Opinion filed January 8, 2015
In The
Eleventh Court of Appeals
__________
No. 11-13-00056-CR
__________
GORDON STANLEY BLOCKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 9
Tarrant County, Texas
Trial Court Cause No. 1266266
MEMORANDUM OPINION
Gordon Stanley Blocker pleaded guilty to driving while intoxicated (DWI). 1
The trial court assessed punishment at confinement for ninety days and also
assessed a $500 fine, but the court suspended Appellant’s confinement and placed
1
TEX. PENAL CODE ANN. § 49.04 (West Supp. 2014).
him on community supervision for one year. Appellant challenges the trial court’s
denial of his motion to suppress blood-draw evidence. We affirm.
I. The Charged Offense
The State charged Appellant by information with the offense of DWI. A
person commits the offense of DWI, a Class B misdemeanor, if he is “intoxicated
while operating a motor vehicle in a public place.” PENAL § 49.04. A Class B
misdemeanor is punishable by confinement in jail for a term not to exceed 180
days and by a fine not to exceed $2,000. Id. § 12.22 (West 2011).
II. Background Facts and Procedural History
Patrick Kyle Truly, a patrol officer with the Hurst Police Department,
testified at a pretrial hearing that he received a dispatch to go to a parking lot in the
600 block of East Hurst Boulevard to respond to a report of a hit-and-run accident.
The original accident occurred in the 100 block of Hurstview Drive.
Officer Truly testified that he arrived at the scene and spoke with
Officer Hull, who was already there. Officer Truly discovered that Appellant was
the driver of one of the vehicles at the scene. Officer Hull informed Officer Truly
that Appellant said that he did not realize he had been in an accident and that
Appellant was “swaying,” “appeared to be off-balance,” and “had watery eyes.”
Officer Truly testified that, in his experience, those were signs of intoxication.
Officer Truly spoke with Appellant, and during that conversation, Appellant was
“stumbling,” “appeared to have difficulty standing straight,” had slurred speech,
was “thick-tongued,” and said that he was “driving from . . . Grapevine to a hotel
in Hurst.” Officer Truly said that Appellant was headed in the wrong direction to
get to the hotel and was unsure of his location.
Officer Truly administered standardized field sobriety tests to Appellant.
Appellant showed six clues out of eight on the “horizontal gaze nystagmus” test,
seven clues out of eight on the “walk and turn” test, and two clues out of four on
2
the “one leg stand” test. Appellant’s demeanor and his performance on the
standardized field sobriety tests gave Officer Truly probable cause to arrest
Appellant for DWI; he arrested Appellant and took him to the Hurst jail. While at
the jail, Appellant agreed to take a breath test. The breath test results reflected that
Appellant had a blood alcohol concentration of 0.029 and 0.026. Officer Truly
obtained a search warrant to draw blood from Appellant, and a sample of
Appellant’s blood was taken. Appellant moved to suppress the blood-test
evidence, and the trial court denied the motion. Appellant pleaded guilty and now
appeals the trial court’s denial of that motion.
III. Issue Presented
Appellant challenges the trial court’s denial of his motion to suppress
evidence because he claims that the affidavit to obtain the search warrant for a
blood draw failed to show probable cause.
IV. Standard of Review
We examine the totality of the circumstances to determine whether facts
alleged in a probable cause affidavit sufficiently support a search warrant.
Illinois v. Gates, 462 U.S. 213, 230–31 (1983). We will interpret the affidavit in a
common-sense, rather than hyper-technical, manner. Id. at 236. We accord great
deference to the magistrate, who may draw reasonable inferences from the facts
and circumstances alleged, and will uphold the magistrate’s probable cause
determination if he “had a ‘substantial basis for . . . conclud[ing],’ that a search
would uncover evidence of wrongdoing.” Id. at 236 (alterations in original)
(quoting Jones v. United States, 362 U.S. 257, 271 (1960)). But probable cause is
not shown where the magistrate has drawn too many inferences and the basis for
the affidavit is tenuous instead of substantial. Davis v. State, 202 S.W.3d 149, 157
(Tex. Crim. App. 2006).
3
V. Analysis
Police may draw a DWI suspect’s blood for investigation when they obtain a
search warrant based on an affidavit that presents facts that establish probable
cause. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; TEX. CODE CRIM.
PROC. ANN. art. 18.01(b), (j) (West Supp. 2014); Beeman v. State, 86 S.W.3d 613,
616 (Tex. Crim. App. 2002). Facts establish probable cause if they show that a
“fair probability” or “substantial chance” exists that contraband or evidence of a
crime will be found at the specified location. Flores v. State, 319 S.W.3d 697, 702
(Tex. Crim. App. 2010) (quoting Gates, 462 U.S. at 238, 243 n.13). The
magistrate uses the totality of the facts and circumstances in the affidavit to
determine whether probable cause exists. Id. (citing Gates, 462 U.S. at 238).
Appellant complains that Officer Truly’s affidavit does not show probable
cause that Appellant had operated a motor vehicle, that his physical condition was
due to the introduction of prohibited substances, and that he had refused a blood
test. The probable cause affidavit, which was prepared by Officer Truly, provided
in part:
5. . . . Defendant was driving southbound in the 100 block of
Hurstview Drive when defendant’s vehicle was involved in an
accident with a parked vehicle at a garage sale. Defendant continued
southbound then turned eastbound onto West Hurst Blvd. (400 West
Hurst Blvd). The victim then began following defendant until the
defendant stopped in a parking lot at 600 East Hurst Blvd.
Officer Hull #647 arrived on scene first and advised the
defendant stated he did not realize he was involved in an accident.
Defendant was swaying, appeared off-balanced and had watery eyes.
He appeared to have difficulty comprehending an accident occurred
and that there was any damage to his vehicle.
I spoke with defendant on scene. Defendant was stumbling and
appeared to have difficulty standing straight. His speech was slurred
and was thick-tongued. Defendant advised he was coming from his
4
residence in Grapevine to a hotel in Hurst, located at 800 Thousand
Oaks (going the wrong direction). Defendant was unsure what street
he was on. He stated he had not consumed any alcoholic beverages
and was not on any medication. He also advised he was healthy and
had no medical conditions.
Due to defendant being involved in an accident and being
unaware, his slurred speech, watery eyes, and off-balanced
movements, I requested defendant to perform SFST’s. Defendant
exhibited six clues on the HGN. On the Walk and Turn, defendant
had difficulty following instructions, exhibited seven clues and never
fully completed the test. On the One Leg Stand, instructions were
repeated multiple times and defendant again never fully completed the
test.
I placed the defendant under arrest for DWI. During the
interview, defendant agreed to give a sample of his breath. Results
indicated a sample of 0.029 and 0.026. During the test, defendant
advised he may have consumed one beverage that contained alcohol.
Defendant also agreed to give a blood sample, but later refused.
....
I made the following observations about the suspect:
[Under “Balance,” “swaying” and “unsteady” are
marked; under “Walking,” “staggering” and “swaying”
are marked; under “Speech,” “slurred” and “thick-
tongued” are marked; under “Eyes,” “watering” is
marked; under “Odor of Alcoholic Beverage on breath,”
“slight” is marked; and beside “Suspected impairment
caused by:” “alcohol & drug” is marked.]
6. I have seen intoxicated persons on many occasions in the
past. Based on all of the above and my experience and training, I
determined that the suspect was intoxicated, and I placed the suspect
under arrest for Driving While Intoxicated. I requested a sample of
the suspect’s breath and/or blood, which the suspect refused to
provide.
5
Appellant complains that portions of the affidavit are conclusory and that the
magistrate had to draw too many inferences to find probable cause. The magistrate
makes his determination of probable cause after a review of the entire affidavit, not
after a review of isolated statements. See CRIM. PROC. art. 18.01(b); Flores, 319
S.W.3d at 702. The magistrate could have found the following facts from
Officer Truly’s affidavit:
(1) Officer Truly was a peace officer with the Hurst Police Department;
(2) Appellant was the named suspect, and the Hurst Police Department
had custody of him;
(3) Officer Hull relayed to Officer Truly that Appellant was swaying,
appeared off-balanced, had watery eyes, said he did not realize he was
involved in an accident, and appeared to have difficulty
comprehending an accident occurred and there was any damage to his
vehicle;
(4) Officer Truly spoke with Appellant and observed that he was
stumbling, appeared to have difficulty standing straight, had slurred
speech, and was thick-tongued;
(5) Appellant told Officer Truly that he traveled from Grapevine to Hurst
and told Officer Truly that he had not consumed any alcoholic
beverages, was not on any medication, was healthy, and had no
medical conditions;
(6) Officer Truly, based on his observations of Appellant, administered
standardized field sobriety tests to Appellant, and Appellant showed
signs of intoxication, so Officer Truly arrested Appellant for DWI;
(7) Appellant’s breath test results were 0.029 and 0.026; and
(8) Officer Truly requested a blood sample, and Appellant refused to give
one.
See Gates, 462 U.S. at 236 (explaining that courts review probable cause affidavits
using common sense). The magistrate also could have inferred that Officer Hull,
who had spoken to Appellant, and Officer Truly, with his knowledge, training, and
experience, had deduced that Appellant had operated a vehicle while intoxicated
and that Appellant had caused an accident that damaged Appellant’s vehicle.
6
Furthermore, the magistrate could have determined that Appellant’s blood sample
was evidence that would confirm Appellant’s intoxication. See id. at 240
(explaining magistrates may make reasonable inferences from the facts and
circumstances in the affidavit).
We hold that the affidavit outlined facts that showed a “fair probability” or
“substantial chance” existed that Appellant’s blood contained evidence of DWI.
See Flores, 319 S.W.3d at 702. The magistrate did not err when he found probable
cause based on the affidavit because the totality of the facts and circumstances
outlined in the affidavit provided the magistrate with a substantial basis for
concluding that a search would uncover evidence of wrongdoing. See Gates, 462
U.S. at 236, 238, 240. We hold that the affidavit to obtain the search warrant for a
blood draw showed probable cause. Accordingly, we overrule Appellant’s sole
point of error.
VI. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
January 8, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
7