Michael Curtis Schornick v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00183-CR
MICHAEL CURTIS SCHORNICK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Michael Curtis Schornick appeals his conviction for felony driving
while intoxicated (DWI). In a single point, Schornick argues that the trial court
erred by denying his motion to suppress the results of a blood test. We will
affirm.
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See Tex. R. App. P. 47.4.
II. FACTUAL & PROCEDURAL BACKGROUND
At 2:04 a.m. on January 31, 2009, Schornick was arrested for DWI. That
same day, the arresting officer, Texas Department of Public Safety Trooper Juan
Flores, filled out an affidavit for a search warrant for Schornick‘s blood, had it
notarized, and faxed it to the magistrate. The magistrate issued the warrant that
day, and the phlebotomist drew Schornick‘s blood that day. In the supporting
affidavit, Trooper Flores described the events substantiating probable cause, but
he wrote that the stop occurred on January 31, 2008, rather than January 31,
2009.
This discrepancy between the year Trooper Flores wrote in the affidavit
and the year the magistrate was presented with that affidavit became the subject
of a hearing on Schornick‘s motion to suppress. At the hearing, the State called
Trooper Flores to testify about the discrepancy. Trooper Flores testified that he
arrested Schornick in the early morning hours of January 31, 2009 and that he
simply made a clerical error in writing ―2008‖ as the year. Trooper Flores testified
that, on the morning that he faxed the affidavit for the search warrant to the
magistrate, he first called the magistrate and informed him that a suspect had
refused to give a blood sample and that he was faxing over a ―search warrant
packet.‖
The trial court denied the motion to suppress and made the following
findings of fact and conclusions of law:
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FINDINGS OF FACT
The court finds as a matter of fact that all of the events
described in the search warrant affidavit occurred on
January 31, 2009, and that the error in the date on the
affidavit was a clerical error made by Trooper Flores in
completing his paperwork.
CONCLUSIONS OF LAW
In light of the totality of the circumstances, including the
dates on the fax time stamps on both the affidavit and
warrant, the date listed by the notary on the affidavit as
the date sworn, the date on the warrant itself, the nature
of the Parker County felony DWI search warrant
program in which Judge Akers was a participant, and
the explanatory testimony of Trooper Flores revealing
that the discrepancy here was a clerical or typographical
error, the Court concludes as a matter of law that the
incorrect dates placed on the affidavit by Trooper Flores
were sufficiently explained to be mere clerical or
typographical errors and that the totality of the
circumstances supports the sufficiency of the probable
cause determination of Judge Akers, the issuing
magistrate. Therefore the present search warrant was
validly issued based on probable cause not
withstanding the above-described discrepancy in dates.
Schornick entered a plea of ―guilty‖ pursuant to a plea bargain and a plea
of ―true‖ to the enhancement allegations. The trial court sentenced Schornick to
thirty years‘ confinement. Schornick now appeals the denial of his pretrial motion
to suppress.
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III. MOTION TO SUPPRESS
In his sole point, Schornick argues the trial court erred by denying his
motion to suppress because the information contained within the four corners of
the underlying affidavit failed to establish the requisite probable cause necessary
for the issuance of a search warrant. Specifically, Schornick argues that the
information contained in the supporting affidavit was ―stale‖ because the date on
the affidavit was January 31, 2008, rather than January 31, 2009.
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) (Vernon Supp. 2010); State v.
Johnston, 305 S.W.3d 746, 750 (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) (―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 (Tex. App.—Fort Worth
1994, pet. ref‘d).
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
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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 (quoting 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.
―[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. To avoid providing protection to those whose appeals are based
not on substantive issues of probable cause, but rather, on technical default by
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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
The affidavit prepared in this case stated that the stop, and the events
giving rise to the stop and subsequent arrest, of Schornick occurred on January
31, 2008. Nevertheless, Trooper Flores explained this error at the suppression
hearing; he testified that the events leading up to Schornick‘s arrest occurred on
January 31, 2009, rather than one year earlier as stated in the affidavit, and that
the discrepancy in the year in the affidavit was a clerical error. He further
testified that he had never met or arrested Schornick in January 2008. The
affidavit was notarized and faxed to the magistrate on January 31, 2009, and the
warrant was signed by the magistrate and faxed back to the officer on January
31, 2009. Every page of the affidavit and subsequent warrant bore a date stamp
from the fax machine of January 31, 2009, on the top of each page.
We hold that the trial court properly considered Trooper Flores‘s testimony
explaining why the conflicting date was a clerical error and that the evidence,
viewed in the light most favorable to the trial court‘s fact findings, supports the
trial court‘s finding that the error in the date on the affidavit was a clerical error
made by Trooper Flores in completing his paperwork. See Kelly, 204 S.W.3d at
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818–19; Green, 799 S.W.2d at 760. Because this clerical error is not the type of
mistake that would invalidate the search warrant, we therefore hold that the trial
court did not err by denying Schornick‘s motion to suppress. 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. 1020 (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‖); cf.
Green, 799 S.W.2d at 757 (holding warrant was not supported by probable cause
because State failed to demonstrate why affidavit dated five days prior to search
warrant‘s execution was clerical error). Accordingly, we overrule Schornick‘s
sole point.
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IV. CONCLUSION
Having overruled Schornick‘s sole point, we affirm the trial court‘s order
denying his motion to suppress.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 4, 2010
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