaluation, we focus on the combined force of the facts that are in the affidavit  coupled
with inferences from those facts, to establish whether there is a "fair  probability"  that  evidence
of a particular crime will likely be found; id., while affording the  initial  judicial  decision  to
issue the search warrant great deference.  Davis v. State, 144 S.W.3d 192, 197 (Tex.App.--Fort  Worth
2004, pet. ref'd).

      "[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.,  and  parol
evidence, in the form of explanatory testimony, may be used to cure technical defects.  Id.  at  760.


      Here, Corporal McGrail's isolated errors in drafting the  affidavit  by  failing  to  delete  a
single date and name from his template  may  be  classified  as  either  clerical  or  typographical.
Throughout the remainder of the affidavit, Appellant's legal name and the  correct  date  were  used.
We hold that the trial court properly considered Corporal  McGrail's  testimony  explaining  why  the
conflicting date and name were clerical or typographical errors and that the evidence,  viewed  in  a
light most favorable to the trial court's fact findings, supports  the  trial  court's  determination
that these isolated  errors  were  clerical  errors  made  by  Corporal  McGrail  in  completing  his
paperwork.  See Kelly v. State, 204 S.W.3d 808, 818-19 (Tex.Crim.App. 2006);  Green,  799  S.W.2d  at
760.  Because these clerical errors are not the type of error  that  would  invalidate  an  otherwise
valid search warrant, we find that the trial court did not  err  by  denying  Appellant's  motion  to
suppress.[4]

      Neither did the trial  court  err  in  denying  Appellant's  motion  to  suppress  because  the
affidavit stated that "Salzido was  asked  to  perform  standard  field  sobriety  drills."   At  the
suppression hearing, Officer Jimenez testified that he asked Appellant to perform the standard  field
sobriety drills, i.e., horizontal gaze  nystagmus,  walk  and  turn,  and  one-legged  stand  drills.
However, because Appellant told  him  he  had  back  issues,  Officer  Jimenez  first  performed  the
horizontal gaze nystagmus drill and then decided to perform the following non-standardized drills  --
nose-touch, counting and alphabet drills.  Officer  Jimenez  testified  Appellant  exhibited  extreme
nystagmus and could not perform the other drills, i.e., as  the  affidavit  stated,  "Salzido  failed
each of the drills" and, "[i]n addition, failed the Nystagmus drill."

      Further, although the affidavit appears  to  indicate  that  Appellant  was  asked  to  perform
standard field sobriety drills and failed  only  "standard"  drills  rather  than  a  combination  of
"standard" and "non-standard" drills, there was no evidence presented at the suppression  hearing  to
indicate that failing "standard" drills as opposed to "non-standard" drills  was  any  more  or  less
indicative of Appellant's intoxicated condition.[5]  In fact, even without reference to  the  drills,
there remained sufficient evidence in the affidavit  to  support  a  finding  of  probable  cause  to
believe Appellant was operating a motor vehicle in a public place while intoxicated.   The  affidavit
stated that Appellant's pickup came to a complete stop in the middle of the  roadway  with  Appellant
inside slumped back in the driver's seat with his head tilted back  over  the  headrest,  the  engine
running, the ignition on, the transmission in  "Drive,"  his  foot  on  the  brake  and  a  partially
consumed can of beer in his lap while his right hand was on the steering wheel.  Further,  it  states
there was an open twelve-pack of beer on the floorboard and, when Appellant exited the  vehicle,  his
speech was heavy and slurred, his eyes bloodshot  and  watery,  he  had  difficulty  maintaining  his
balance and had an alcoholic odor about his  breath  and  body.   Accordingly,  we  find,  under  the
totality of the circumstances, that the trial court did not  abuse  its  discretion  in  finding  the
affidavit established a "fair probability" that evidence of intoxication would  likely  be  found  if
Appellant's blood were tested.  Appellant's second point of error is overruled.

                                              Conclusion

      The trial court’s judgment is affirmed.



                                             Patrick A. Pirtle
                                                   Justice
Do not publish.
-----------------------
[1]See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2) (West 2003).

[2]See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2010).

[3]Moreover, after looking in the pickup and observing Appellant with an open can of beer, there  was
probable cause to arrest him for violating the open container law.  A person commits  an  offense  if
the person knowingly possesses an open container in a passenger area  of  a  motor  vehicle  that  is
located on a public highway, regardless of whether the vehicle is being operated, or  is  stopped  or
parked.  Tex. Penal Code Ann. § 49.031(b) (West 2003).  An "open container" is defined as "a  bottle,
can, or other receptacle that contains any amount  of  alcoholic  beverage  that  is  open";  Id.  at
49.031(a)(1), and "passenger area of a motor vehicle" is defined as "the area of  the  motor  vehicle
designed for the seating of the operator and passengers of the vehicle."  Id. at § 49.031(2).

[4]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  a
typographical error), cert. denied, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 901  (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,
162 Tex. Crim. 356, 285 S.W.2d 221, 222 (1955) (upholding warrant when  testimony  was  offered  that
"December" was mistakenly written on warrant affidavit instead of "January").

[5]Corporal McGrail testified the non-standard drills were alternatives to the standard drills.



