1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-15-00339-CR

____________________

THE STATE OF TEXAS, Appellant

V.

BARBARA KAY HESTER, Appellee

_________________________________ ______________________ 

On Appeal from the County Court at Law

Polk County, Texas

Trial Cause No. 2015-0142 

____________________________________________ ____________ 

MEMORANDUM OPINION 

The State charged Barbara Kay Hester with driving while intoxicated. The 

trial court granted Hester’s motion to suppress the results of her blood sample. In 

one appellate issue, the State challenges the trial court’s suppression of the blood 

evidence. We affirm the trial court’s suppression order.

We review a trial court’s ruling on a motion to suppress under a bifurcated 

standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 

2010). “First, we afford almost total deference to a trial judge’s determination of 
2

historical facts.” Id. Second, we review a trial court’s application of the law to the 

facts de novo. Id. We sustain the trial court’s ruling if it is reasonably supported by 

the record and is correct on any applicable legal theory. Id. at 447-48.

In her motion to suppress, Hester argued that her blood sample was obtained 

without her consent and without a lawful warrant. At the suppression hearing, 

Officer Paul Binford testified that he arrested Hester during a traffic stop. He 

testified that dispatch had received several calls regarding a white Lexus driving all 

over the road. According to Binford, Hester had dilated pupils, was hesitant and 

unsure when walking, and demonstrated clues of intoxication during field sobriety 

tests. Binford testified that he took Hester to the police department, read her 

Miranda warnings, sought consent for a blood sample, which Hester refused, 

obtained a search warrant, transported Hester to the hospital for the blood draw, 

and transported Hester to the jail. According to dispatch records, Binford arrested

Hester at 7:44 a.m. and arrived at the police department at 7:46. According to 

Binford, he took a warrant to the municipal judge and then returned to the police 

department to transport Hester to the hospital for the blood draw. Hester arrived at 

the hospital for the blood draw at 8:56 and arrived at the jail at 9:40.

Hester testified Binford took her directly to the hospital after her arrest. She 

did not recall being asked to give a blood sample, taken to the police station, or 
3

read her rights. The warrant indicates that it was signed at 9:36, after the blood 

draw and only four minutes before Hester arrived at the jail. Binford admitted that 

no one could obtain a warrant, have blood drawn, and arrive at the jail in only four 

minutes. He denied taking Hester to the hospital without a warrant.

When suppressing the blood evidence, the trial court found that Hester was 

taken to the hospital to have her blood drawn before being booked at the county 

jail and the warrant was obtained only four minutes before Hester arrived at the 

jail. The trial court found a lack of evidence to suggest that the time on the search 

warrant was a clerical error, and the trial court concluded that it was impossible for 

Binford to have obtained the warrant and Hester’s blood sample in those four 

minutes. The trial court determined that Hester’s blood was not drawn pursuant to 

a valid, existing search warrant. 

On appeal, the State challenges the trial court’s finding that the record failed 

to show that the 9:36 time on the search warrant was a clerical error. A technical 

discrepancy in dates or times does not automatically render a search warrant 

invalid. Green v. State, 799 S.W.2d 756, 760 (Tex. Crim. App. 1990). Any 

discrepancies may be cured through parol evidence, such as explanatory testimony. 

Id. The record in this case contains inconsistencies regarding whether the search 

warrant was obtained before the blood draw. According to the record, Hester 
4

arrived at the hospital around 8:56 and the warrant was signed at 9:36. Hester 

testified that Binford took her directly to the hospital for the blood draw after her 

arrest, while Binford testified that he first took Hester to the police station and then 

to the hospital only after obtaining the warrant. When asked if he had reason to 

dispute the time on the warrant, Binford stated: “I don’t have my paperwork in 

front of me, ma’am. I mean, I’m looking at the paperwork that you have; if that 

says 9:36, then that’s what it is.”

At a suppression hearing, the trial court is the sole and exclusive trier of fact 

and judge of the witnesses’ credibility and the weight to be given their testimony 

and may choose to believe all or none of a witness’s testimony. Garza v. State, 213 

S.W.3d 338, 346 (Tex. Crim. App. 2007). Accordingly, as sole trier of fact, the

trial court was entitled to resolve any inconsistencies in the evidence and, in doing 

so, could reasonably conclude that the record failed to contain sufficient 

explanatory testimony establishing that the 9:36 time on the warrant was a clerical 

error. See id. We are “not at liberty to disturb any fact finding that is supported by 

the record.” Id.; see Valtierra, 310 S.W.3d at 447-48; see also Flores v. State, 177 

S.W.3d 8, 14 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (When a trial 

court’s findings accompany its ruling on a motion to suppress, the appellate court 

does not engage in its own factual review, but determines only whether those 
5

findings are supported by the record.). The trial court acted within its discretion by 

finding that the evidence failed to establish a clerical error. See Valtierra, 310 

S.W.3d at 447-48; see also Flores, 177 S.W.3d at 14 (“Unless the trial court 

abused its discretion by making a finding not supported by the record, we will 

defer to the trial court’s fact findings and not disturb the findings on appeal.”). We 

overrule the State’s sole issue and affirm the trial court’s judgment.

AFFIRMED.

 

______________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on November 12, 2015

Opinion Delivered November 18, 2015

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.