Welborn, Casey

• Court: Court of Appeals of Texas
• Decided: August 17, 2015
• Docket: PD-1058-15
• Status: Published

Opinion

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

2  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

3 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

4 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).

5 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

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

2 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.

3 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

6 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”).

7 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