Green v. State

• Decision Date: 28 November 1990
• Docket Number: 369-89,Nos. 368-89,s. 368-89
• Citation: 799 S.W.2d 756
• Parties: Daena April GREEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 756

799 S.W.2d 756

Daena April GREEN, Appellant, v. The STATE of Texas, Appellee.

Nos. 368-89, 369-89.

Court of Criminal Appeals of Texas.

Nov. 28, 1990.

Julie B. Pollock, San Antonio, for appellant.

Fred G. Rodriguez, Dist. Atty., Chris De Martino, Barbara Hervey, Asst. Dist. Attys., San Antonio, and Robert Huttash, State's Atty., Austin, for the State.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant filed a pre-trial motion to suppress alleging a search warrant was executed in an untimely manner and the warrant affidavit failed to establish probable cause for issuance of the warrant. The motion was subsequently overruled. Preserving the right to appeal the trial court's ruling on the motion, appellant was convicted on her plea of "no contest" for the offenses of possession of amphetamine and possession of marijuana and sentenced pursuant to a plea agreement to concurrent terms of ten years in the state penitentiary with a fine of $250.00 assessed on each offense. Sentences and fines were suspended and appellant was placed on probation. On direct appeal a panel of the Fourth Court of Appeals, with one Justice concurring, found the underlying affidavit contained sufficient supporting facts so as to constitute probable cause, but concluded that conflicting dates on the face of the affidavit and warrant indicating the latter instrument was filed before the supporting document was sworn out by the complainant, necessitated a holding that the warrant was stale when executed and the subsequent seizure invalid. Green v. State, 765 S.W.2d 887 (Tex.App.--San Antonio 1989). In so holding, the court below rejected the State's contention that the conflicting dates were the product of clerical error. This Court granted the State's Petition for Discretionary Review to determine the correctness of that decision. TEX.R.APP.P. 200(c)(6). After further review, we will affirm.

The face of the search warrant reflects a notation it was signed and issued by the magistrate on March 20, 1987. The return on the warrant recites it was executed on March 25, 1987. Facially, then, the warrant violates the requirements of Art. 18.07, V.A.C.C.P., which provides a warrant shall be executed within a time frame of three days, exclusive of the day of issuance and day of execution. ¹ This is the crux of appellant's argument which was rejected by the trial court but accepted by the Court of Appeals.

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 of the warrant against an innocent third party. Bridges v. State, 574 S.W.2d 560 (Tex.Cr.App.1978). These objectives are not furthered by rigid application of the rules concerning warrants; as this Court has previously stated, "(We) are convinced that the rights of society and of the innocent third party can best be protected by evaluating each search warrant individually." Id. at 562. Just as we will evaluate the encompassing issue of probable cause by measuring the factual sufficiency of an affidavit and warrant by the "Totality of Circumstances" test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), so do we review technical discrepancies with a judicious eye for the procedural aspects surrounding issuance and execution of the warrant. To do otherwise would defeat the purpose behind the warrant requirement, and provide protection for those to whom the issue on appeal is not one based upon the substantive issue of probable cause but of technical default by the State.

In reaching its decision, the Court of Appeals concluded the State had failed to demonstrate why the conflicting dates were the result of technical, or clerical error:

The State argues that courts must interpret affidavits and warrants in a common sense and realistic fashion. Faulkner v. State, 537 S.W.2d 742 (Tex.Crim.App.1976) (holding that court must use common sense in interpreting warrant containing grammatical error). We agree. However, there is no reason, other than a, perhaps, laudable desire to affirm, to conclude under the guise of 'common sense' that the March 20 date, rather than the March 25 date, is a mistake. To do so would be to change the issuance date solely to make the seizure valid under the warrant. See Swanson v. State, supra.

The record reveals no evidence which indicates the March 20 issuance date is in error. We conclude that the warrant was stale when executed and the seizure was invalid.

Green v. State, 765 S.W.2d at 888. Because the court below saw "no evidence" to explain the error, it relied upon this Court's decision in Swanson v. State, 113 Tex.Crim. 104, 18 S.W.2d 1082 (1929), to conclude the warrant was invalid as "stale."

In Swanson, the appellant was convicted of transporting intoxicating liquor and sentenced to serve a year in the penitentiary. On appeal, he argued the warrant under which he was arrested was invalid because it had been issued some seven days before it was executed. Concluding on original submission that the officers had probable cause to search the vehicle without a warrant, ² the Court nevertheless held the warrant invalid. Judge Lattimore wrote:

From the evidence heard it appears that on November 16th the officer who had said warrant, under permission of the issuing magistrate, changed the date of issuance thereof from November 10th to November 16th, and at the same time and with the same permission, he inserted in the affidavit matters further descriptive of the automobile alleged to belong to appellant. Article 317, Code Cr.Proc. 1925, plainly and positively says of a search warrant that it must be executed within three days from date of issuance, and this mandate of the statute was embodied and made part of the warrant in this case. Three full days after date of issuance on November 10th, 1928 ³, said warrant became functus officio, and we perceive no way by which life could be injected into it thereafter. * * * Under the facts before us in this case, we must hold the warrant invalid, and the search, insofar as its legality depended on the warrant, to be also unauthorized.

Swanson v. State, 18 S.W.2d at 1082. Just as old Art. 317 specifically required execution of a warrant within three days of issuance, so too has this restriction been carried forward in Chapter 18.

In the concurring opinion below, Justice Chapa revisited two cases from this Court in which similar claims to that of appellant were raised. The jurat in Martinez v. State, 162 Tex.Crim. 356, 285 S.W.2d 221 (1955), recited the affidavit was sworn to before a magistrate on December 13, 1955, whereas it was in fact sworn to on January 13, 1955, the same day the warrant issued. The Court rejected the appellant's claim of an invalid warrant:

Evidence was heard by the court in the absence of the jury as to the issuance of the search warrant. A part of such evidence consisted of the testimony of the magistrate who issued the warrant.

* * * * * *

It was the testimony of the magistrate that the word December was a clerical error on the part of the person who prepared the instrument, and that in fact the affiants appeared before him, signed the affidavit and swore to it on January 13, 1955.

In view of this testimony, which is undisputed, the error is not such as would vitiate the warrant.

Martinez v. State, 285 S.W.2d at 222.

Citing Martinez, Judge Odom, writing for the Court in Lyons v. State, 503 S.W.2d 254 (Tex.Cr.App.1973), confronted a documentary inconsistency like the one at bar. Lyons contended the trial court erred in admitting into evidence certain fruits of a search conducted under warrant authority because the warrant was dated March 11, 1971, whereas the affidavit for the search warrant was dated July 11, 1971, with the search being conducted on that date. As in Martinez, there was testimony in the record reflecting both the affidavit and warrant were prepared on July 11, 1971. There was further testimony, undisputed by the defense, that the date of March 11, 1971, which appeared on the search warrant was a typographical error. In light of such evidence, the Court found the warrant valid. Id.

The Court more recently addressed the question in terms of an arrest warrant. In Rougeau v. State, 738 S.W.2d 651 (Tex.Cr.App.1987), the warrant was actually issued on January 6, 1978 but was dated January 6, 1977, a difference of one year. On the basis of evidence elicited in evidentiary hearings during the appellant's first and second trials, we held "that the error pertaining to the year that was placed on the arrest warrant, 1977, was clearly a typographical error. This kind of error will not vitiate either an arrest or search warrant." Id. at 663.

When a search warrant is not executed within the time period provided by articles 18.06 and 18.07, see ante, it becomes "functus officio", having no further official force or effect. It follows that any search whose legality depends on the warrant is unauthorized. Swanson, supra. However, as seen in the cases annotated above, purely technical discrepancies in dates or times do not automatically vitiate the validity of search or arrest warrants. The issue then becomes whether a warrant containing a discrepancy in time of issuance and execution so as to make the warrant apparently invalid under Art. 18.06 and 18.07, may nevertheless be held to be a valid instrument under which a proper search or seizure can be conducted, where there is no testimony in the record to reflect the discrepancy in time or date is merely a matter of technical or clerical error.

The small number of cases dealing with the issue have all apparently decided a particular document's validity by pointing to the existence of testimony in the record which explains the discrepancy in light of the circumstances surrounding issuance and execution. In the case at bar, there is no such testimony,...