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 A ppeal 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 4 42, 447 (Tex. Crim. App. 2010). “ First, we afford almost total deference to a trial judge’s det ermination of2 historical facts. ” Id

. Second, we review a trial court’s application o f 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 suppressi on 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 d emonstrated 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 sam ple, which Hester re fused, obtained a search warrant, transported Hester to the hospit al 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 th e 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 testifie d Binford took her directly to the hospital after her arrest

. S he did not recall being aske d to give a blood sample, taken to the police stati on, or3 read her rights. The warrant indicates that it was signed at 9:36 , after the blood draw and only four minut es 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 bei ng booked at the county jail and the warrant was obtained only four minutes befo re Hester arrived at the jail. The trial cour t 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. T he trial court d etermined 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 tim e on the search warrant was a clerical error. A technical discrepanc y in dates or times do es not automatically render a search warrant invalid

. Green v. State , 799 S.W.2d 756, 7 60 (Tex. Crim. App. 1990). Any d iscrepancies may be cured through parol evidence , such as explanatory testimony. Id

. The record in this c ase contains inconsistencies regarding whether the search warrant was obtained before the blood draw. According to the record , Hester4 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 Binf ord testified that he first took Hester to the police station and then to the hospital only after obtain ing the warrant. W hen asked if he had reason to dispute the tim e on the warrant, Binford stated: “ I don ’ t have my paperwork in front of me, ma’am. I mean, I’ m looking at the p aperwork 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, a s 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 those5 findings are supported by the record

. )

. T he 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 ( “U nless the trial court abused its discretion by making a finding not supported by the record, w e will defer to the trial court’ s fact findings and not disturb the findings on appeal. ” )

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

______________________________ STEVE McKEITHEN Chief Justice Submitted on November 1 2 , 2015 Opinion Delivered November 18, 2015 D o Not Publish Before McKeithen, C.J., Kreger and Johnson , JJ.