Elder Wilfredo Somoza v. State ( 2015 )

Concurring opinion issued November 24, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00716-CR
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ELDER WILFREDO SOMOZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1910774
CONCURRING OPINION
When evaluating the sufficiency of an affidavit to support a search warrant,
the well-established general rule precludes reliance upon extraneous evidence to
support the warrant. Following that rule, I would find the four corners of the
affidavit in this case sufficient to support the search warrant. Accordingly, I concur
in the judgment.
When a challenge is made to the legal sufficiency of a search warrant in
Texas, the trial court is limited to looking within the “four corners” of the affidavit.
Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App. 2003). The general rule
is that “an otherwise insufficient [warrant] affidavit cannot be rehabilitated by
testimony concerning information possessed by the affiant when he sought the
warrant but not disclosed to the issuing magistrate. . . . A contrary rule would, of
course, render the warrant requirements of the Fourth Amendment meaningless.”
Whiteley v. Warden, 401 U.S. 560, 565 n.8, 91 S. Ct. 1031, 1035 (1971). Article
18.01(b) of the Code of Criminal Procedure requires that information leading to a
probable cause determination be recorded precisely so “that the search will not be
later justified by information that was never called to the attention of the
constitutionally mandated neutral magistrate.” Clay v. State, 391 S.W.3d 94, 100
n.21 (Tex. Crim. App. 2013). The only exception is when there is a challenge
based on a known falsehood within the affidavit, which allows consideration of
evidence outside the four corners of the affidavit. Cates, 120 S.W.3d at 355 n.3.
Here, Somoza does not challenge the affidavit based on a known falsehood; rather,
he accepts it at face value and argues that it defeats probable cause.
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Both the Court of Criminal Appeals and the U.S. Supreme Court thus have
cautioned against using extrinsic testimony to supplement or rehabilitate a
defective affidavit. Allowing oral testimony to supplement the affidavit at a
suppression hearing opens the door to further testimonial correction of affidavits
beyond clerical errors. Such a procedure could be prone to abuse. See WAYNE R.
LAFAVE, 2 SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 4.3(a), at 640 (5th ed. 2012).
In this case, the court relies upon cases referring to defects in a search
warrant for the proposition that purely technical defects can be remedied by sworn
testimony. See, e.g., Green v. State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990).
While these authorities permit testimony to explain a defect in a warrant, they do
not justify similar testimony to explain substantive defects in an affidavit used to
obtain the warrant.
This case can be resolved under the guidelines of McLain v. State, 337
S.W.3d 268 (Tex. Crim. App. 2011), in which the Court of Criminal Appeals
instructed us to interpret affidavits “in a commonsensical and realistic manner,
recognizing that the magistrate may draw reasonable inferences.” McLain, 337
S.W.3d at 271 (quoting Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App.
2007)). Appellate courts are required to defer to all reasonable inferences that
magistrate could have made and give “great deference” to the magistrate’s finding
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of probable cause. Id. A highly deferential reading of the facts on the face of the
affidavit here is sufficient to affirm the trial court.
Officer Rodriguez stated in his affidavit that he had reason to believe
Somoza was driving while intoxicated “on or about July 31, 2013 at 11:59 AM.”
Officer Rodrgiuez further stated that he was “on patrol” at the time he observed
this. Somoza admitted that he drank two beers. Officer Rodriguez was trained and
had experience with drawing blood to determine a person’s level of intoxication.
His affidavit stated a belief, based on all his observations, that a blood sample
would provide evidence of Somoza’s state of intoxication, as well as the type of
substance consumed. The affidavit was sworn and subscribed on August 1, 2013 at
1:38 a.m.
Taken at face value, the affidavit establishes that 13.5 hours passed between
the observation of intoxicated driving and the execution of the affidavit. If the
affidavit were correct in this regard, it would mean that Officer Rodriguez
implausibly worked a minimum of 13 hours before swearing out his affidavit. That
literal reading also would significantly undercut Officer Rodriguez’s stated belief
that a blood draw would lead to evidence of intoxication, contrary to the common
sense that magistrates are expected to use in evaluating the affidavit. Taking the
affidavit literally also would mean that Somoza had admitted to drinking two beers
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in the morning. While not entirely unheard-of, * most people don’t drink beer
before noon.
Drawing all of these observations from within the four corners of the
affidavit supports the reasonable inference that the stated time was a single-
character typographical error and “PM” was intended instead of “AM.” Reading
“11:59 AM” to have meant “11:59 PM” resolves the inconsistencies arising from a
literal reading. The magistrate could have made these reasonable inferences in the
course of making his probable cause determination, and we are required to defer to
such inferences. The information within the four corners of the affidavit is
sufficient to conclude that probable cause existed to support the warrant.
I would affirm the trial court’s ruling without considering the extrinsic
evidence adduced at the suppression hearing.
Michael Massengale
Justice
Panel consists of Justices Keyes, Massengale, and Lloyd.
Justice Massengale, concurring.
Publish. TEX. R. APP. P. 47.2(b).
*
See, e.g., ALAN JACKSON & JIMMY BUFFETT, IT’S FIVE O’CLOCK
SOMEWHERE (Arista Nashville 2003).
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