Welborn, Casey ( 2015 )

PD-1058-15
PD-1058-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/14/2015 9:43:41 AM
Accepted 8/17/2015 2:17:19 PM
ABEL ACOSTA
COURT OF CRIMINAL APPEALS CLERK
PD-_______-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
Appellee’s Motion to Extend Time to File
Petition for Discretionary Review
Michael Mowla
445 E. FM 1382 No. 3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Appellee
August 17, 2015
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
To the Honorable Judges of the Court of Criminal Appeals:
Appellee Casey Welborn moves for an extension of time of 30 days to file a
petition for discretionary review:
1. On July 30, 2015, in State v. Welborn, No. 02-14-00464-CR, 2015
Tex. App. LEXIS 8001 (Tex. App. Fort Worth, July 30, 2015), the Court of
Appeals reversed and remanded the order of the trial court that granted Appellee’s
motion to suppress. See attached.
2. The petition for discretionary review is due on August 29, 2015.
3. For good cause, Appellee asks for an extension of 30 days until
September 28, 2015 to file the petition for discretionary review.
4. No previous extension to file the petition for discretionary review has
been filed.
5. Appellee relies on the following facts as good cause for the requested
extension: undersigned counsel Michael Mowla just completed briefs in Collins v.
State, 08-15-00103 (murder case), in the Eighth Court of Appeals, and in Jackson
v. State, 05-15-00414-CR, in the Fifth Court of Appeals.
6. Further, Mowla has the following briefs, petitions for discretionary
review, or other pleadings due soon:
 Zimmerman v. Harris, 15-50424, appellant’s brief due on August 20,
2015 in the Fifth Circuit
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 Burks v. Price, 15-40799, appellant’s brief due on August 25, 2015 in
the Fifth Circuit
 USA v. Boutte, writ of habeas corpus under 28 U.S.C. § 2255 due on
August 27, 2015 in the Eastern District of Texas
 Munoz v. State, 05-15-00158-CR, appellant’s brief due on September
12, 2015 in the Fifth Court of Appeals
 Gresham v. Fischer, 15-50642, appellant’s brief due on September
16, 2015 in the Fifth Circuit
7. In addition, Mowla continues work on a federal habeas corpus death
penalty case, Jones v. Stephens, 4:05-CV-638-Y.
8. And, Mowla is working on a federal death penalty habeas case in
Green v. Director, 3:15-cv-02197-M-BH.
9. Further, Mowla also continues work on a state habeas corpus death
penalty case, Ex parte Thomas, F86-85539, in the 194th Judicial District Court.
10. Finally, Mowla continues work on several habeas cases involving the
underlying issue in Miller v. Alabama, 132 S. Ct. 2455 (2012).
11. Mark Lassiter has a heavy trial and hearings docket between today
and through September, 2015.
12. This Motion is not filed for purposes of delay, but so that justice may
be served.
Prayer
Appellee prays that this Court grant this motion for an extension of time to
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file a petition for discretionary review.
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
Michael Mowla
445 E. FM 1382 No. 3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Appellee
/s/ Michael Mowla
By: Michael Mowla
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Certificate of Service
I certify that on August 14, 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
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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
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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
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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.
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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
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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”).
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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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