Affirmed and Memorandum Opinion filed November 17, 2015.

In The 

Fourteenth Court of Appeals 

NO. 14-14-00634-CR

COLIN M. DEMPSEY, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the County Criminal Court at Law No. 9 

Harris County, Texas 

Trial Court Cause No. 1931495 

M E M O R A N D U M O P I N I O N 

Appellant, Colin Dempsey, was arrested for driving while intoxicated. 

Shortly thereafter, the police obtained a search warrant to take a specimen of 

appellant’s blood. The State charged appellant with the offense and alleged the 

blood analysis showed an alcohol concentration of at least 0.15. See Texas Penal 

Code Ann. §§ 49.01(1)(B), (2)(B) (West 2011), 49.04(a) (West Supp. 2014) 

(providing person commits offense if he operates a motor vehicle in a public place 

with blood-alcohol concentration of 0.08 or higher). 
2

Appellant filed a pre-trial motion to suppress the results of the analysis, 

contending his constitutional and statutory rights were violated because the search 

warrant was not properly based on a probable-cause affidavit. After a hearing, the 

trial court denied the motion. Appellant then pleaded guilty subject to his right to 

appeal the pre-trial ruling. The trial court sentenced appellant to 180 days in jail, 

probated for one year. In his sole appellate issue, appellant contends the trial court 

erred by denying the motion to suppress. We affirm. 

MOTION TO SUPPRESS

Both the Fourth Amendment to the United States Constitution and the Texas 

Constitution protect against an unreasonable search and seizure and provide that no 

search warrant shall issue except upon a warrant based on probable cause as 

supported by an oath or affirmation. See U.S. Const. amend. IV; Tex. Const. art. 

I, § 9. The ultimate touchstone of the Fourth Amendment is reasonableness. Riley 

v. California, ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014).

1

Reasonableness generally requires obtaining a judicial warrant issued upon 

probable cause subject to a few established exceptions. See id. Further, the Texas 

Code of Criminal Procedure provides that no search warrant shall issue “unless 

sufficient facts are first presented to satisfy the issuing magistrate that probable 

cause does in fact exist for its issuance.” Tex. Code. Crim. Proc. Ann. art 18.01(b) 

(West 2015). “A sworn affidavit setting forth substantial facts establishing 

probable cause shall be filed in every instance in which a search warrant is 

requested.” Id.

 

1 Appellant does not argue his state constitutional claim separately from his federal claim 

or contend the state constitution affords greater protections than the federal constitution. 

Consequently, we will analyze the constitutional claim solely under Fourth Amendment law. 

See Manns v. State, 122 S.W.3d 171, 192 n.97 (Tex. Crim. App. 2003).
3

Consistent with his contention in the trial court, appellant argues that the 

search warrant authorizing his blood draw was invalid on its face because the 

documents reflect the warrant was signed before the probable-cause affidavit was 

executed. The warrant and the affidavit were presented at the motion-to-suppress 

hearing. The affidavit was executed by Houston police officer N.J. Correia, who

explained the facts required to establish probable cause.2

 In the search warrant, the 

magistrate made the following recital:

WHEREAS, Complaint in writing, under oath, has been made by N. 

J. CORREIA, a peace officer employed by the Houston Police 

Department, in reference to incident # 147028913-C, which 

complaint is attached hereto and expressly made a part hereof for all 

purposes and said complaint having stated facts and information in my 

opinion sufficient to establish probable cause for the issuance of this 

warrant 

(emphasis in original). The incident number referenced in the magistrate’s recital 

matched the incident number on the officer’s affidavit. As appellant asserts, the 

notarization on the affidavit showed that it was “Sworn to and Subscribed” by the 

officer at 1:10 a.m. on a particular day, but the search warrant had a notation of 

1:06 a.m. that same day for the magistrate’s signature—which preceded the time 

on the affidavit by four minutes.

The trial court did not issue written findings of fact and conclusions of law 

but orally announced the reason for its ruling. See State v. Cullen, 195 S.W.3d 

696, 699 (Tex. Crim. App. 2006) (recognizing that in criminal case, appellate court 

may consider findings orally articulated on the record by trial court). The trial 

court remarked that (1) the magistrate recited an affidavit had been presented to 

him, and (2) “Unfortunately we don’t live in a world with synchronized watches.” 

 

2 Appellant does not challenge whether those facts were sufficient to establish probable 

cause. 
4

Therefore, the trial court essentially concluded that the search warrant was valid 

because it was based on a probable-cause affidavit and the time notation on the 

warrant preceded the time on the affidavit because one of the officials viewed a 

clock with an inaccurate time. 

We may review de novo the trial court’s denial of the motion to suppress

because it turned solely on a review of the relevant documents as opposed to any

factual disputes or evaluation of witness credibility and demeanor and thus the trial 

court was in no better position than our court to decide the motion. See Amador v. 

State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 

85, 87 (Tex. Crim. App. 1997); State v. Garcia, 25 S.W.3d 908, 911 (Tex. App.—

Houston [14th Dist.] 2000, no pet.). 

The State relies on Green v. State, 799 S.W.2d 756, 757–60 (Tex. Crim. 

App. 1990), in which the Texas Court of Criminal Appeals recognized that “purely 

technical discrepancies” do not automatically vitiate the validity of a search 

warrant and must be reviewed “with a judicious eye for the procedural aspects 

surrounding issuance and execution of the warrant” and under “the totality of the 

circumstances.” Appellant relies on further statements in Green indicating there 

must be extraneous evidence in the record explaining that an error on the face of an 

instrument is merely clerical or technical, see id. at 759–61, and asserts the State 

failed to present such evidence in this case. 

Appellant’s contention that the warrant was invalid on its face because of 

the time notation is somewhat inconsistent with his argument that both documents 

together demonstrate there was a “discrepancy.” Regardless, we disagree that the 

warrant was invalid or that there was any material “discrepancy.” 

The version of Texas Code of Criminal Procedure article 18.04 in effect 

when this search warrant was issued provided: 
5

A search warrant issued under this chapter shall be sufficient if it 

contains the following requisites: 

(1) that it run in the name of “The State of Texas”; 

(2) that it identify, as near as may be, that which is to be seized and 

name or describe, as near as may be, the person, place, or thing to be 

searched; 

(3) that it command any peace officer of the proper county to search 

forthwith the person, place, or thing named; and 

(4) that it be dated and signed by the magistrate.

Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 2(E), 1973 Tex. Gen Laws 983 

(amended by Act of May 26, 2015, 84th Leg., R.S., ch. 690, § 1, 2015 Tex. Gen. 

Laws 2165). There was not, nor is there currently, any requirement that a warrant 

show the time of the magistrate’s signature. See id. Thus, we view the time 

notation on this warrant as surplusage, and the fact that the noted time preceded the 

time on the affidavit did not render the warrant invalid. The warrant contained all 

the requirements of article 18.04 and reflected it was based on a probable-cause 

affidavit as required under the Fourth Amendment and article 18.01(b). See U.S. 

Const. amend. IV; Tex. Code. Crim. Proc. Ann. art. 18.01(b). 

However, even if we consider the time notation, we conclude the warrant 

was valid. The magistrate recited that he based his probable-cause determination 

on an already-executed affidavit and the magistrate’s time notation preceded the 

time on the affidavit by only four minutes. Consequently, it is a reasonable 

inference that one of the instruments contained the wrong time, whether the official 

mistakenly wrote the incorrect time or viewed a clock that was inaccurate. 

In this regard, we disagree with appellant’s argument that Green is 

controlling. In Green, the court held that the trial court erred by denying the 

defendant’s motion to suppress the results of a search because the search warrant 

was stale when executed. See 799 S.W.2d at 759–61. The warrant twice showed 
6

an issuance date of March 20 and showed an execution date of March 25. Id. at 

757, 760–61. At that time, there was a requirement that a warrant be executed 

within three days exclusive of the date of issuance and execution, and thus the face 

of the instrument showed it was stale when executed. See id. at 757. The court 

held that extraneous evidence was required to show the March 20th notation was 

merely an error, but the State failed to present such evidence. See id. at 759–61. 

The court also rejected the State’s attempt to rely on the probable-cause affidavit to 

correct the error. See id. at 760–61. The State contended that because the police 

officer swore he obtained his information on March 25 and the warrant recited it 

was issued the same day as execution of the affidavit, the March 20 date was an 

error and the warrant was issued March 25. See id. at 760. The court held that the

defect was not curable solely by reference to the officer’s affidavit which was 

“itself a part of the controversy” and extraneous evidence was required to show 

March 20 was a clerical or technical error. See id. at 760–61. 

Green is distinguishable from the present case for several reasons. In Green, 

(1) the dispositive issue was a stale warrant; (2) the defect existed on the face of 

the warrant because it included both the issuance and execution dates, which 

negated timely execution; (3) the defect involved the issuance date, a statutory 

requirement for a warrant; and (4) the alleged error in the recorded issuance date 

was a mistake of being five days before the actual issuance date. See id. at 757–61. 

In contrast, in the present case (1) the issue is whether a warrant was properly 

based on a probable-cause affidavit; (2) there was no defect on the face of the 

warrant negating that requirement was satisfied, but rather appellant relies on 

reading both instruments together to assert the warrant was invalid; (3) the alleged 

defect concerned a discrepancy in noted times, which was not a requirement for the 

warrant; and (4) the alleged discrepancy involved only four minutes. We conclude 
7

that we may also read the instruments together to determine that, based on the 

totality of the circumstances, the affidavit was signed before the warrant and the 

preceding time on the warrant resulted from a clerical or technical error. 

In summary, the trial court did not err by denying appellant’s motion to 

suppress. Accordingly, we overrule appellant’s sole issue and affirm the trial 

court’s judgment. 

 

 /s/ John Donovan 

 Justice 

Panel consists of Justices Boyce, McCally, and Donovan.

Do Not Publish — Tex. R. App. P. 47.2(b).