Somoza v. State, 01–14–00716–CR

• Court: Court of Appeals of Texas
• Writing for the Court: Evelyn V. Keyes, Justice
• Citation: 481 S.W.3d 693
• Parties: Elder Wilfredo Somoza, Appellant v. The State of Texas, Appellee
• Docket Number: NO. 01–14–00716–CR,01–14–00716–CR
• Decision Date: 24 November 2015

481 S.W.3d 693

Elder Wilfredo Somoza, Appellant
v.
The State of Texas, Appellee

NO. 01–14–00716–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued November 24, 2015

Matthew J. DeLuca, Houston, TX, for Appellant.

Devon Anderson, District Attorney, Erick Kugler, Assistant District Attorney, Houston, TX, for State.

Panel consists of Justices Keyes, Massengale, and Lloyd.

OPINION

Evelyn V. Keyes, Justice

After the trial court denied his motion to suppress evidence, appellant, Elder Wilfredo

481 S.W.3d 696

Somoza, pleaded guilty to the Class A misdemeanor offense of driving while intoxicated, and the trial court assessed his punishment at forty-five days' confinement.¹ In two issues on appeal, appellant contends that the trial court erred in denying his motion to suppress blood evidence because (1) the trial court considered evidence outside of the probable cause affidavit when determining whether probable cause supported the magistrate's decision to issue a search warrant for his blood sample, and (2) the magistrate did not have a substantial basis for concluding that probable cause existed to support the warrant.

We affirm.

Background

On July 31, 2013, Tomball Police Department Officer J. Rodriguez pulled appellant over for speeding at approximately 11:50 p.m. Officer Rodriguez observed "several signs of intoxication, including red bloodshot glassy eyes, [a] strong odor of alcoholic beverage and slurred speech." Appellant admitted that he had consumed two beers prior to being stopped. Based on appellant's performance on the standardized field sobriety tests, Officer Rodriguez arrested appellant for driving while intoxicated ("DWI"). Appellant refused to provide a breath or blood sample.

Officer Rodriguez sought a search warrant to collect a blood sample from appellant. After setting forth Officer Rodriguez's qualifications, the probable cause affidavit stated:

I have reason to believe that on or about July 31, 2013 at 11:59 AM, in Harris County, Texas, the Defendant did then and there unlawfully operate a motor vehicle in a public place while intoxicated. My belief is based on the following:

In this case, I was on patrol in the 14900 block of FM 2920, Tomball, Harris County, Texas, on 7/31/13. I observed a black Nissan Pathfinder driving 61 miles per hour in a 45 mile per hour zone. I initiated a traffic stop and was able to make contact with the vehicle driver and identify him by Texas [driver's] license as Elder Somoza. I noticed the defendant to have red glassy eyes and [he was] slurring his speech. I then began to investigate a possible DWI.

I came into contact with Defendant and noticed a strong odor of alcoholic beverage, red bloodshot eyes, slurred speech, and slow movement. The defendant admitt[ed] drinking 2 beers.

I asked Defendant to perform some field sobriety tests to determine the Defendant's level of intoxication, including the Horizontal Gaze Nystagmus test, One Leg Stand test, and Walk and Turn test....

[I observed] 6 clues of intoxication on the Horizontal Gaze Nystagmus test, 4 clues of intoxication on the One Leg Stand test, and 2 clues of intoxication on the Walk and Turn test.

Therefore, I placed the Defendant under arrest and transported the Defendant to the police station. At the station, J. Rodriguez offered Defendant an opportunity to provide a sample of the Defendant's breath and blood and Defendant declined to provide a sample....

Officer Rodriguez swore to and signed the affidavit before Barbara Benton, a dispatcher for the Tomball Police Department and a notary public, at 1:38 a.m. on August 1, 2013. Officer Rodriguez faxed the probable cause affidavit to a magistrate, who signed a warrant for the blood sample at 2:00 a.m. on August 1, 2013.

481 S.W.3d 697

After being charged with DWI, appellant filed a pretrial motion to suppress the evidence from the blood draw. Appellant pointed out that the probable cause affidavit stated that Officer Rodriguez had "reason to believe that on or about July 31, 2013 at 11:59 AM, in Harris County, Texas, the Defendant did then and there unlawfully operate a motor vehicle in a public place while intoxicated," but the magistrate did not issue the search warrant until 2:00 a.m. on August 1, 2013. Appellant argued that the probable cause affidavit "does not contain sufficient facts within its four corners to establish probable cause that evidence of intoxication would be found in Defendant's blood at the time the search warrant was issued." Appellant argued that, looking solely to the four corners of the affidavit—which is all that courts may consider when determining whether a magistrate properly determined that probable cause to issue a warrant existed—"the magistrate signed the search warrant more than 14 hours after the affidavit alleged that the crime occurred." He further argued that, due to the dissipation of alcohol in the bloodstream over time, "[t]he longer the time gap between the initial stop and the eventual signing of the warrant, the less likely the evidence of intoxication would still be found in Defendant's blood."

At the hearing on his motion to suppress, appellant first objected to the State's "calling any additional witnesses to present new testimony that's not already presented within the [probable cause] affidavit." The trial court overruled this objection. Officer Rodriguez testified that he came into contact with appellant at approximately 11:50 p.m. on July 31, 2013. Officer Rodriguez stated that the probable cause affidavit contained a typographical error; specifically, the affidavit erroneously stated that he came into contact with appellant at 11:59 a.m. when the affidavit should have read 11:59 p.m. Officer Rodriguez testified that he does not work the day shift, and, thus, he was not on duty at 11:59 a.m. on July 31, 2013, and he could not have encountered appellant at that time. He stated that he signed the probable cause affidavit before a notary public at 1:38 a.m. on August 1, 2013, or "a few hours after the stop."

The State also called Barbara Benton, the notary public who witnessed Officer Rodriguez sign the probable cause affidavit, to testify at the hearing. Benton testified that she worked the evening shift—8:00 p.m. to 6:00 a.m.—on July 31, 2013, that that is her typical shift, and that she has worked the evening shift for eleven years. Benton testified that she was not working at 11:59 a.m. on July 31, 2013, and that she notarized the affidavit as soon as Officer Rodriguez brought it to her.

The State and appellant both introduced copies of the probable cause affidavit and the search warrant at the suppression hearing. Both copies of the affidavit contain, on the top of the second page of the affidavit, a time stamp that reads "07/31/2013 12:34 FAX," and both copies of the search warrant contain, on the bottom of the warrant, a time stamp that reads "08/01/2013 01:58" and, on the top of the document, a time stamp that reads "07/31/2013 12:35 FAX." The copy of the warrant that appellant proffered contains an additional time stamp at the top of the warrant that reads "07/31/2013 13:09 FAX."

The trial court stated the following on the record:

I think the facts of this case are pretty clear. In the affidavit to support the search warrant the Tomball police officer wrote down 11:59 a.m, and[,] as he testified, he very simply made a mistake in putting a.m. instead of p.m, and I

481 S.W.3d 698

believe that testimony to be true. We heard—[b]ecause as he testified, [he] was not on duty at 11:59 a.m., had not met the defendant at 11:59 a.m. The officer who notarized the affidavit, she was not on duty at 11:59 a.m., so clearly the Court believes that her testimony it was factually impossible for the officer to have come into contact with the defendant at 11:59 a.m., and that clearly by putting 11:59 a.m. in his affidavit instead of 11:59 p.m., which was clearly a technical mistake on his part, it being very close to midnight, and so the State of Texas has satisfactorily explained the reason for the office[r]—for the affidavit to say a.m. when it should have read p.m., as it being just an honest mistake made by the officer when it was impossible for it to be 11:59 a.m., and clearly the other testimony all reflects that the affidavit was not notarized until after 12:00 a.m. the following day.

The trial court then denied appellant's motion to suppress. Appellant pleaded guilty to the offense of DWI, and the trial court assessed his punishment at forty-five days' confinement. This appeal followed.

Sufficiency of Probable Cause Affidavit

In his first issue, appellant contends that the trial court erred in denying his motion to suppress the blood draw when it considered evidence outside of the probable cause affidavit when determining whether the magistrate had probable cause to issue the search warrant. In his second issue, appellant contends that the trial court erred in denying his motion to suppress because, when only the information contained within the affidavit is considered, the magistrate did not have a substantial basis for concluding that probable cause existed to support a warrant.

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